One area that certainly concerns the way individuals are treated as primarily part of a group is that of the demonstration. Individuals on a march, or at a protest, are generally thought of as marchers, or protestors, rather than individuals: at least, they are individuals in the category, or class, of marcher or protestor. No serious attention is paid to the divergent opinions of persons on the same march, or protest, or to considering why, precisely, they came along in the first place. An anti-war march is as likely to consist of pacifists or religiously motivated persons than by members of the radical political left, anarchists or just regular trouble-makers. This lack of specificity is a real concern for anyone attending a march, or demonstration, since they are more likely to be seen as part of the group than as an individual, per se. This has been dealt with extensively by Kistner in relation to South African criminal law in relation to the demonstrations at the Lonmin Platinum mine in Marikana where individual agency was seemingly waived (Kistner 2015). My worry is that the problem of crowds is simply this; that common purpose may be attributed at any moment in the life of a crowd. Our innate capacity to undertake collective action may be fused, by the public authorities, with a mistaken, and over-simplified, version of human intentionality, in terms of what the crowd, qua crowd. The actions of the crowd are deemed unlawful, along with all its constituent members. In this scenario, it will be an uphill battle to distinguish the individual crowd member from the crowd, qua crowd, and problematic in terms of practical policing too (Kistner 2015, 33). Moreover, other than to maintain their own good behaviour what can they do, in the eyes of the law, to differentiate themselves from any violent, or unruly, elements in the crowd, and in any case how might they seek to effect that? There is, at the very least, the suspicion that law-abiding and peaceful persons in a crowd may be taken as fellow travellers in any breach of the peace. These are very serious civil liberty concerns at any time but certainly now with people angry at public sector wage freezes, the state of the National Health Service, student fees and a multitude of other causes when people may very well wish to exercise their lawful right to protest. The right to protest is an important democratic element in our democracy. It is, moreover, a crucial aspect of our right to free speech and well won in earlier days. The prioritising of the group, over and against, the individual may well be understandable, even unavoidable. This is not the point in question. The issue is the right of all persons to be thought of as separate and differentiated persons and to be thought of as such. Morrison makes a very important point about the linkage of freedom of speech and rights of assembly (i.e. demonstrations, marches, meetings and so forth) in his seminal article on assembly in the first half of the twentieth century in America: “The period from 1918 to1927 witnessed the widespread use of membership crime, out of which substantive First Amendment rights emerged. While robust speech right would ultimately result, assembly was most often an issue” (Morrison 2015, 754). In the American example, following the First World War, the growing calls for women’s suffrage, equality between the races and so forth were attacked primarily through the breaking up of assemblies where people came together to exchange views, support one another and advance strategies for political and social change; similar public order strategies have been employed in different places and at different times: all I am doing here is noting the role of assembly in the political discourse of a nation, and its importance at effecting change. Morrison shows how it is often easier for the state to attack an assembly of persons in a public place than to deal with dissent in published form.

In recent years, the UK government has modified its focus around policing in terms of its attitude towards the whole area of public order, in general, and the control of crowds, especially. This has not so been so much in terms of sports events or cultural and religious events but in terms of public protests, notably in London. This concern, whilst always there, has been heightened since the protests in the Middle East at the time of the Arab Spring and the emergence of the so-called Occupy Movement and it has received a lot of academic as well as media attention. The individual protester is not the concern only the crowd, qua crowd. The larger group seems to usurp the life of the everyday man and woman. The economic crisis that hit the world in 2008 seemingly ushered in a new era of protest in its wake and in the UK the student protest of 2010 was a major worry for the public authorities, as was the sight of large numbers of chaotic rioters in the summer of 2011. The state became very concerned about the crowd as a focus for popular dissent and from 2008 there were numerous voices raised in Parliament, in the police and in local government for a new look at the UK’s legal framework for addressing disordered crowds. It also has to be noted that some of these crowd issues were linked to broader social movements, like the Occupy Movement, which itself is something of a challenge to the hitherto usual way of airing political grievances, Parliament. These movements are largely extra-parliamentary and represent a very real challenge to the usual notion of governmentality and how to change opinion. The social movements of the early twenty-first century appeared to be novel in many ways, though the tradition of public demonstration is age-old.

It was felt that the law must have a role in combating what was widely considered an emergent, and threatening, form of political organisation against the state, protesting crowds. Of course, none of this is new and elites have always felt threatened by crowds right back to classical times. The Marxist historian, George Rude, long ago highlighted the terror felt by elites from a bottom-up politics driven by ordinary people and which bypasses the existing political structures of change. Though Rude was taken with popular uprisings in the 1730–1848 period, notably in England and France, the issue he focuses upon is a perennial one (Rude 1964). The issue we deal with is that in concentrating upon the agency of the group, the individual agency of individuals is minimised if not neglected altogether; and this, of course, has real consequences in terms of the criminal law and individual human rights. What is often portrayed as a public order issue is, at root, an important element in our civic life; and arguably with the growth of social movements a growing one. In accounting for the life of the crowd we have to: “… (understand) … the complex causation of moments of disorder … to see the actions of the police and the protestors existing in a material, social and cultural context. The crowd responds to police force on the basis of perceptions of legitimacy and victimisation, while the occupational culture of the police ‘others’ the protestors” (rua Wall 2016, 403).

