Solicitors Journal -Kettling

Kettling will not always be lawful 26 March 2012

By Sophie Khan
Recent cases reinforce the proposition that police containment must only be used in exceptional circumstances, says Sophie Khan

On 15 March 2012 the European Court of Human Rights delivered the long-awaited judgment in Austin & Others v UK (Application nos 39692/09, 40713/09 and 41008/09). The court held “that there was no deprivation of liberty” and that “since article 5 is inapplicable, there has been no violation of that provision in this case”.
The judgment has come as a disappointment to those who believe that the police tactic of containment, or ‘kettling’, is deployed to dissuade individuals from exercising their right to freedom of expression and freedom of assembly. However, if closer examination is given not just to the Strasbourg judgment in Austin but also the recent Court of Appeal case of R (Hannah McClure and Joshua Moos) v The Commissioner of the Police of the Metropolis [2012] EWCA Civ 12 and the case of Castle & Others v Commissioner of Police for the Metropolis [2011] EWHC 2317 (Admin), there is a clear message contrary to that view. All three judgments, based on their own specific facts, recognise the fundamental right to freedom of assembly and instead of giving the police a ‘green light’ to curtail the right to protest are laying down strict guidelines for them to follow.
In Austin, for example, it is held 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. Had it not remained necessary for the police to impose and maintain the cordon in order to prevent serious injury or damage, the ‘type’ of the measure would have been different, and its coercive and restrictive nature might have been sufficient to bring it within article 5.”
The same theme can be seen in the judicial review brought by McClure and Moos who challenged the strategic decision made by the Metropolitan Police to ‘kettle’ the Climate Camp based outside the Climate Exchange Building in Bishopgate on 1 April 2009. The judgment of the Master of the Rolls states: “We have concluded that a decision to contain a substantial crowd of demonstrators, whose behaviour, though at times unruly and somewhat violent, did not of itself justify containment…” and: “Containment of a crowd involves a serious intrusion into the freedom of movement of the crowd members, so it should only be adopted where it is reasonably believed that a breach of the peace is imminent and that no less intrusive crowd control operation will prevent the breach.”
An appeal against this judgment has been made to the Supreme Court which in due course will hear the arguments afresh; however, from reading of the judgment I find it difficult to see how a different conclusion will be reached, especially as the test and requirements to contain a crowd are clearly stated. The exceptional circumstances of both Austin and Moos cannot be ignored, and, had there not been a reasonable apprehension of an imminent breach of the peace in both instances, it is unlikely that containment would have been authorised.

Last resort

Containment was also authorised in Castle, again due to an imminent breach of the peace. Claims were brought by Adam Castle, Rosie Castle and Sam Eaton to challenge their containment within Whitehall on 24 November 2010. Adam and Sam were then 16 years old and Rosie was 14. All three had taken part in a demonstration against the proposed rise in university tuition fees and the removal of the educational maintenance allowance. They alleged that their detention within the containment was unlawful as “the defendant’s decision to contain and, therefore, to detain children constituted a breach of his duty under section 11 Children Act 2004” and that they were detained for an excessive period of time.
Pitchford LJ acknowledged “that the defendant... owed a statutory duty to have regard to the need to safeguard children and to promote their welfare”. However, he rejected the assertion that there had been no regard to that need and did not consider that the defendant was in breach of this duty or any of his public law duties.
Although the claims were dismissed it should be noted that the judgment provides guidance to the police if they take steps to interfere with an individual’s freedom of movement. It is held that: “The obligation upon the defendant was to avoid such action if he could. That duty required, where practicable, planning for alternatives to containment and, in any event, to minimise its impact on innocent third parties.” It goes on to say: “If the decision maker is unable to show that he could not, by taking reasonable steps, have avoided the need to use containment, or have mitigated the consequences to innocent third parties, in particular children, then he will have acted unlawfully towards them in breach of his public duty.”
This judgment reinforces the argument that ‘kettling’ is the last resort and that the police must scrutinise their actions if they are to stay within the law. The perception that police containment will always be lawful is not prescribed by case law and peaceful protests should continue to be held without fear or favour.
Postscript:Sophie Khan is a solicitor-advocate specialising in actions against the police at GT Stewart Solicitors (http://gtstewart.co.uk)
http://www.solicitorsjournal.com/story.asp?storycode=19829&encCode=675077316BC1060233JTBS737226611

Tasers in Times Law

Tasers - time to restrict their use?

