At almost 2am on the morning of 8th June, a police officer finally stepped aside to let Monique start the long walk home. She had been held by the police in the street for 6 hours. She had not been arrested, had not committed a crime, or even been accused of one.
Monique was a BPLS Legal Observer who had been monitoring the protest that day. For most of the day the protest had been lively but peaceful. The protestors, who in this case were largely young people and teenagers, had been showing their support for the Black Lives Matter movement by exercising their right to peacefully protest, and playing some music and games along the way. At around 7:30pm, that all changed.
At 7:30 police started cordoning off the area around the young protestors. They then surrounded them with riot vans and riot shields and pinned them in from every side. These protestors had not attacked anyone, were not carrying weapons; most of them still had to make it home for dinner. Instead, they spent that evening face-to-face with riot police and with no access to toilets or food, for 6 hours.
This is called a kettle.
‘Kettling’ is a common police tactic. It is ostensibly used to limit dangerous individuals, but by its very nature it captures hundreds of innocent protestors in its net. And once they are ‘kettled’, the protestors’ rights often become confused. In past cases police have ended up treating everyone within a kettle as if they’re under arrest, or used it as a method to harvest information. Both of these practices have been shown to be illegal.
In this article we will explain what powers the police do have when kettling, what rights you have inside a kettle, and some tips on how to spot when the police are overstepping the line.
The rules of kettling
The police’s power to kettle comes from common law; this means there is no legislation which specifically refers to it. As such, there is no specific written list of the rules of kettling. Instead, the rules have emerged from a series of past cases, and they continue to change as new cases emerge. Below is an explanation of the current main rules and limits on police power.
1. What grounds do the police need for kettling?
The police can lawfully impose a kettle if they believe it is necessary to prevent disorder or protect public safety. Unfortunately, despite the UN’s recent statement that governments must avoid using “generalised references to public order or public safety, or an unspecified risk of potential violence” as an excuse to kettle a protest, the police have been shown to use a broad discretion for this judgement. Police have been known to kettle groups of people who haven’t behaved violently at all, under the pretence of ‘protecting the peace’.
However, in the Austin case, the House of Lords (and then the European Court of Human Rights) did confirm that a kettle had to be:
resorted to in good faith,
enforced for no longer than was reasonably necessary,
for a legitimate purpose,
used when no alternative was available, and
the least intrusive and most effective measure available.
The police have been given a wide discretion to make these judgements so far. However, if you are caught in a kettle it can be useful to ask why they decided it was necessary as it may be open to challenge at a later date.
2. How long can a kettle last?
Just as the police have been allowed a wide discretion over their reasons for the kettle, they have been allowed similar discretion over the duration of the kettle. The police can kettle for as long as they consider there is a “threat” to the peace. Previous kettles have lasted up to 8 – 10 hours.
However, they must be able to defend their decision throughout this time. If protestors are calm and non-violent, then any decision to maintain the kettle past this point may be challenged.
3. What happens if I’m vulnerable or need assistance while I’m in the kettle?
One limitation to the length of a kettle should be the simple practicalities of any large group of people in one place for a period of time.
As any event organiser will know, people need amenities; they need water, toilets, food, places to rest. And these needs are only amplified the longer the people remain in one place. Technically the police are required to provide these.
The Metropolitan police should designate a ‘containment manager’ who is in charge of providing these services. They may call this manager a Bronze/Silver/Gold Commander.
In 2011, after particularly questionable kettling tactics were used against student protests, then Assistant Commissioner Lynne Owens told Reuters that “water and portable toilets would be made available to those who find themselves caught up behind police lines” in future protests and that police would effect “a very fast release of the people involved in the containment, particularly those who have not been involved in violence.”
However, reports from kettling cases since then, including the BLM protests in June 2020, suggest that this promise has not been kept. Instead, protestors have been left for hours with no access to facilities, with peaceful protestors and non-protestors caught up as well.
If you find yourself in a kettle for a long period of time, make it clear that you need access to facilities, especially if you have relevant personal circumstances, such as a disability, old age, pregnancy, etc. If the police do not provide any facilities and/or do not let vulnerable people leave, this decision can be challenged at a later date.
