A Guide to Kettling

Disclaimer: this article is for general information. It’s not intended to be used as legal advice. For information on how to get legal advice, please see our page here.

WHAT IS ‘KETTLING’?

‘Kettling’ is when the police contain protesters in one place for an extended period by surrounding them and not allowing them to leave.

Although kettling is not new – police contained people during the miners’ strike and the poll tax demonstrations in the 1980s and 1990s – its use by the police has become more frequent. Recent examples include a Black Lives Matter protest in June 2020 and a Kill the Bill protest in April 2021.

WHEN CAN POLICE KETTLE ME?

The police are legally allowed to kettle protesters to prevent or deal with a “breach of the peace” (“violence or threatened violence”).

“There is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance”

R v Howell [1982]

But the police can only lawfully kettle protesters if they have taken all other possible steps to prevent the breach or imminent breach of the peace, and they reasonably believe there is no other option.

WHAT OBLIGATIONS DO THE POLICE HAVE DURING A KETTLE?

During a kettle, the police must have a release plan that allows vulnerable or distressed people, or those accidentally caught up in the kettle, to leave. Our website has information for disabled people who get caught in a kettle here.

If it is practicable, the police must also make essential utilities like toilet facilities and drinking water available to those being kettled.

The police cannot kettle you for any longer than is reasonably necessary to prevent a breach of the peace, and they must keep the necessity of the kettle under review.

DO I HAVE TO ANSWER POLICE QUESTIONS DURING A KETTLE?

You have no legal obligation to answer police questions at protests, including during a kettle. The only exception is if you are engaging in “anti-social” behaviour. That is, behaviour that causes, or is likely to cause, “harassment, alarm or distress”.

If the police believe you are engaging in anti-social behaviour, they can require you to provide your name and address under Section 50 of the Police Reform Act 2002. This exception must apply to you specifically, though. The police cannot use it as a blanket power to obtain personal information from a group.

The courts have also recognised that it is unlawful – and a violation of your right to privacy under Article 8 of the European Convention on Human Rights (ECHR) – for the police to require protesters to provide their personal details or submit to being filmed as a condition of their release from a kettle. As recently as the Black Lives Matter protests in June 2020, however, the police unlawfully demanded that protesters provide their personal details as a condition of their release from a kettle.

CAN THE POLICE SEARCH ME DURING A KETTLE?

The police can only search you while you are in a kettle if:

• they reasonably suspect you are carrying a prohibited item (a weapon, stolen goods, an item that could be used to commit a crime, or drugs); or

• there is a ‘Section 60’ authorisation in place allowing the police to carry out suspicion-less stop and searches in that particular area at that time.

Read more on stop and search.

HOW LONG CAN A KETTLE LAST FOR?

The police can kettle protesters for as long as it’s necessary to prevent a breach of the peace – which may be several hours.

When releasing people from a kettle, the police may release everyone at the same time, or they may carry out a “controlled dispersal”, where they release people in pairs or small groups from certain exit points.

As noted above, the police cannot use the process of controlled dispersal as an opportunity to gather personal information from protesters, unless they are individually engaging in “anti-social behaviour”.

WHAT HAPPENS IF I AM ARRESTED IN A KETTLE?

The police can arrest you as soon as they release you from the kettle if they believe it’s necessary to prevent further breaches of the peace, or if they reasonably suspect you’ve committed a criminal offence.

Read more on your rights when arrested at a protest.

IS KETTLING A BREACH OF MY HUMAN RIGHTS?

Your right to liberty is set out in Article 5 of the ECHR and protected in the UK under the Human Rights Act 1998 (HRA) by:

• requiring public authorities (including the police) to act in a way that is compatible with your rights; and
• allowing you to bring a claim in UK courts if your rights are violated.

Your right to liberty is a ‘limited’ right, however. This means it may be lawfully interfered with when it is done in accordance with law and in certain specified circumstances.

The courts have found that kettles do not breach our human rights if they are carried out in accordance with the law and are a proportionate means of preventing a breach or imminent breach of the peace.

In the landmark UK case relating to kettling is Austin v. Commissioner of Police for the Metropolis [2009], the House of Lords (now the Supreme Court) said that kettling would be lawful if it was:

• resorted to in good faith;
• proportionate to the situation;
• for no longer than was reasonably necessary; and
• for a legitimate purpose (e.g. protecting people or property from injury or damage, or to prevent serious public disorder and violence).

Although this decision – that there had been no violation of Article 5 in the specific circumstances of the case – was re-affirmed by the European Court of Human Rights (ECtHR), the ECtHR stated more generally that:

“It must be underlined that measures of crowd control should not be used by the national authorities directly or indirectly to stifle or discourage protest, given the fundamental importance of freedom of expression and assembly in all democratic societies.”

HOW DO I COMPLAIN OR TAKE LEGAL ACTION WHEN I AM UNLAWFULLY KETTLED?

If you think you’ve been unlawfully kettled or are generally unhappy with the behaviour of the police, you can make a police complaint.

You may also be able to bring a legal claim against the police. If you want to do this, it’s strongly advisable to seek legal advice and representation, ideally from a lawyer with expertise in ‘actions against the police’. More information on how to find a lawyer is available here.

You can also find more information about how to use the Human Rights Act 1998 (and judicial review) to challenge the unlawful decisions/actions of the police here.

FURTHER INFORMATION

Additional guidance on kettling is available from Netpol and Hodge Jones & Allen. More information on your protest rights is available on our Advice & Information Hub, including the following pages:

• HOW TO ORGANISE A PROTEST & MAKE YOUR PROTEST MORE ACCESSIBLE

• WHAT IF I’M ARRESTED AT A PROTEST?

• PRACTICAL PROTEST TIPS

• PRACTICAL TIPS FOR DISABLED PROTESTERS

• PROTEST BUST CARDS (WITH TRANSLATIONS)

• HOW DOES THE POLICING ACT 2022 AFFECT MY PROTEST RIGHTS?

• THE PUBLIC ORDER ACT 2023

• MONITORING & REPORTING ON PROTESTS (JOURNALISTS & LEGAL OBSERVERS)