The resort to kettling as a preliminary strategy of the London Met has left many of us worried – not to mention cold, hungry, and angry for hours at a time. Those of us who have been subject to the pigpen have many stories to share about being detained for hours on end without medication, proper clothing, food, or communication with outside parties. And we are worried, not just about the growing prevalence of this strategy as a way of forcibly delimiting the spaces of public protest, but also because of its potential effects on the hearts and minds of protestors and other demonstrators-in-the-making.

In several conversations I have had with comrades who’ve been rounded-up on one or more occasions, there has been a recurring theme of concern. These individuals articulate a hesitation about going to future actions for fear of long detainment in (especially as Winter sets in) less than desirable conditions. Of course, one might respond to such concerns with a simple ‘get over it – dress warm and see you on the streets’. There is some important advice to heed in such a retort. Certainly we don’t want to be giving the London Met any credit in scaring us off with their strategies of containment. We could – and will – wait them out any day.

However, as kettling becomes a normalized tactic at large-scale demos, many who would normally be inclined to demonstrate for a few hours talk about staying away for fear of being contained for an entire day. Certainly, the potential deployment of kettling makes it difficult for those with children or other obligations to commit to being on the streets. Moreover, since the normalization of the tactic, I have seen the mere arrival of the would-be kettlers strike fear in people on the streets for fear of arbitrary detention. Now, I am no proponent of liberal democracy but it strikes me that, even on its own terms, the normalization of this strategy has serious consequences for the liberal conception of public dissent.

And Lois Austin agrees with me.

Austin, a demonstrator kettled at Oxford Circus in 2001 during a May Day march, recently challenged the tactic (Austin v Commissioner [2009] UKHL – represented by Christian Khan). Austin argued that the use of kettling was a deprivation of her liberty and constituted a breach of Article 5 of the ECHR. The courts sided with the police in the original case, as well as on appeal and in the House of Lords. In the House of Lords case, Lord Hope claimed “…measures of crowd control will fall outside the area of [Article 5], so long as they are not arbitrary. This means that they must be resorted to in good faith, that they must be proportionate and that they are enforced for no longer than is reasonably necessary” (12). The case has now gone to the ECtHR – along with two other cases represented by Bindmans (Lowenthal and O’Shea) and another by Liberty (Black) – and isn’t expected to be heard for several years. For those eager to wait for the case hearings or the police to act in ‘good faith’, I must say that holding one’s breath has shown to have seriously adverse health effects.

Significantly, what the Lords spent considerable time elucidating in Austin was the police force’s need to respond to an “unexpected” threat from protestors who i) did not negotiate their plans with the police, and ii) broadcasted the likelihood of serious property damage. Indeed, the legitimacy of kettling in this instance rested on the understanding of it as a spontaneous reaction, rather than an institutionalized strategy for policing dissent. However, as we see the proliferation of the strategy as normalized tactic, beginning in some cases before demonstrations even begin (see reports from Birkbeck students on the morning of 24 November 2010), the Lords’ reasoning (unsurprisingly) falls short.

Although one might hope that the adverse effects of kettling as a normalized tactic would catch the attention of some Lord almighty (and it may well in the pending Judicial Review investigating the proportionality of the police tactics), the innumerable avenues for clemency available to the police do not inspire hope. In addition to the judges’ justification of the tactic based on the immediacy of the situation, they also legitimized it on the grounds that Austin continued to have access to a megaphone (and therefore her right to freely express her opinions), that there was a potential threat to public safety which only the police could know and monitor at the time, and that it was reasonable, given the actions of some, to detain all. As David Meade argues,

What we see in Austin is effectively collective guilt by association – and the larger the potentially guilty group (that is the larger the numbers of those threatening or becoming violent), the more defensible it is for the police to exercise indiscriminate control. They do not need to make specific allegations of the likelihood of trouble against any one person provided they can identify a cohort they cannot isolate and deal with separately. (Mead [2009] EHRLR: 9)

Not that any of this is new or particularly shocking for most of us. What is significant however, is the prevalence of “guilt-by-association” that circulates in this reasoning, and its resonance with that of the most recent comments made by UK Police Minister Nick Herbert. In an interview with the Guardian’s Andrew Sparrow, Herbert warned potential demonstrators of the perils of taking to the streets for the National Day of Action on 9 December 2010. Herbert claims,

anybody joining one of these demonstrations must take care…if you know, having seen the scenes on the previous week, that there is a group of people who are bent on violence, on causing criminal damage, on intimidation, on breaking the law, any of us would think twice, wouldn’t we, about whether we wish to be associated with those people” (emphasis mine, Friday 3 December 2010).

Herbert’s opaque comments here are analogous to the amorphous powers of the police themselves – both are driven by vague crypticisms that can be put to use as the wielder (or the wielder’s Staff Sergeant) sees fit. As Walter Benjamin aptly put it in 1921, “the violence of the police is as amorphous as its phantom manifestation (nowhere graspable, everywhere in evidence)”. Given these comments and the judges reasoning in the Austin case, it is likely that “guilt-by-association” will legitimize the use of kettling at upcoming student demonstrations merely as a result of the “violence” at previous demos.

The impulse to seek legal redress against kettling is tempting – indeed, the hopes of finding a thread which would unfurl the tightly woven powers of the police in these instances is enticing. But the fact of the matter is firstly, that cases, reviews, and reports (such as the HMIC Denis O’Connor’s report “Adapting to Protest”) come after the fact. They have no way of retroactively helping us on the streets when we are dealing with police violence. Secondly, and more foundationally, if such a thread was found, I imagine it would unravel to reveal countless more sweaters, all hand-stitched with loving care by the promises of liberal democracy. These promises, designed to self-legitimize themselves, produce endless justifications for the necessary delimitations of freedom in the name of state security. Here I do not only mean the contemporary experience of governance through securitization, but also the very stability of the state. As we continue to invest our political hopes in these state-sanctioned approaches, we remain dependent on and invested in these promises of liberal-democracy that will continue to allow the police to utilize their powers largely how they see fit.

Kettling is a terrible tactic both for those caught between the police lines, and for those who fear such a fate. But perhaps rather than attempting to frustrate the strategy through legal means, our plan of action should be to show its incapacity to work on the streets. We saw a minor glimpse of this on Wednesday 24 November 2010 when upon a police attempt to kettle, hundreds of demonstrators went running in sporadic directions, indirectly creating dozens of anarchic snake marches in central London. These splinter groups may have challenged the aesthetic of the single mob-demonstrations that are so photo-friendly, but their uncontainability is a real threat to kettling. Perhaps then Herbert’s comments should not be a ‘warning’ to those planning on turning up to the day of action on 9 December, but rather an incitement to creative approaches in rendering kettling an ineffective police tactic.