Kettling Crowds

One may think that it is only radical environmental campaigners, or those involved in political protest, who are negatively affected by police powers in public places in term of the control of crowds but this would be very much mistaken. Modern police crowd control, especially in relation to the tactic of kettling, has been the subject of a lot judicial oversight in the higher courts. A good example of this is the case of Austin and another v Metropolitan Police Commissioner.Footnote 1 In this case the House of Lords looked at the way kettling was employed by the Metropolitan Police, in and around the Oxford Circus area of London, on May Day 2001. The Metropolitan Police saw the tactic in terms of crowd control and argued that the crowds in the area were a threat to public order and had to be contained. The crowds were not uniformly hostile and the police themselves accepted that the overwhelming majority of protesters were calm and peaceful. One claimant, Ms Austen, who was one of the protesters was making speeches using a megaphone and she was then deemed to be hostile by the police, who had observed her. The other claimant, claimant S, took no part in the demonstration whatsoever but became, on the afternoon of 1 May 2001, embroiled in the crowd during her regular business, and unavoidably so, given the geographical location of Oxford Circus in terms of it being a thoroughfare and public transport hub; and it was the location of claimant S’s site of work. At 2.20pm both Austin and claimant S, along with many others, were prevented by the police from departing from the Oxford Circus area without the express permission of officers on duty. During this period of enforced police detention, both Austin and claimant S were extensively filmed and recorded by a specialist Metropolitan Police surveillance unit. The period of detention, in the kettle, lasted almost eight hours during which time no toilet or sanitary facilities were forthcoming and no water or fluids were provided by the public authorities, including the police. Both Austin and claimant S subsequently sued the Metropolitan Police for both false imprisonment under the Common Law and under Article 5(1) of the European Convention on Human Rights (ECHR) in relation to their rights to liberty and security. When the case came to trial, the judge sided with the police in holding that the demonstration represented a potentially very dangerous situation and that, to preserve public order and prevent any damage occurring to commercial property, the Metropolitan Police were within their rights to use the kettle to contain any potential trouble. The judge also reasoned, in relation to claimant S, that the police were justified in holding the entire group of persons within the kettle since the police maintained that they, collectively, could be thought of as about to commit a breach of the peace in the circumstances that presented on that day. There was an appeal to the Civil Division of the Court of Appeal which upheld all the decisions of the lower court save its holding that all the persons within the kettle could be reasonably understood as being about to commit a breach of the peace. However, in stating that the court determined that in difficult circumstances the police had done what they could necessarily do and so had not themselves breached the Common Law due to the exceptional circumstances pertaining to May Day 2001. Following the unsuccessful ruling from the Court of Appeal, Austin took her claim under Article 5(1) of the European Convention on Human Rights to the House of Lords where it was dismissed on the grounds that Article 5(1) had to be understood in terms of its relationship to Article 2 (the right to life), since the public authorities have a duty to protect the general public from riotous behaviour. Therefore, in determining the rightfulness, or otherwise, of police crowd control measures a balance must be struck between the individual rights of protesters, and those like claimant S who inadvertently get caught up in events, and the interests of public order and the safety of the wider community. Moreover, any measures the police undertake need to be proportionate to the real risks of a crowd becoming out of control. In dismissing Austin’s claim the House of Lords maintained that, in the circumstances pertaining to the events on May Day 2001, she had not been subject to any arbitrary deprivation of liberty but that she had been contained as part of a wider programme of measures directed at the maintenance of public order and safety.

What is the point we take away from this? For our purposes, the issue is surely that such examples demonstrate the problems implicit in being treated as an individual in what is a dynamic social situation. The issue is where the boundary lies between a duty to respect individual persons and to admit the reality of collective action. Moreover, it underscores the problems that the public authorities have in determining this, especially in fast-moving situations that do not easily lend themselves to close calls of an analytical sort. The duty to treat individuals as separate persons and to, at other times, treat them as a part of a collective and to understand how an individual may be understood as occupying both designations (individual and group member) is a very complex matter, as we saw in the first two chapters of this book. These are not matters that can ever be so simplified as to make them matter-of-fact tools of the public authorities. They may be set out clearly in analytical writing but it is difficult to sustain the notion this can also be the case in matters of policing, notably where disorder is a feature.

