Case Comment: The Legality of ‘Kettling’ after Austin

DOIhttp://doi.org/10.1111/1468-2230.12032
AuthorNaomi Oreb
Publication Date01 Jul 2013
CASES
Case Comment: The Legality of ‘Kettling’ after Austin
Naomi Oreb*
This case comment considers the European Court of Human Rights decision of Austin vUnited
Kingdom (2012) 55 EHRR 14. Austin claimed, unsuccessfully, that police kettling at a public
protest in London amounted to a violation of her right to liberty under Article 5 of the European
Convention of Human Rights. This case comment suggests that the court took an unexpected
and unorthodox approach to the issue of ‘deprivation’ within Article 5. This decision may come
to undermine the protections afforded by Article 5 and extend the current exceptions to Article
5 to an indefinite range of situations.
INTRODUCTION
This case comment considers a recent decision of the Grand Chamber of the
European Court of Human Rights, Austin vthe United Kingdom1(Austin). The
European Court of Human Rights (ECtHR) there held, by a 14:3 majority, that
police kettling tactics used in the United Kingdom did not amount to a depri-
vation of liberty under Article 5(1) of the European Convention on Human
Rights (the Convention). This ruling followed the House of Lords decision of
Austin vCommissioner of Police for the Metropolis2which also found that Article 5(1)
was not engaged, but for different reasons.
The ECtHR’s decision in Austin is significant because it offered an unex-
pected and unorthodox approach to the issue of ‘deprivation’ within the unusual
structure of Article 5. It has the potential to affect a whole range of cases and may
herald an entirely new approach, if not perhaps a re-interpretation, of Article 5.
It may also come to extend the present list of Article 5 exceptions to an indefinite
range of situations. This case note surveys the similarities, differences and limi-
tations of both the ECtHR and House of Lords decisions, whilst recognising that
they ultimately yield similar practical results.
THE ROCK AND THE HARD PLACE
As outlined by the House of Lords, Lois Austin took part in a protest against
capitalism and globalisation in Oxford Circus, in London, on 1 May 2001.3An
estimated 6000 police cordoned, or ‘kettled’, approximately 3000 people for
*BA (Hons) LLB (Hons) Syd BCL (Dist) Oxon. The author would like to thank Professor Andrew
Ashworth and Dr Ryan Goss for their helpful guidance.
1 (2012) 55 EHRR 14.
3ibid at [3]–[4].
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© 2013 The Author. The Modern Law Review © 2013 The Modern Law Review Limited. (2013) 76(4) MLR 735–756
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA

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