Police ‘containment’ of Palestinian solidarity protester was lawful, rules High Court
24 September 2013
Wright v Commissioner of Police for the Metropolis [2013] EWHC 2739 (QB) – Read Judgment
Image via Richard Millett’s Blog
The High Court has found that the containment of a protester in a designated protesting pen for seventy five minutes was not unlawful at common law, nor under the Human Rights Act 1998.
On 30th March 2011, a seminar marking sixty years of British-Israeli diplomatic relations took place in Chatham House in St James’ Square, London. The Israeli President, Mr Shimon Peres, was to be in attendance, and a group of protesters from the Palestinian Solidarity Campaign took the opportunity to demonstrate outside the seminar venue.
In advance of the event the police had ordered metal barriers so that a protest pen could be set up, but due to traffic congestion (caused by another, unrelated protest) the barriers were late in arriving. Consequently, when the protesters began to congregate at the venue, their protest was not contained with any specific designated area. In his judgment, Mr Justice Jay commented that the video evidence at this stage showed a “reasonably orderly and good natured demonstration”, and although the chants were “pointed and ad hominem”, they were perfectly within the scope of the protesters’ right to free speech and expression.
When the barriers did arrive, the pen was set up, and the police encouraged the protesters to enter the pen if they wanted to continue their protest. The actions of the police could be characterised as somewhat coercive (in some instances the threat of arrest was made), but it was essentially a voluntary arrangement, with most protesters entering the pen willingly, and those who wanted to leave the protest being permitted to do so.
At 09:27 am the Claimant protester, who had not yet entered the pen, called out to his fellow protesters that Shimon Peres would be likely to use an alternative side entrance to the Chatham house, and appeared to beckon them over to his location. Almost immediately after he called out, the police took a decision to make the containment of the protesters in the pen “absolute”, in that they were not permitted to leave, until 10:42 am.
Having been required to enter the pen himself after he called out to the other protestors, the Claimant sought damages at common law for false imprisonment and assault (he was pushed into the pen by the police, although the force used was minimal), and for breaches of his human rights under Articles 5 (the right to liberty), 10 (freedom of expression) and 11 (freedom of association).
At common law, the police have the power to contain or detain individuals in order to prevent a breach of the peace. Consequently, in determining whether there was false imprisonment in this case, Jay J explained that a three-part test had to be satisfied:
1. Whether the police had reasonably apprehended an imminent breach of the peace.
2. Whether or not the containment was necessary.
3. Whether or not it was proportionate.
He also noted that determination of the test one way or the other would simultaneously determine the claim under Article 5. This pocket of jurisprudence therefore provides another example of the way that the European Convention reflects the independent (and often anterior) development of domestic common law.
Having analysed the factual evidence, Jay J accepted that the police apprehended a breach of the peace, and considered that they had reasonable grounds to do so. This stemmed in particular from the actions of the Claimant in shouting over to his fellow protesters that Shimon Peres could be using an alternative entrance to Chatham. The judge held that it was reasonable to anticipate that either the Claimant himself or others could approach the President’s vehicle, which was expected imminently, giving rise to the likelihood of harm or property damage (i.e. a breach of the peace).
He also considered that the action was both necessary and proportionate, emphasising the fact that the police had opted for temporary containment rather than arrest, and that it was the only practical option to avoid the problems caused by different groups of protesters potentially taking action in different areas.
Consequently, there was no false imprisonment, and no breach of Article 5.
The remaining issues could be addressed summarily. There was no breach of Articles 10 and 11, as the Claimant was not prevented from protesting; he was simply required to do it in a designated area, in order to prevent a breach of the peace that was reasonably apprehended. Finally, there was no assault in this case, since the force used to usher the Claimant into the pen was minimal, and amounted to the deployment of reasonable force to prevent a breach of the peace.
In concluding, Jay J noted that if he had found that there had been false imprisonment or a breach of Article 5 in this case, he would have awarded damages in the sum of £500. This small sum reflects the fact that the containment lasted only seventy five minutes.