If we examine the case of Austin and another v Metropolitan Police Commissioner we note the real difficulty a judge often has in determining individual culpability in a crowd situation; and how this often leads to over-simplifying matters and to think of the peaceful protestors as acquiescing in the behaviour of the disorderly protestors. Lord Hope sets out one such issue, that of agreeing who is culpable of disorderly conduct, in the context of a kettle: “While about 60% remained calm about 40% were actively hostile, pushing and throwing missiles. Those who were not pushing or throwing missiles were not dissociating themselves from the minority who were” (Austin 2009, 6). Lord Hope is here, I argue, blurring the lines between peaceful protestors and disorderly ones. He seems to hold that the peaceful protestors in the kettle are, in some way, culpable since they fail actively to dissociate themselves from the violent protestors, beyond their own non-violence. One might even hold, on Lord Hope’s rationale, that there seems to be common cause between the peaceful protestors and disorderly ones. Much the same was stated in the HMIC Report Adapting to Protest: nurturing a British model of Policing: “… crowds are understood as unpredictable, volatile and dangerous, it becomes almost self-evident that they need to be controlled and that this control must be exerted primarily through the use of force. The theoretical position results in police tending to see the general heterogeneous composition of crowds in terms of a simple dichotomy: an irrational majority and a violent minority who can easily assert influence over the crowd” (HMIC 2009, 85). There seems to be a tendency to juxtapose violent protestors with peaceful ones yet to also be rather wary of the innocence of the peaceful ones, who in any case, may succumb to the contagion of the irrational life of the crowd. The psychological reasoning at play here seems rather arcane and at odds with what we now know of crowds. Extremely worrying are the words of Lord Neuberger in the case of Austin and another v Metropolitan Police Commissioner in which he reasons that when somebody attends a protest, where some form of social unrest may arise, they could be said to have foreseen the possibility of their being confined, in a kettle, and agreed to it “…if imputed consent is an appropriate basis for justifying confinement for Article 5 purposes then it seems to me that the confinement in the present case could be justified on the basis that anyone on the streets, particularly on a demonstration with a well-known risk of serious violence, must be taken to be consenting to the possibility of being confined by the police, if it is a reasonable and proportionate way of preventing serious public disorder and violence” (Austin 2009, 9). This is a rather disturbing line of reasoning coming from such a distinguished judge. Lord Neuberger implicates “anyone on the streets” as being able to foresee, and agree, to their own confinement prior to any public order matters even arising: the possibility is enough. The same goes for those in the kettle at the time of any public disorder. This is always to make the persons contained within the kettle the architect of their own confinement, which seems wrong on many levels. This reasoning has the effect, moreover, of discouraging other citizens from taking part in a protest if they could, in any way, foresee some form of disorder breaking out. This notion at work in Lord Neuberger’s opinion is reductive at best and generally wholly inadequate in accounting for the individual actions of persons in a crowd of any sort, the more so in a protest. In discouraging people from taking part in protest it might well also be termed anti-democratic. It entirely misses the sheer complexity of dynamic social situations. The police are never, in the account proffered by Lord Neuberger, in any way conceivably causal in any social unrest. Police tactics during situations of operational crowd control seem devoid of any sociological context and without any analytical framework by which to judge the actions of individuals or of groups being policed (Knight et al. 2013).

Kettling Children

One of the most controversial cases of kettling that involved the UK courts was in 2011 when the courts revisited the whole issue of kettling in relation to a case concerning a sizeable demonstration against student tuition fees in central London, where the police had to use their powers, as it turned out expectantly to involve children. The Metropolitan Police are well-versed in dealing with crowds but, in this instance, they had failed to anticipate the participation of a considerable number of children. The details are supplied in R (on the application of Castle and others) v Metropolitan Police Commissioner.Footnote 2 The Metropolitan Police set about containing the agitated crowd that presented in the Whitehall area of London a little after 1pm and did endeavour to identify young and vulnerable persons as part of that process; all of which is standard procedure. However, the plaintiffs in the case were a fourteen-year-old girl and two sixteen-year-old boys and they were not let out of the kettle until 7pm and 8.30pm, respectively. The plaintiffs did not sue the Metropolitan Police for false imprisonment, as may have been expected, but instead they invoked Public Law and made an application for a judicial review of the Metropolitan Police’s decision to contain them. In doing this, in the first instance, they utilised section 11 of the Children’s Act 2004 which imposes a statutory duty upon various public bodies, including the police, and states that they “…must make arrangements for ensuring that their functions are discharged having regard to the need to safeguard and promote the welfare of children.” They also drew attention to the very long period of time that the containment was established by the police. The Court’s opinion was that section 11 of the Children’s Act 2004 did, indeed, require the Metropolitan Police to ensure that their functions are undertaken so as to promote the welfare of young people and that it is also right to hold that the statutory duty was, in turn, determined by both the function and circumstance of any operation. Moreover, that individual police officers ought not be deterred from exercising their duties simply because of the presence of a child. The Court also held that, as a general principle, any police impediment with the usual norms around the freedom of movement of persons must be specifically justified. Kettling, as a form of containment, can only ever be justified where there are no other alternative measures which could prevent citizens (i.e. third parties not involved in a demonstration) from being drawn into a breach of the peace. Importantly, the Court held that if kettling (containment) is deemed to be the only course of action open to the police then it is lawfully justified if it is deemed operationally necessary; and that it should not be considered excessive even where it is instituted in circumstances where the public authorities had not anticipated the events which brought about institution of the kettling. In the Castle and others Case the Court noted that the Metropolitan Police had fully complied with their operational codes of conduct and met their duties to innocent third parties in minimising the impact of the kettling and that they had not unlawfully extended the period of the containment. Kettling was deemed to be no more than a very useful operational tool to be instituted in rare public order instances.