Sophie Khan

Published at 12:01AM, February 23 2012

Police officers must ensure that stun guns are used to the letter of the law or they may see face criminal charges

The incident in London last Sunday resulted in a 25-year-old man being Tasered and shot by firearms officers in the early hours of the morning, raising again the issue of the reasonable use of force by police. Was the dual use of the stun gun and firearms justified and proportionate?
The Taser-related incident in South East London on February 19 occurred within days of Amnesty International urging stricter limits on the use of the Taser stun gun.
Last week, it was reported that a 43-year-old man, Johnnie Kamahi Warren, had been Tasered twice by a police officer in Dothan, Alabama and died within hours due to breathing difficulties. Amnesty International has recorded that since 2001 there have been at least 500 people who have died in America following the use of the Taser either during arrest or while in jail.
The Taser stun gun, which is classified as a prohibited weapon under Section 5 of the Firearms Act 1968, should only be used when officers are facing violence or threats of violence of such severity that they would need to use force to protect the public, themselves or the subject. Outside this remit the use of the Taser would become unlawful and a potential breach of Article 3 of the European Convention of Human Rights, which states that “no one shall be subjected to torture or inhuman or degrading treatment, or punishment”.
Media reports tend to suggest that force on this occasion was disproportionate and reaffirm the need for a review of the ACPO Taser Policy and Operational Guidance.
Since 2008, there have been a significant number of cases that have involved Taser use on those suffering from mental health issues. Although the Guidance specifically states that caution should be taken against use on certain groups of people, in reality little regard is given to such warnings.
This is evident by the Channel 4 report last year, which found that there had been on average an increase of 130 per cent in Taser use across most police forces. It is difficult to see how the police can justify such an increase in one year, further weight to the view that the Taser is being used disproportionately and that we should take on board Amnesty International’s call to restrict the use of Tasers.
Tasers have a part to play in modern policing and if their use is correctly regulated and monitored then they could be an effective deterrent in the fight against crime. But until that time police officers must take appropriate steps to ensure that their use is to the letter of the law otherwise they may see themselves subject to criminal charges.
Sophie Khan, solicitor-advocate specialising in Actions Against the Police at GT Stewart and represents a number of people Tasered by the police 

http://www.thetimes.co.uk/tto/law/article3328524.ece

Solicitors Journal -Warning about Tasers

The Met Police must heed the warnings about Tasers
12 December 2011

Evidence shows this weapon can kill – it should be restricted to life-threatening circumstances, says Sophie Khan

The commissioner of the Metropolitan Police, Bernard Hogan-Howe, may be new to his post but he has already started to ruffle the feathers of many in London.

Along with the commissioner’s ‘Total policing’ programme, which aims to crack drown on gangs, uninsured drivers, and those who do not own a TV licence, he is proposing a widespread introduction of the Taser stun gun onto the streets of our cities. This backdoor militarisation of our unarmed police force, if implemented, would end centuries of traditional ‘policing by consent’ and propel us into a dangerous world of ‘policing by compliance’ where those arrested will be routinely subjected to 50,000 volts of electric shock.

His proposal on 22 November 2011 was made following the stabbing of three Metropolitan police officers on 19 November 2011 in a butcher’s shop in Kingsbury, Harrow, and made in isolation of the current statistics that show a dramatic rise in the use of the Taser stun gun over the last year. On average there has been a 130 per cent increase across the forces. The statement by the Metropolitan Police Service following the commissioner’s comments earlier on the same day confirm that “a piece of work is ongoing to review the current availability of Tasers”.