In light of that indication, the cynic might wonder if the action was worth the cost involved. However, this sort of case is often pursued by claimants not to seek compensation, but to vindicate points of principle (see Mengesha v Commissioner of Police of the Metropolis [2013] EWHC 1695 (Admin) for another example). This is to be welcomed in this context. The generally respected and stable position of police in our society depends on their powers being carefully circumscribed, and the exercise of those powers being rigorously scrutinised.
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The “right to demonstrate” has to be exercised consistently with the right of others to go about their lawful occasions unmolested. Not just the President of a friendly foreign country: also ordinary people who want to do ordinary things like walk down the street to visit a friend, go shopping, or whatever those unglamorous and individual occasions may be.
For example: long processions from Place A to Place B should be stopped every few minutes so that the road is never blocked for too long.
The worst failure in recent times to protect the rights of the law-abiding against the abuse of the right to demonstrate was the failure to prosecute the hooligans who disrupted the Prom when the IPO was played, and deprived those who had bought tickets for the proper purpose of listening to the music – and the wider radio audience – of their rights to enjoy it.
Their actions were anti-social and they must have bought their tickets on plastic. An ASBO forbidding them to hold a debit or credit card for five years would have fit the bill.
I have ‘liked’ the piece because it is informative – but the implications of the determination are very worrying and there is little comment on this aspect of the case
It’s the idea of a ‘pen’ which people are not allowed to leave that troubles me.
Obviously the police had to prevent protestors from disrupting the event or harming Shimon Peres, but would it not have been better to designate an area where they could *not* protest (say, the entire side-street where the President was to arrive) rather than kettle them into a small area and not let them leave even if, say, they needed the toilet or simply wanted to go home rather than continue to protest?
Interesting word “kettle”. A recent addition to the English language.
Not yet on Wiktionary or other on-line dictionaries. Anyone got an OED handy?
But Wiki does carry this as one near definition? “A collective term for a group of raptors riding a thermal, especially when migrating.”
“the Claimant was not prevented from protesting; he was simply required to do it in a designated area”
In future, if there is something happening in London that some wish to protest against, the police could designate an area on the Yorkshire Moors for the protest, to be on the safe side.
There’s many a true word spoken in jest.
Demonstrating and protesting is something you do because it makes you feel good; not because it benefits the world. The fact that you believe (and oh dear, you certainly do believe) that you are benefitting the world is part of what makes it feel good, but it’s an illusion, and one that most of those taking part will grow out of.
The world is generally indifferent to your protest unless you inconvenience it; then it resents it. If you stop people going where they want to go they are not going to think any better of the cause which leads you to incommode them. If the protesters are mainly students or other people who are not earning their living in the daily grind they will be particularly unpopular with anyone who is working for a living and gets home late.
Which is why demonstrations should indeed be so channelled that they don’t cause excessive inconvenience to the public, even if that means that those taking part don’t get quite such a warm glow inside. Not the Yorkshire Moors, the people who live there have private lives too.
Matthew,
thanks for this post. Am not sure that Wright *does* show police powers being circumscribed or subjecting them to rigorous scrutiny: after all, effectively, Jay J held that shouting out “Shimon Peres is coming this way” and beckoning, without any evidence of likely disruption or trouble constitutes grounds to be pushed into a containment. I think that leaves the law and regulation of protesting in a rather precarious and parlous state, more so as His Lordship’s reliance on a case like Nicol and Selvanayagam in not apt. The threat to the peace there was from the anglers targetted by the protesters.That is not the case here – this is not a situation of two groups confronting each other (unless the other group is Israeli security whom we should properly expect to be able to keep the peace) but one where a member of A’s group, it is said, will get stoked up by what A says and responds by breaching the peace. While that may, in normative terms be something we say the police should be empowered to deal with, doctrinally that proposition is not what Nicol, or Beatty or Wise v Dunning is authority for, as I read them. i develop some of this (and repeat it!) in my post on Wright on my Protest Matters blog here http://protestmatters.wordpress.com/2013/09/11/the-police-pen-is-mightier-than-the-sword/