Innocent Victims in Kettles

The Castle and others case was significant for what it ruled in relation to third parties in a kettle. It stated that the police have a statutory duty to seek alternatives to kettling as ways to minimise the impact upon third parties. Therefore, the police must always have a plan for alternatives to kettling ; at least it has to be formally considered. This exacts a duty on the courts to determine, with a high degree of accuracy, the plans the police have in place around the matter of crowd control as well as the operational institution of those plans; especially where third parties are injured and where civil or criminal claims are made against the police as the statutory public authority. The most notable case in this regard concerns the tragic death of Ian Tomlinson. Tomlinson was an innocent 47-year-old newspaper seller who, during his regular business, was killed as a result of the actions of PC Simon Harwood, a Metropolitan Police officer, during the protests and civil disorder that arose out of the April 2002 London G20 Summit. PC Harwood forcibly pushed Tomlinson and struck him with his baton and he fell to the ground. Tomlinson was not himself a protestor but simply a man trying to negotiate his way home through the series of cordons the Metropolitan Police instituted. After the assault by PC Harwood he collapsed in the street and died just moments later. The death of Ian Tomlinson was later ruled to be an unlawful killing by the Coroner’s Inquest held in 2011. Although the police officer, Simon Harwood, was subsequently acquitted of the charge of manslaughter he was nonetheless dismissed from the Metropolitan Police on a charge of gross misconduct in public office (Gearey et al. 2013).

Another incident is worth noting, for anyone thinking of pursuing civil proceedings against the police where personal injury is a concern, is that of the ruling by the House of Lords in the case of Farrell v Secretary of State for Defence. Footnote 3 In this case a claim for damages was made against the Ministry of Defence by the widow of a man shot to death by the British Army in Northern Ireland. The British Army stated that they had issued two warnings in the form of a call to “Halt” both of which were ignored by Farrell. The dead man, one must point out, had been trying to rob another person who had been attempting to deposit money in a bank’s night safe. In the statement Mrs Farrell (the widow) claimed that the soldiers involved in the shooting had been negligent, and used excessive force, in firing their weapons. Mrs Farrell did not claim, however, that there was a question of negligence to put to the senior army officers who had deployed their soldiers correctly in furtherance of anti-terrorist measures, which included the planning of the protection of the bank from robbery and terrorist attack. The case came up at the Northern Ireland High Court before Justice LJ and a serving jury. It held that, in the circumstances pertaining in Northern Ireland, at the time, the soldiers concerned were reasonable to assume that Mr Farrell was indeed a terrorist. Mrs Farrell then took the case to the Court of Appeal in Northern Ireland. The Court of Appeal in Northern Ireland instructed that a new trial be held and that it should also consider the matter of negligence regarding the senior army officers too, thereby making the case much broader in scope. The Ministry of Defence were greatly concerned at this and took an appeal to the House of Lords, which was successful. The decision of the House of Lords was that Gibson LJ was right in his original decision to contain the scope of the case to the soldiers and not widen it to include their superiors in the British Army; and noted that the case should only relate to the persons Mrs Farrell herself had highlighted in her original statement of claim. Moreover, Lord Edmund Davies made the point that, although the courts had the power to amend the terms of a litigant’s written statement of plea, it was easy to envisage circumstances where doing this would likely cause an injustice to other parties. Lord Edmund Davies further noted that: “To shrug off a criticism as a ‘mere pleading point’ is therefore bad law and bad practice. For the primary purpose of pleadings remains, and it can prove of vital importance. That purpose is to define the issues and thereby to inform the parties in advance of the case they have to meet and to enable them to deal with it.” It is worth noting here that the Civil Procedure Rules of 1998, and the subsequent amendments to them following Rupert Jackson’s Report, similarly underscored the idea that courts must always prioritise how the parties themselves set out the case and the surrounding matters associated with it. In the Farrell v Secretary of State for Defence case this is important, for our purposes, since by citing the individual soldiers the case is weighted in terms of considering the actions of two persons. This would not have been the case if the actions of senior British Army officers, the corporate body, had been included. Therefore, we can say that Farrell v Secretary of State for Defence is a case that focused upon the culpability of individuals not groups of individuals. It is also easier to understand how the deliberations and actions of the soldiers in question are a much simpler matter to decide than that of a broader, more amorphous, group; in this case, senior British Army officers not present at the event in question.