Tasers are defined in ACPO’s Taser Operational Guidance 2008 as “a single shot weapon designed to temporarily incapacitate a subject through the use of an electrical current, which temporarily interferes with the body’s neuromuscular system”. Their use is only permitted “when officers would be facing violence or threats of violence of such severity that they would need to use force to protect the public, themselves or the subject(s)”. If the use of the Taser falls outside this criteria then the offence of torture may have been committed as section 134(1) of the Criminal Justice Act 1988 states that “a public official or person acting in an official capacity, whatever his nationality, commits the offence of torture if in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties”.

The lack of a definitive list of circumstances in which a Taser can be deployed has left officers exposed to both criminal charges and violations of the Human Rights Act 1998. The state’s duty under article 3 of the European Convention of Human Rights provides that “no one shall be subjected to torture or inhuman and degrading treatment or punishment”. The use of the Taser stun gun could be an arguable breach of article 3 if officers are unable to establish the ‘appropriate’ and ‘necessary’ test for deployment. Assenov v Bulgaria [1999] 28 EHRR 652 provided further weight to this argument: “In respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in article 3.”

Fatal consequences

A separate concern is the multiple Taser discharges that have lead to hundreds of deaths in the US. In 2008, Darryl Turner, a 17-year-old shop assistant in Charlotte, North Carolina, died after the Taser discharge was extended to a 37-second shock, and, in 2005, Robert Heston, a 40-year-old Californian man, was subjected to 75 seconds of repeated Taser discharges and died of a heart attack.

Taser International, the company that manufactures the Taser stun gun was ordered to pay $10m (£6m) and $6.2m (£3.7m) respectively in compensation to their families. The company maintains that although the product is safe it is not risk-free and for this reason the Taser is classified as a ‘prohibited weapon’ by virtue of section 5 of the Firearms Act 1968.

It is therefore worrying to learn that the Home Office has labelled the Taser a “tool that helps protect the public” when evidence shows the contrary. In the last year Tasers have been used on the elderly and on children and used by the Metropolitan Police’s territorial support group on teenagers in public disorder situations since 2008. The most recent reported use of the Taser was on the man who had injured the officers on 19 November after he allegedly continued to resist arrest at the police station. He was Tasered twice.

The Taser is a lethal weapon and its use can only be justified in life-threatening circumstances. The warning sign that an even wider use of the Taser could lead to fatalities should not be ignored and raises questions as to why the commissioner has not taken that into account. A public consultation on the use of Tasers is now overdue, and, in light of the ‘independent’ review commissioned by Labour into the future of policing in the 21st century, there is no better time to talk about Tasers.

Postscript:

Sophie Khan specialises in actions against the police at GT Stewart and represents a number of people who have been Tasered by the police. Contact: s.khan@gtstewart.co.uk

http://www.solicitorsjournal.com/story.asp?storycode=19323&encCode=410872516BC9777133JTBS737226611

ETHNIC MINORITIES DON’T ‘FIT THE IMAGE’

Posted on November 1, 2011 by Sophie Khan

It’s harder to get on in law if you’re not white, argues solicitor-advocate Sophie Khan

The August riots have forced the debate on whether there truly are equal opportunities for ethnic minorities in this country. Recent analysis by the Ministry of Justice and the Home Office into the background of those arrested have highlighted that a disproportionate number were young ethnic minorities who were unemployed and had been left behind in society.

You may think that the picture is different in the legal profession, but it’s not. From what I have seen over the years in my area of law (public law), it is now harder than ever for ethnic minorities to secure training contracts and pupillages. Not because of their want of trying or due to their abilities, but because many of them do not fit the image that law firms or barristers chambers are looking for in candidates to represent the future of their establishments.

Even in corporate firms, which have significantly increased the number of ethnic minority lawyers they employ, there remains a large underrepresentation of black people relative to the general population.

So why has this issue been ignored, or at least paid insufficient attention, for so long? Apart from one or two surveys that have identified this trend over the last couple of years, which includes the publication by the Law Society in May 2010 of Understanding the Barriers, there have been no active steps taken by many areas of the legal profession to address the increasing difficulties that ethnic minorities face when entering the legal profession.

The compulsory diversity data that all firms and chambers will have to publish by 2012 may be seen as way forward to try and force law firms and chambers to re-evaluate their stance on their employment practices towards ethnic minorities. But I do not believe that this will go far enough to address the issue, as the accuracy of the data will depend on whether the questions are answered in the first place. Many solicitors and barristers may choose not to disclose their diversity information for personal reasons.