If the police do refuse to provide facilities or let a vulnerable person out they could be breaching their duty not to discriminate. The Equality Act 2010 provides 9 ‘Protected Characteristics’; if you are forced into a position which is particularly challenging for you due to one of these characteristics, then the police may be acting unlawfully. If you are unsure, take a note of the situation and the officer’s shoulder number, and contact us here for advice.
4. Can the police question or search me if I get caught in the kettle?
A lot of confusion has arisen surrounding what the police can do while a kettle is in place.
The key point to remember is that kettling is not the police accusing you of a crime, or arresting you. You are still innocent while within the kettle and have the same rights you did outside (minus the liberty to leave, and they must justify their grounds for that). The police therefore cannot:
Require you to give them your details,
Require you to give them your phone,
Stop you taking photos or filming,
Require you to stand still or show your face for a photo for them,
Stop and search you any more than they can outside of the kettle (see our article on stop and search powers here).
These may change if the police do decide to charge you with something. For example, if they have reasonable grounds to believe that you specifically have or are likely to engage in criminal behaviour. We will be publishing further articles to provide advice on charges which the police commonly try to bring.
5. What is a “Section 50” Order, and can the police use this to question me in a kettle?
During the 6th/7th June protest kettling of BLM protestors, the police attempted to question people for their name, address and date of birth, and to film them from head to toe. They claimed to be doing this under the powers conferred in Section 50 of the Police Reform Act 2002.
However, Section 50 is only supposed to be used for an individual who “has been acting, or is acting, in an anti-social manner”. As mentioned above, the kettling has nothing to do with anti-social behaviour; kettles are formed not because people have done anything but because the police believe that they might. Further, given the wide range of the net when kettling, a lot of the people caught up in a kettle are simply in the wrong place at the wrong time, and their behaviour wasn’t even relevant to the kettling decision.
Either way, the fact that people are in a kettle is not a sign that they have behaved antisocially or violently. At that time, they are still innocent people who have been contained. The police have no power to treat kettled protestors as anything other than innocent unless they can prove otherwise and so, just as they shouldn’t use Section 50 powers on an innocent person walking down the road, they should not use it on innocent people within a kettle.
The same is true if they ask to search you, or to let them take your picture.
6. Can the police question me as I leave the kettle?
In November 2011, Susannah Mengesha was a legal observer at a trade union march in London. The police decided to kettle the protestors and, despite not being an active protestor, Susannah was caught in this kettle. When the police judged that any apparent risk of a breach of the peace had passed, they released everyone within the protest individually. On their way out the police filmed each one and asked for their personal details, claiming justification under Section 50 of the Police Reform Act 2002.
Although she gave over her details at the time, Susannah challenged this practice, and in 2013 the Court confirmed that this was unlawful. The Mengesha case now stands as important legal precedent on the limits of police powers.
When you are in a kettle you are still considered innocent. This does not change when you are in the process of leaving. The police cannot force you to give them your details, cannot force you to let them take a picture and cannot detain you any longer than necessary. If they do try any of these and you refuse, they cannot use this as a reason to deny you the right to leave the kettle. To stop you leaving they must believe that there is either still a threat of future breach of the peace, or that you specifically pose a threat.
If you are leaving a kettle, the police may ask your name. You can refuse to answer by saying “no comment.” This might seem intimidating – but remember, it is your legal right.
Key points if you are caught in a kettle:
Remain calm, this does not mean you have been accused of anything.
Continue to protest peacefully; do not become violent but do not feel the need to stop protesting.
If you feel comfortable doing so, ask police officers why they have decided that you are at risk of breaching the peace.
If you need facilities such as toilets, make the police aware. If they refuse, ask to speak to the containment officer.
If you are particularly vulnerable, ask to leave the kettle. If they refuse, take a note of the police officer’s name and number.
Unless they accuse you of a specific crime, you do not need to tell them your name or details, let them take your photo or let them search you (see Stop and Search article here).
When they release people from the kettle, they cannot put any conditions on this; this includes asking for your details, searching you or taking your photograph.