The So-called Cordon Sanitaire in Parliament Square

Along with the phenomenon of kettling another issue has arisen in British public life: the powers of the police to tightly control Parliament Square, which at once is both a major tourist spot and a road juncture. It is, moreover, directly outside the Houses of Parliament. This has become an even more pressing matter following the terrorist attack on Westminster Bridge and subsequent stabbing to death of a police officer on guard duty at the entrance to Parliament in 2017. The Metropolitan Police have broad powers over the conduct of demonstrations and, to that end, generally deny unauthorised demonstrations in Parliament Square, and the surrounding area, even when such demonstrations may be peaceful. This also includes demonstrations by individuals, who act alone, and are not linked to any larger group. The Metropolitan Police were granted these very wide powers by the Serious Organised Crime and Police Act 2005, specifically sections 132–138. These powers came about due to the actions of one man, Brian Haw . His extended, arguably infamous, lone campaign of protest, started in June 2001, against the British government’s military actions in Iraq consisted of him living on the pavement in Parliament Square across from the Houses of Parliament. Initially, in 2002, the local council, Westminster City Council, took action against Haw in the High Court to evict him from Parliament Square.Footnote 4 This action against Haw failed and the judge in the case, Gray J, maintained that Haw , far from acting unlawfully was merely expressing his freedom of expression under Article 10 ECHR and as set out in Nagey v Weston 1965.Footnote 5 Indeed, that Haw’s action was no worse than other lawful activity, such as selling food from a stationary vehicle, or collecting money for charity in the street, or distributing leaflets, or a whole host of other activities. As a direct result of Brian Haw’s ongoing demonstration over the British government’s military involvement in Iraq, section 138(2) of the 2005 Act, which allows for the prohibition of demonstrations by the Secretary of State within a cordon sanitaire (i.e. an area designated of up to 1 kilometre from, and including, Parliament Square) was pursued by the authorities. However, this broad cordon sanitaire proved rather more difficult to enact than had been originally thought and the then Home Secretary, Charles Clarke, had to determine the cordon sanitaire to mean all of Parliament Square, including the pavements, but not the buildings that adjoined the pavements. Since the area of the cordon sanitaire was so large it would have also included the pavements up as far as Trafalgar Square had these not been specifically referred to in, and excluded from, the statutory instrument that enacted the cordon sanitaire because of the intervention of Baroness Scotland of Asthal.Footnote 6 The 2005 Act, specifically section 132(1), saw the creation of a completely new method of breaching the cordon sanitaire by way of organising, or in any way being party to, a demonstration anywhere in the designated area without the express authorisation of the public authorities. Moreover, it also created a duty on the Metropolitan Police Commissioner to authorise such demonstrations as were allowed under section 134(2) of the 2005 Act. Any notices, under the 2005 Act, must be issued by the police six days before the commencement of any demonstration, where practicable, and never less than 24 hours prior to the start of any demonstration. In addition to this, the Metropolitan Police Commissioner was placed under a duty not only to authorise demonstrations but to specify special conditions where this is done to prevent disorder from breaking out within the cordon sanitaire. Of course, these risks did not really relate to Brian Haw. Nonetheless, Caroline Flint, the then Parliamentary Under-Secretary of State for the Home Department, related to Parliament that police officers were instructed to “check behind paraphernalia for devices left, not by people who are protesting, but by people who might use the protest for their own motives to cause a security problem.”Footnote 7

Brian Haw the Pre-existing Demonstrator in the Parliament Square Cordon Sanitaire

The 2005 Act’s sections regarding the notice needed for the granting of authorisations for demonstrations were enacted in July 2005 by an earlier commencement order made in June of the same year.Footnote 8 The final sections of the Act (i.e. sections 132–137) were enacted in August 2005. The wording of the commencement order stated “demonstrations starting” and in section 132(1) and section 133(2) this clearly refers to demonstrations “starting or continuing” on or after 1 August 2005. Of course, Brian Haw’s demonstration had begun much earlier, in 2001. Blake has set out this saga in some considerable detail (Blake 2008). Haw successfully argued that his demonstration had been in uninterrupted operation for four years so his case fell outside of the act (Blake 2008). In the case of Westminster City Council v Haw the judge read from Brian Haw’s original statement in which he stated that he protests on a full 24-hour basis. The judge in the case noted how Haw “sleeps and eats” on the pavement itself. The legal case that Haw mounted was all about his demonstration preceding the Act and his right therefore to continue with it after July 2005. A literal understanding of the law would seem to side with Haw but a view might be discerned in terms of a broader legislative purpose to stripping Haw of his existing rights of protest and beyond that his home, since he lived 24 hours a day on the Parliament Square pavement, and to deprive him, furthermore, of any compensation following eviction. Instead of awaiting prosecution Haw, and his legal team, made a petition to the Divisional Court of the High Court in July 2005 for a ruling against both the Home Secretary and the Metropolitan Police Commissioner, and granting that the contents of the 2005 Act did not, and could not, apply to him given his protect began many years earlier. Haw’s application was successful, though with a dissention from Simon J.Footnote 9 It is important to note here that the way the Home Secretary had interpreted the Act would have had the effect of turning Haw’s long-standing, and lawful, demonstration, which needed no authorisation, into a criminal action. How could Haw be guilty of engaging in an activity without permission where there was no requirement to gain any permission? A similar reasoning held in the decision of the House of Lords in the case of Waddington v Mia. In that case, the defendant was unable to be found guilty of doing something which required no permission at the time of his doing it; in that case, entering the UK without leave. There was an appeal to the Civil Division of the Court of Appeal. The Court of Appeal was swayed by the more purposive treatment of the 2005 Act, preferred by the government, in determining the legislation that related to the cordon sanitaire surrounding Parliament Square. In its judgment, the Court of Appeal maintained that the 2005 Act should be understood as expressing the intention of the government that it should apply to demonstrations that started before the commencement of its powers “as surely as [to] those starting after.”Footnote 10 Brian Haw was denied his appeal to the House of Lords against this ruling.Footnote 11 Blake has argued how Haw was, in June 2005, the sole individual to have established rights to eat and sleep and to reside on the pavement in Parliament Square (Blake 2008, 183). Moreover, that he had secured those rights under Article 10 ECHR during his High Court battle with Westminster City Council.Footnote 12 Haw was unique in being placed outside of those persons in a category, or class, by sections 132–138 of the Serious Organised Crime and Police Act 2005 since the category, or class, referred to future persons to be covered in terms of their applying to the police for the correct authorisation prior to their demonstration beginning. The important technical point to note here is this: Parliament certainly could deprive Haw of his existing rights. It is sovereign and can make such laws as it sees fit, under Law. The problem for Parliament was simply that if it sought to take away Haw’s rights, in other words, if that was its express wish, for whatever reason, then it would need to bring the entire procedure forward in what is termed a hybrid bill. The use of a hybrid bill would then allow Haw to make his case to Parliament through the committee system that is established in both the Commons and the Lords, since he was being considered “… in a manner different from the private or local interests of other persons or bodies in the same category, so as to, attract the provisions of the standing orders applicable to private business” (Mackay 2004, 566). This is without touching upon Article 8 ECHR (respect for private and family life) and Article 1 of the First Protocol to the ECHR (peaceful enjoyment of possessions). It is clear that the Common Law and Article 7 ECHR specifically outlaw retroactive criminal legislation. The Common Law, moreover, works with a presumption of title, in other words that an individual’s property may not be usurped or damaged by the Crown, including during war time, without compensation, unless it is expressly excluded by an Act of Parliament.Footnote 13 However, it may seem odd that a person can claim, nonetheless, that their home is on the pavement, as was the opinion of Gray J in Westminster City Council v Haw, and similarly in respect of the facts in R (on the application of Haw) v Home Secretary. The more so since Article 10 ECHR prevented Haw from being considered as a person who was obstructing “without lawful authority or excuse”, contrary to section 137 of the Highways Act 1980, or even his being considered as a rough sleeper contrary to section 4 of the Vagrancy Act 1824. It was held that Haw’s political placards, which he used to maintain his protest even when briefly away from the pavement, were not to be considered advertisements and so did not breach the Control of Advertisement Regulations or section 224 of the Town and Country Planning Act 1990. The authorities in Parliament and in Westminster City Council, after the case of Westminster City Council v Haw and the decision of the Court of Appeal in R (on the application of Haw) v Home Secretary, decided that there was only one way of getting rid of Haw from Parliament Square and that was to offer to pay him proper compensation. The drafters of the 2005 Act had neither foreseen the example of an existing protest nor thought of protests other than in group terms. Brian Haw was the exception to both these, in what proved for the public purse, very costly oversights.

