What is a kettle?

When and why do the police kettle?

How long can the police keep people in a kettle?

Will those held be arrested or released?

Do the police use kettles for data gathering?

Can the police search me while I am in the kettle, or when I leave?

Do the police have the right to photograph me?

How can I avoid being caught in a kettle?

Can the police use force to form a kettle?

What is the law relating to kettles?

What is a ‘kettle’?

Sometimes on a protest, police surround demonstrators to keep them in a particular place. This is called a ‘kettle’, or in official police language, ‘containment’. Kettles can be very large, holding hundreds, sometimes thousands of people, or can be very small, containing only a dozen. The key feature of a kettle is that people are held within it until the police decide to let them go. In a number of recent incidents, police have decided against releasing kettled protesters, and instead have carried out a mass arrest of everyone held.

When and why do the police kettle?

The police can lawfully impose a kettle if they believe it is necessary to prevent disorder or protect public safety. They should not use a kettle to ‘directly or indirectly stifle or discourage protest’. Kettling has come under strong criticism from many civil rights and activist groups. It involves holding protesters in uncomfortable, even dangerous conditions for many hours, and has a deterrent effect on protest.

Police can kettle a group or crowd of people, even if they have done nothing to suggest they will cause a breach of the peace, if it is necessary to prevent disorder by others (see cases below).

Police do not necessarily kettle an entire group. Protest that move quickly along unplanned routes are more difficult to kettle, as it takes time to position sufficient numbers of police officers. The police may instead break off and kettle parts of the protest group, in smaller numbers.

Police also feign kettles – make it look as though they are about to kettle – to disperse a protest or make protesters move away from a certain area.

How long can the police keep people in a kettle?

The police can kettle for as long as it is necessary to prevent a breach of the peace. If there is no longer an imminent threat of a breach of the peace, the police do not have the power to detain further, but the police have a great deal of discretion in deciding when such a threat has past. Kettles of large demonstrations such as the student protests in December 2010 were in place for eight to ten hours.

The Metropolitan police deploy ‘containment managers’, senior police officers responsible for deciding the duration of the kettle and how people will be dispersed. Containment managers should also draw up a release plan ‘to allow vulnerable or distressed persons or those inadvertently caught up in the police containment to exit‘. They are also responsible for providing essential utilities such as toilets and water, where this is necessary and ‘practicable’.

In practice vulnerable or uninvolved people are often caught up in kettles, and little is usually done to identify and release them. The court judgement in Castle (see below) did little to encourage police to protect individuals who may come to harm in a large or lengthy police kettle. Journalists are often caught up in kettles, with police taking a discretionary approach to the recognition of press cards. Toilet facilities may not be provided at all, and if they are, may be inadequate. In such circumstances, people may want to consider making formal complaints or taking legal advice regarding civil action.

Will those held be arrested or released?

A number of recent kettles have ended with mass arrest, including a critical mass bike ride, anti-fascist demonstration and student protest. Police may have grounds to arrest those held in a kettle if it is necessary to prevent further breaches of the peace, or if there is reasonable suspicion that each individual arrested has committed a criminal offence. However, if arrests are arbitrary and indiscriminate, the police may be acting unlawfully. Anyone arrested after being held in a kettle is strongly advised to get legal advice.

Alternatively, the police may release people from the kettle, either en masse, or by a process of ‘controlled dispersal’. This will usually involve allowing people to leave in pairs or small groups by one or more exit points, which are determined by the police. In the past this was often been used as an opportunity to take photographs / personal details from people who have been kettled, but this practice has been found to be unlawful (see case of Mengesha, below).

Do the police use kettles for data gathering?

Kettles have always been viewed by the police as a source of valuable intelligence. It was usual for the police to take names, addresses and/or photographs of people as a condition of them being released from a kettle – people who refused to provide this data were often told they would be unable to leave. The High Court found this practice to be unlawful in the case of Mengesha v Commissioner of Police for the Metropolis.

Mass arrests provide an alternative method of gathering the personal data of everyone involved, including data from mobile phones. Although data is gathered on everyone arrested, in most cases of mass arrest only a very small percentage of people have been charged and prosecuted. For this reason some activists have suggested that people should withhold their details when arrested en masse, unless they are charged.

The police also have a general power to take names and addresses without making arrests if they ‘reasonably believe’ a person has been engaging in anti-social behaviour (Section 50 Police Reform Act). Anti-social behaviour (ASB) is defined as causing harassment, alarm or distress to someone. This power should not be used in relation to peaceful protest, even if the protest has involved some unlawful activity. If you are threatened with the use of ‘section 50’ ask the police to explain exactly what they believe you have done that has caused harassment alarm or distress.

Can the police search me while I am in the kettle, or as I leave?