In my opinion, this deep-rooted issue has to be tackled top-down if there is to be any meaningful change in the diversity of the profession. The changes will have to be led by partners and senior barristers who play a significant role in the recruitment procedure. They will have to set aside their own prejudices and recognise the strengths of employing candidates who may not fit their image but who fit an image that is widely recognised as the future of our society. And hopefully at some point these candidates will filter through to currently extremely white judiciary.

Sophie Khan is a solicitor-advocate specialising in actions against the police and public law at GT Stewart. She blogs at sophiekhan.blogspot.com and will be appearing on the #RoundMyKitchenTable podcast, hosted by Legal Cheek, this Friday.

http://www.legalcheek.com/?p=1079

#RoundMyKitchenTable: Legal Cheek

#RoundMyKitchenTable: PROTESTS, DISCRIMINATION AND MEMORIES OF PRINCESS DI

Posted on November 4, 2011 by Legal Cheek

Civil liberties lawyer Sophie Khan has a very different take on the OccupyLondon protests to #RoundMyKitchenTable co-host Kevin Poulter , a corporate lawyer. Journalist Alex Aldridge manages to disagree with them both. At which point, they change the subject and have an argument about discrimination faced by ethnic minority lawyers and law students, spurred by an article written by Sophie on Tuesday . Listen to this fiery exchange below (or on iTunes ).

#RoundMyKitchenTable4Nov.mp3 (22:00)

Download the MP3

Date: November 4, 2011

By: Legal Cheek

For #RoundMyKitchenTable on iTunes, click here

For a transcript of the podcast, click here. Transcript provided by Stretlaw.com Your access to Legal Education, 2011

http://www.legalcheek.com/?p=1327

Solicitors Journal- Singled Out

Singled out
15 August 2011


Main Page Content:By Sophie Khan

The detention of children should always be the last resort – the courts should not treat young protestors differently, argues Sophie Khan

The detention of the young has always been a controversial issue, not just because of the impact that a custodial sentence will have on the young person but also because it shines a grim light on society as a whole in allowing the young to be locked up in this way.

The Lord Chancellor’s pledge to reduce the number of custodial sentences is yet to be seen, as many young adults are still incarcerated for their crime even when non-custodial sentences may have been more appropriate in the circumstances of some cases. There are between 2,000 to 3,000 children aged between ten and 17 in custody at any one time either under sentence or on remand in England and Wales, and there does not seem to be any effective steps being taken to reduce that number.

The recent student and anti-cut protests which saw mass arrests of young people across the country by officers from Operation Malone and Brontide have now resulted in protestors receiving custodial sentences. The first of the student protestors to be sentenced was 18-year-old schoolboy Edward Woollard, who was sentenced to 32 months in January 2011 and is serving his sentence at a youth offender’s institute. This month we have seen the custodial sentences of students Francis Fernie, 20, and Charlie Gilmour, 21, who were sentenced to 12 and 16 months respectively.

But is custody the right option when it comes to sentencing young protestors? The offence in many occasions is a one-off incident, out of character for the young person who before this time has never been in trouble with the law. Although ‘deterrent sentences’ have a part to play in reducing the level of crime, they should not be seen as a solution when sentencing a protestor as no sentence will stop protests from happening.

Instead of the ‘deterrent sentence’, the courts must recognise that a non-custodial sentence will also get the message across to the younger generation that their actions were not acceptable, and most importantly will give them that much deserved second chance.


The harsh penalty of a custodial sentence should be a last resort and is seen as the last resort when it comes to youth detention in other types of cases. The judgment by Lord Justice Toulson in the case of R (on the application of A) v Lewisham Youth Court (Defendant) & Director of Public Prosecutions (Interested Party) [2011] EWHC 1193 Admin reaffirms the stance that courts should take when sentencing the young. This case was a judicial review by the claimant of the decision to remand him in custody in prison, rather than secure accommodation following his arrest and charge for an offence of murder. It was held that: “Even for a child or young person charged with an offence as grave as murder, remand in prison establishment should be the last resort. It was impossible to believe that parliament could have intended prison to be mandatory, regardless of whether the defendant could be safely kept in more suitable accommodation.”