In legislation subsequent to the Brian Haw in Parliament Square case controls over demonstration were further added to in Part 5 of the Police and Social Responsibility Act 2011. This enabled the police and other authorised officers, usually local authority staff, the right to outlaw both temporary structures and the use of amplification in Parliament Square. In the case of R (on the application of Gallestequi) v Westminster City Council the High Court maintained that despite a protestor having permission to protest from the public authorities, in this case the Metropolitan Police Commissioner under section 134 of the Serious Organised Crime and Police Act 2005, this could nonetheless be compensated for by completely different objectives related to the 2011 Act as could a protestor’s rights under the ECHR , specifically Articles 6, 10 and 11.Footnote 14 The upshot of the 2011 Act is to maintain that the restrictions in that Act are proportionate and should be weighed against other criteria. What this means, in effect, is that local authorities can exercise their powers under the 2011 Act because they are the correct, and most appropriate, authority to exercise those powers in their area. Indeed, one may argue, it is specifically in such sorts of cases that we see the role of local authorities most clearly. Local authorities have very widespread powers under section 222 of the Local Government Act 1972 to seek injunctions to end any type of public nuisance or breach of the Common Law in their designated area. We note how during the Occupy Movement’s anti-capitalism protests in 2012 that when protestors occupied the pavements that were legally an aspect of the public highway around St. Paul’s Cathedral the local authority, in that case the City of London Corporation, pursued an action for possession of those pavements and duly sought injunctions to remove the tents that had been erected on nearby land. In the court action that followed, the Civil Division of the Court of Appeal upheld the rights of the City of London Corporation and considered that it was reasonable, when considering the rights of protest and lawful assembly, that due weight be given to matters of time and space, especially the duration of the protest in question and its physical extent. The location, and extent, that protestors choose has to be weighed against the bona fide legal rights of members of the public to go about their business and the rights of landowners. In the case of the Occupy Movement protests, the City of London Corporation was successful in their action because it could be readily demonstrated to the court that the Occupy Movement protest presented a clear case of significant interference with the lawful rights of citizens to go about their business and it could be shown that it presented a contravention of the Highways Act 1980. As the protestors were sleeping out and had no organised sanitation or running water, given its duration, it also breached a great deal of public health legislation, both UK and EU.Footnote 15