The police can carry out a search at any time if they ‘reasonably suspect‘ you are carrying something unlawful, or if there is a ‘section 60‘ authorisation in place. Section 60 of the Criminal Justice and Public Order Act 1994 allows police to stop and search anyone, without suspicion if the police feel there is a likelihood of serious violence, or if they have reason to believe weapons or ‘dangerous instruments’ are being carried. Section 60 authorisations are often put in place for large scale protest.

These stop and search powers DO NOT give the police the right to demand your name and address, or pose for photographs.

Do the police have the right to photograph me?

The police, like anyone else, can take photographs in a public place. But they DO NOT have the right to make you pose, or to use force to take the photo. You have the right not to co-operate with police photography.

There have been instances of the police using force to take photographs of people held in a kettle, such as grabbing hair to hold a person’s face to camera. If this happens to you, take legal advice, as you may be able to make a claim against the police for assault.

If you are arrested for a recordable offence the police can take photographs (as well as fingerprints) by force. This should not apply if you have been arrested only to prevent a breach of the peace.

How can I avoid being caught in a kettle?

Sometimes it is possible to see a kettle being formed and to move away quickly before the kettle closes, but it is often hard to see it coming. Processions which move quickly are more difficult to kettle, but may be easier to split up or disperse. Police may be reluctant to form kettles at key strategic locations (outside a possible protester target, for example, or major road junction), or where protesters are difficult to isolate from members of the public.

Police also use the tactic of feigning kettles – making it look as though they are about to kettle – in order to encourage protesters to move away from a strategic location, or to disperse a crowd.

Can the police use force to form a kettle?

The police can use reasonable force to form a kettle, and to hold people inside it. What force is ‘reasonable’ will depend on the circumstances. If you feel the police have used excessive force, you should get legal advice.

What is the law relating to kettles?

There is no legislation relating to kettles – the powers of the police to kettle come from their common law powers to prevent a breach of the peace.

There have been a number of judgements from the courts:

Austin

This case was brought by Lois Austin and three other people who were held in a kettle of up to 3000 people in Oxford Street on Mayday 2001. The kettle lasted for 7 hours, during which time there was heavy rain, and they had no access to toilets, food or water.

The House of Lords in Austin found that kettling would be lawful where it:

had been resorted to in good faith

was proportionate to the situation which had made the measures necessary

was enforced for no longer than was reasonably necessary

was for a legitimate purpose, for example to protect people and property from injury or to prevent serious public disorder or violence.

The European Court of Human Rights in Austin v UK also found the kettle to be lawful, but gave weight to considerations that the police had ‘no alternative…if they were to avert a real risk of serious injury or damage’, and that the kettle was the ‘least intrusive and most effective’ measure available.

The ECtHR also stated that kettles ‘should not be used by the national authorities directly or indirectly to stifle or discourage protest’

McClure and Moos

This case was brought by two protesters at a Climate Camp in Bishopsgate in 2009. Around 4000-5000 protesters were kettled by police who claimed it was necessary to prevent protesters from a nearby protest which had been ‘disorderly to the point of serious violence’ joining the camp and causing a further breach of the peace.

The Divisional court found the the actions of the police had been unnecessary and unjustified; while there was a risk of disorder, it was not certain enough for the breach of the peace to be ‘imminent’.

The Metropolitan police appealed the decision and the Court of Appeal found the police actions to be lawful. It held;

“We have concluded that a decision to contain a substantial crowd of demonstrators, whose behaviour, though at times unruly and somewhat violent, did not of itself justify containment, was justifiable on the ground that containment was the least drastic way of preventing what the police officer responsible for the decision reasonably apprehended would otherwise be imminent and serious breaches of the peace, as a result of what he reasonably regarded as the immediate risk of the crowd being joined by dispersing demonstrators from another substantial crowd, which had itself been contained, as its behaviour had been seriously violent and disorderly.”

Castle

This case was brought by two boys and a girl who had been 16 and 14 respectively at the time of the kettle. They were on a student demonstration which had been kettled in Whitehall. The claimants were held for between 6 – 8 hours in freezing temperatures, in conditions which were themselves dangerous – police recorded instances of robbery within the kettle, and bus shelters and street furniture were being burned. The claimants argued that the police failed in their duty to safeguard and protect the welfare of children.

The court held that the kettling of children in these circumstances was lawful and not excessive. They stated,

“While there was a considerable delay beyond the time at which a general dispersal was planned (4 pm), and that delay is regrettable, particularly when the young and vulnerable were affected, we conclude that it was justified by events occurring outside the cordon which required careful handling of those within the containment. The action taken, having regard to the need to safeguard children and to promote their welfare, was necessary, proportionate and lawful.”

Mengesha

This case was brought by a woman who had been told she must give her name and address, and submit to police filming, in order to leave a kettle. The divisional court held that the police acted unlawfully in doing so.

“It is clear, therefore, that containment is not permissible for some purpose other than to prevent a breach of the peace which is taking place or reasonably thought to be imminent. In particular, it is not permitted as a means of ensuring that the identification of those contained has been obtained by questioning and by filming.”