The case of R (on the application of Suppiah and Others) v Secretary of State for the Home Department [2011] EWHC 2 Admin, which concerned the detention of two families, Ms Suppiah and her two children and Ms Bello and her child, also recognised that the detention of children should be the last resort. The Yarl’s Wood family unit detention centre subsequently had to close as it was held that the detention of children in those circumstances was unlawful.

Although many of the protestors who are facing charges are not children, they are young, vulnerable adults and equal consideration needs to be given to their age if they are sentenced. This approach does not seem to have been followed in all occasions and instead there has been a disproportionate response by the court in opting for the custodial sentence above all else which needs to be addressed quickly.

There is no reason why young protesters should be singled out in this way, and we need to keep the last resort last if we are to give the young protestors equal treatment within the law.


Postscript:

Sophie Khan is a solicitor-advocate specialising in actions against the police and public law at GT Stewart. Contact: s.khan@gtstewart.co.uk

http://www.solicitorsjournal.com/story.asp?sectioncode=3&storycode=18825&c=3

On the Beat- Keeping the flame alive

Sophie Khan talks shop

12 August 2011 – Keeping the flame alive

Is this the summer of protests? It definitely looks that way, and with protests, marches and demonstrations being organised on a weekly basis, it is time the government listened to the voices of the protestors and recognised the real damage that their reforms will have on the ordinary person.

Last month we saw the march to ‘Defend the NHS’ on its 63rd birthday and the month before the national strike on 30 June called by the National Union of Teachers (NUT) and the Association of Teachers and Lecturers (ATL), supported by the Public and Commercial Services Union (PCS), which lead to the closure of many schools and disruption at some airports as the UK Border Agency staff also joined the picket line.

The silence by Francis Maude, minister for the Cabinet Office, following the strike was priceless as he had previously rubbished the strike and had accused the strikers to have “jumped the gun”. But it is his government that has jumped the gun, by pushing through austerity cuts without real consultation and not recognising the severe impact these reforms will have on hundreds of thousands of people. The controversial comments by Oliver Letwin, the coalition’s policy minister, at a meeting with his constituencies over the weekend, that he is to instil “some real discipline and some real fear” only goes to show that the government knows that they have a fight on their hands against the cuts and one that they may not win.

So the right to protest and strike against the cuts continues and with preparations being made in Manchester for the Tory conference in October. How is the government going to quell the air of resistance?

The scaremongering tactics to arrest non-violent protestors during protests included the ‘snatch and grab’ seen on 30 June of a young man outside Charing Cross train station. The reason why the young man was arrested is unknown but what is clear from the footage of the incident on Youtube is that a group of policeman forcibly removed him from where he was standing in the crowd and took him away from the area.

The rise of the pre-crime arrests of activists before royal weddings is another example and is a tactic that is used by the police to round up known activists regardless of whether a crime has been or will be committed. This new policy stems from the ‘thought’ of a possible crime rather than whether there is evidence that a crime is going to be committed and seems to be taken straight out of George Orwell’s novel 1984 where it was the job of the thought police to uncover and punish thoughtcrime. The newsletter published on 29 July 2011 by Project Griffin, a police initiative which assesses the threat of terrorism in the City of Westminster, adds further weight to the thoughtcrime, as one of their initiatives is to report any information relating to anarchists to your local police.

These policies and tactics will not deter the protest movement which continues to gain momentum, but these need to be fought with the same vigour and force as the protests themselves. If it can be shown that the police tactics used are questionable or illegal then those arrests need to be challenged by lawyers at an early stage. Now is the time to mobilise an ‘army of lawyers’ against the ‘army of police’ to counter these practices, and the Lawyers’ Activist Network is one step towards bringing together pro-protestor lawyers from across the country to provide crucial support to activists so that their right to protest is protected.



http://www.solicitorsjournal.com/story.asp?sectioncode=3&storycode=17725&c=1