The Surveillance of Campaigners and the Powers of the Police

The state wherever it is situated will need, from time to time, to undertake surveillance upon certain people and certain groups. In recent years there appears to have been a broadening of this necessary function of state security when applied to terrorist, and similarly serious, cases, and to take in more contentious persons and groups; those who normally would not be thought of as threat to society, such as environmental campaigners and those involved in local political protests around such issues as the closing of a hospital or the diminution of services to the elderly or to support childcare. The argument has often been of the slippery slope sort wherein an escalation is posited, a false logic invoked. Environmental activists have at times sought to buy shares, sometimes just a single share, in a public listed company displaying behavior that they disapprove of to gain access to shareholder meetings so they can readily gain access to meetings and can disrupt proceedings. This has happened at several high-profile annual general meetings (AGMs). Although such shareholding protestors do cause disruption and can be thrown out by security staff this tactic raises a great many questions about the status of the shareholding protestors. Are they shareholders first or are they better understood as protestors? Do the police have the right to question, inconvenience and detain protestors who are also shareholders? Moreover, presumably their shareholder status is prior to any disruption undertaken. How can the police intervene against minority shareholders in their dispute against majority shareholders, in a private meeting? One notes the difficulties this situation throws up and its possible misuse by majority shareholders against legitimate dissenters, leaving aside any matters of outside political protest. Moreover, what difference does it make if a given shareholder is motivated by political as opposed to commercial, ethical or financial reasons; and how would one set about disentangling those reasons, one from the other, if it were a consideration? The case of R (on the application of Wood) v Metropolitan Police Commissioner is instructive here and it is noteworthy that Wood was a long-standing campaigner against the international arms trade.Footnote 16 Wood, though active in various campaigns against the arms trade, had no criminal convictions and had never previously been arrested by the police. Wood was at an AGM as a shareholder, having previously bought one share in the company, when he was photographed by the police who were involved in surveillance and evidence-gathering activity against protestors. When the meeting was concluded Wood, along with several of his fellow campaigners, made his way to the underground station and there the whole group were formally asked to identify themselves to the police. They all refused to do this. The police officers involved in the operation retained the photographs and later Wood was identified. Following this occurrence, he sought judicial review, under Article 8 ECHR , respect for private and family life, in order that the police officers concerned had their conduct examined in terms of their taking photographs in the first place and then retaining them. Wood’s application for a judicial review was subsequently rejected by the High Court and he appealed to the Civil Division of the Court of Appeal. The Court of Appeal noted that rights under Article 8 ECHR related to the notion of a reasonable expectation of privacy: in other words, was Wood right to expect his right to privacy in the setting in question? In the Wood case, there seemed to be no reasonable explanation as to why the police took, and retained, photographs of an ordinary man, with no prior criminal history, going about his normal business in the city he lives. The police, at the time, gave no explanation of their conduct but later argued that photographing Wood was part of a wider pre-identification procedure of persons they believed might go on to disrupt a major upcoming arms expo. In the Wood case, the Court of Appeal reasoned that Wood clearly had had his Article 8 rights infringed. As to the question of whether, or not, this infringement was warranted for other reasons by the police, the court reasoned that taking photographs of persons, for the sole purpose of preventing public disorder, or to protect and preserve the rights of other citizens, was a legitimate police activity under Article 8(2) ECHR . The Court of Appeal had then to decide whether, in the Wood case, an individual’s rights, under Article 8 ECHR , was proportionate to the preventive determination on risk, cited in Article 8(2) ECHR . In a majority decision, it ruled that there is clearly a distinction to be drawn between serious crime, or the prevention of terrorist activity, and the sort of everyday minor disruption that is part and parcel of living in a democratic state. It concluded that the taking and retaining of photographs, even if only for a few days, had in this case only been done because the police had an idea, a hunch, that Wood may later go on to disrupt a major upcoming arms expo, several months hence. This rationale was rejected by the Court of Appeal. The police, after all, had not undertaken this evidence gathering and photographic record of persons for any reason associated with the shareholder AGM. It all seemed rather speculative on the police’s part and so the Court of Appeal held that the police activity in question was unlawful, being both disproportionate and a straightforward case of infringing Wood’s rights to privacy under Article 8 ECHR .

Thinking About Crowds

This is not as straightforward as it appears. Is there a distinction to be had between a group of people and a crowd? At what point does a crowd become purposive or act mob-like? These are questions that the Marxist historian Eric Hobsbawm dealt with in his seminal Primitive Rebels (Hobsbawm 1964; rua Wall 2016). Hobsbawm, of course, was looking at the matter of public disorder to discern purposive political action not criminality, as such. In Marxist terms, Hobsbawm’s task was to see whether, and in what economic circumstances, a crowd represents a class-in-itself or a class-for-itself (Andrew 1983). In the nineteenth century, especially, crowds were worrisome to the ruling classes of Europe. They seemed to represent a powerful and aggressive force likely to overthrow civic order. Crowds were understood as potentially savage things and a great deal of our public order legislation emanates from the nineteenth century and the panic around crowds, and their supposed potential for unrest, at the time. Today, we have a much more nuanced set of ideas about crowds be they at music festivals or commercially driven, such as in crowd sourcing. Crowds are no longer to be uniformly feared (Surowiecki 2004; rua Wall 2016). There is nothing new in our change of thinking about crowds; as law and society changes it throws up new ways to negotiate dissent and work through non-parliamentary views about our evolving democratic landscape. As we saw, in relation to joint enterprise crime, the law, nonetheless, seems to have problems dealing with complex matters involving several parties. Moreover, it tends to overlook the underlying networks of history and culture that permeate any social situation, and certainly this holds in the case of a protest demonstration. This neglect also seems to overlook the police as a causal agent who are usually only thought of, in turn, as coming in after the fact of the crime, breach or some such. There is no serious consideration given to the way the police are understood, or that the role of the police is in any way contentious: ideas about police legitimacy or protestor victimisation are given scant regard. In a dynamic sociological space, that of the protest, the othering of protestors by the police forms no formal part of any judicial process; instead the police are generally portrayed as neutral agents with no skin in the game, as it were. Moreover, when the police do move in and arrest somebody during a protest there is a neglect of matters, such as race and religion, which may play into an underlying narrative of prejudice and unwarranted victimisation. The crowd is, of its nature, a heterogeneous creature and the good and the bad are all mixed together. It also changes its composition over time. The crowd is inherently unstable, in a formal sense, and liable to alter in its mood from moment to moment. The behaviour of the crowd at t1 is no clue whatsoever to its behaviour at t2. Though this undoubtedly is the case, by overlooking the ways in which the actions of one group, the police, may alter the behaviour of another group, the crowd, is never given a proper weighting in the understanding of the actions of crowds (Drury and Reicher 2000). What, in the example of the kettle, is represented as a mechanism for order is really a mechanism through which the police can ignore the heterogeneous nature of the crowd and treat everyone the same, though not are all equally deserving. However, the power of the kettle, and police tactics generally, are not typically seen as casual. The fact that the kettle itself may turn the good into bad, or at least affect the behaviour of the protestors in question, is at best underplayed. The defence of the kettle by the police is always in terms of its facilitating the capture of the bad and the freeing of the good, as if this was an easy, even clinical, operation. A good example of the police’s reasoning is given in the case of Castle v Metropolitan Police Commissioner which sets out, in detail, how the kettle is designed to boil the crowd. The crowd being contained will become agitated and unable to leave, and surrounded by police in body full armour, is at once an observable space for the police to decided who is, and who is not, a violent protestor.Footnote 17 The problem here is obvious; the police caused a great deal of frustration by employing the kettle as a tactic in the first place. Moreover, the violence within the kettle is not necessarily coterminous with any unrest prior to the institution of the kettle. The police may well have caused the behaviour they are supposedly there to deal with. What the kettle does do very effectively is to restrict the area the police are in control of in terms of physical space. In media terms too, it has the helpful by-product of focusing attention on to the dense and boiling crowd. The police are seen to be containing the unruly mob. The mob seemingly irrational and out of control is a given. Its prior form, which may have been peaceful, is rarely considered. The kettle certainly plays well on television for the police, which is an increasingly important consideration in recent times.

