Guest Post: Who's Breaching Whose Peace?: R (Moos & Mclure) v Commissioner of the Police

Human Rights in Ireland is delighted to welcome this guest post by Gilbert Leung, kindly reposted from Critical Legal Thinking.

On 14 April 2011, the High Court of England and Wales ruled, in R (on the application of Joshua Moos and Hannah McClure) v The Commissioner of the Police of the Metropolis, that the police had acted unlawfully in “containing” (aka kettling) certain G20 protestors on 1 April 2009. It made clear that the police must be in reasonable apprehension of an “imminent breach of the peace” before taking “preventative action”. Preventative action includes kettling, but only “as a last resort catering for situations about to descend into violence”. That the police cannot arbitrarily kettle protestors can be seen as good news for political activists. The bad news, for those who see kettling as an always unjustifiably brutal form of collective punishment, is that the High Court affirmed its legality under the conditions stated above. And with these conditions, there is always room for interpretation.

For example, in defining the word “imminence”, the judges said that it simply meant a breach of the peace was “likely to happen”. At the same time, they admitted that any determination of likelihood “may be applied with a degree of flexibility” by the police. Add to this the necessity for reasonable apprehension (what is reasonable?), it becomes clear that you don’t have to look too far to see that significant discretion is still retained by the police. How this bears out in practice is yet to be seen, but certain signs point towards a state of peace––officially the Queen’s peace––that is constitutively haunted by a violence that is sometimes latent, hidden and silently simmering, and at other times overt, furious and bloody.
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Guest Post: Who's Breaching Whose Peace?: R (Moos & Mclure) v Commissioner of the Police