Wright v Commissioner of Police for the Metropolis  EWHC 2739 (11 September 2013)
The High Court of Justice found that the containment of protestors in a “pen” for 75 minutes was not unlawful under either the common law or the Human Rights Act 1998 (UK).
On 30 March 2011, Mr Joseph Wright participated in a protest outside Chatham House against the President of the State of Israel, Shimon Peres.
The police planned to confine protestors in a particular area by setting up a protest pen. However, delivery of the metal barriers was delayed due to traffic (and a separate protest in a different location).
Approximately 40 protestors, arriving around 8.30 am, generally congregated opposite the main entrance. After constructing the pen around 9.15 am, police officers advised that containment was voluntary and that protestors were free to leave the pen to go to work or college. Most protestors entered without any further persuasion. Some requests to enter were coupled with threats of arrest for breach of the peace.
Mr Wright was one of the few who did not enter the pen, instead he waited near a side entrance he thought Mr Peres might use. Shortly before Mr Peres arrived, Mr Wright appeared to call others to his location, and the police decided to make the containment absolute. Mr Wright was pushed in the direction of the pen and, together with the other protestors, was contained from 9.27 am until 10.42 am.
Mr Wright claimed damages for false imprisonment, assault and battery at common law. In addition, Mr Wright claimed damages under section 8 of the Human Rights Act 1998 (UK) for breach of his rights under articles 5 (“Right to liberty and security”), 10 (“Freedom of expression”) and 11 (“Freedom of assembly and association) of the European Convention on Human Rights.
At common law, the police have the power to contain or detain individuals to prevent a breach of the peace. As such, it fell to Justice Jay to decide whether the police’s actions satisfied the tripartite test noted in Mengesha v Commissioner of Police of the Metropolis  EWHC 1695; that is, whether police had “reasonable apprehension of an imminent breach of the peace; the necessity of the measure; and its proportionality”. As the parties accepted that the issues at common law and under Article 5 were the same, the court addressed them simultaneously
Although the police argued that their apprehension of a breach of the peace was exacerbated by protestors refusing to enter the pen, Justice Jay clarified that “the onus is on the police to justify containment and the protestor is quite entitled to say: ‘I am not causing a breach of the peace: let me stand on my rights’”.
In holding that the police did have a reasonable apprehension of a breach of the peace, Justice Jay found that “[T]he principal ground for the containment was a belief that one or more persons, whoever they might be, would seek to advance at speed in the direction of Mr Peres’ car”. Justice Jay referred to a number of factors that may have weighed on the police’s minds, but found that it was Mr Wright’s own actions in calling people over that ultimately created the reasonable apprehension. In the circumstances, containment was both necessary and proportionate.
The remaining Convention claims were addressed at paragraph 74, where Justice Jay noted that “[a]rticles 10 and 11 are qualified rights and yield in the face of sufficiently strong public interests”. As protestors were not forced to stop their protests or disband, Justice Jay was of the view that “[T]he interference with the relevant Convention rights was in any event close to minimal: the Claimant was still free to demonstrate and to associate, albeit not quite where he wished to.”
Had the issue been pushed, Justice Jay noted he would “have to place in the balance the equivalent Article 10 and 11 rights of those attending the seminar, including Mr Peres himself”.
The decision is available online at: http://www.bailii.org/ew/cases/EWHC/QB/2013/2739.html.
Darsha Kumar, Law Graduate, King & Wood Mallesons Human Rights Law Group
This is not the first case to review the police practice of containment during protests. In March 2012 the European Court of Human Rights held that the practice of ‘kettling’, wherein the Police contained thousands of protesters for over six hours during an anti-Capitalist protest, did not breach Article 5 of the ECHR. The court held that, in the circumstances, it was the least intrusive and most effective means to be applied (Austin & Ors v United Kingdom, 15 March 2012).
Indeed, the tension between security and public order on the one hand and the rights of liberty, free speech and freedom of association on the other, has been the subject of numerous court cases over the past few years. Police practices of kettling, dictating style and place of protest, removing or destroying camp sites have been examined by regional and domestic judiciaries. The legitimacy of police tactics, including containment, is necessarily dependent on the facts of each individual case. Independent judicial oversight therefore plays a critical role in ensuring such tactics are deployed only when necessary and proportionate to any threat posed.
In many situations peaceful protest is still theoretically allowed. It is, however, controlled, with considerations of security dictating where, when and how activists may protest. In such cases, as noted by the Special Rapporteur on the Rights of Peaceful Association and Assembly the focus is often on ensuring public order, rather than a human rights based approach that would facilitate peaceful assemblies. While not strictly banning protest, the threat of such tactics, can, according to the Rapporteur, have a powerful chilling effect on the exercise of freedom of peaceful assembly, effectively stifling freedom of expression and legitimate forms of political participation.