A Way Forward?

It seems clear that there are many issues relating to the policing of demonstrations, and that our current legal settlement is not always up to the task it was set. It is certainly the case that the whole area of crowd dynamics and the fluidity of groups is pretty much absent in the public law account. Therefore, we have the lawful democratic rights of protestors on the one hand and on the other the demand for public order and for the rights of ordinary citizens to go about their everyday lives. These rights are supported in public law and deeply rooted in jurisprudence and an elaborated human rights discourse, whilst other claims are indebted to political action and sociological theory. The problem is simply that a lot of law is too abstract and detached to capture the dynamics of a demonstration; at the very least it comes with its own heavy baggage and established terminology. It is not generally set up to notice the complexities of a changing political landscape nor to see the importance of matters at hand. As Lobban noted, in the case of nineteenth-century demonstrations, we need to be aware of the complex interplay of political action and the legal process (Lobban 1990, 306–308; rua Wall 2016, 412). The courts need to be aware that the novelty of today is tomorrow’s norm. Moreover, as a society changes so does its means of political expression and the things it holds dearest. We must be wary of demonising the crowd and of creating criminals out of genuine protestors (Stott and Drury 2000). The danger of the kettle is simply that it is a mechanism for producing anxiety, often with associated violence: yet when the violence that the kettle produces is used either by way of instituting a prosecution, or simply for data storage, then something seems wrong. The notion of good and bad protestors is hardly the point if the violence in question is within the kettle. The kettle may well be a legitimate police tactic but we must be alive to the fact that it can criminalise the crowd and generate its own crimes through its anxiety-driven mechanism of containment. If a person takes part in violent disorder during a protest that is one matter, but it is another altogether if they engage in violent disorder because of the kettle itself. This is surely a form of entrapment. What I suggest is not some vast overhaul of public law nor some version of anarchy but simply more self-awareness of the sort Lobban drew our attention to. The 2010 student protests, against fees, for example, is now part of the Labour Party manifesto and if we have a new government, then will be part of government policy. An awareness of the fluidity of groups and of social norms would go a long way to addressing many of the issues that public order policing has thrown up in recent years. There must be more awareness too of the dangers of the kettling tactics used by the police, notably the Metropolitan Police, and the likelihood of creating a form of violence that was never part of the protest. Finally, beyond all of this, a sense of democracy on the part of the public authorities would be welcomed; by which I mean, protestors and police need to be aware that they both occupy , more or less, the same political space. In terms of a theoretical framework for working on such matters surely rua Wall is right to point us towards a hybrid approach; one that combines the legal with insights from sociology and psychology in his so-called law of crowds model (rua Wall 2016, 410–414). He argues:

… alongside this first sense of being subject to law, we can also identify the ‘law of crowds’ as a way of thinking about the crowd as the creative agent that produces new law (the law that crowds create or perhaps take possession of). This is the relation between the crowd (as turba, multitudo and vulgus) and the people; it is a way of thinking about constituent power as both revolt and augmentation. The ‘law of crowds’ is thus a way of thinking about recent events, such as Occupy , the Arab Spring, the Indignados and all of the other crowd phenomena around the world. It frames the law as the site of a series of creative and destructive processes. It is careful with the legal nuance, while refusing to be confronted by the claims to pure normativity without exception …. (it) is nothing less than a different way of thinking about the question of democracy itself. (rua Wall 2016, 414)

I think rua Wall is right here and that the law alone seems inadequate to the task of accounting for the multitude of dynamic political and social action that constitutes any crowd.