Stop and search powers violate human rights

The search took place in public and failure to submit to it amounted to an offence punishable by imprisonment or a fine or both.

Sections 44 to 47 of the 2000 Act came into force on February 19, 2001. A rolling programme of successive section 44 authorisations, each covering the whole of the Metropolitan Police area and each for the maximum permissible period of 28 days, had been made and confirmed ever since that time.

Between 2004 and 2008 the total of searches recorded by the Ministry of Justice went from 33,177 to 117,278.

The applicants, Mr Kevin Gillan and Ms Pennie Quinton, were British nationals who were born in 1977 and 1971 respectively and lived in London.

On September 9, 2003 they were both stopped and searched by the police, acting under sections 44 to 47, while on their way to a demonstration close to an arms fair held in the Docklands area of East London.

Mr Gillan was riding a bicycle and carrying a rucksack when stopped and searched by two police officers. Ms Quinton, a journalist, was stopped and searched by a police officer and ordered to stop filming in spite of the fact that she showed her press cards.

Mr Gillan was allowed to go on his way after having been detained for about 20 minutes; the record of Ms Quinton’s search showed she was stopped for five minutes but she thought it was more like 30 minutes.

The applicants applied for judicial review. The Queen’s Bench Divisional Court (Lord Justice Brooke and Mr Justice Maurice Kay) dismissed the application (The Times November 5, 2003). The Court of Appeal (Lord Woolf, Lord Chief Justice, Lord Justice Buxton and Lady Justice Arden) dismissed the claim against the Home Secretary (The Times August 12, 2004; [2005] QB 388). The House of Lords (Lord Bingham, Lord Hope, Lord Scott, Lord Walker and Lord Brown) unanimously dismissed the applicants’ appeals (The Times March 9, 2006; [2006] 2 AC 307).

The applicants complained, before the Human Rights Court, that the use of the section 44 power to stop and search each of them breached their rights under articles 5 (right to liberty), 8, 10 (freedom of expression) and 11 (freedom of assembly and association).

I Article 8

Whether there was an interference

The Court considered that the use of the coercive powers conferred by the antiterrorism legislation to require an individual to submit to a detailed search of their person, clothing and personal belongings amounted to a clear interference with the right to respect for private life.

The public nature of the search, with the discomfort of having personal information exposed to public view, might even in certain cases compound the seriousness of the interference because of an element of humiliation and embarrassment.

The interference could not be compared to searches of travellers at airports. An air traveller could be seen as consenting to such a search by choosing to travel.

The search powers under section 44 were qualitatively different. The individual could be stopped anywhere and at any time, without notice and without any choice as to whether or not to submit to a search.

Whether interference “in accordance with the law”

In the Court’s view, the wide discretion conferred on the police under the 2000 Act, both in terms of the authorisation of the power to stop and search and its application in practice, had not been curbed by adequate legal safeguards so as to offer the individual adequate protection against arbitrary interference.

First, at the authorisation stage there was no requirement that the stop and search power be considered “necessary”, only “expedient”. The authorisation was subject to confirmation by the Home Secretary within 48 hours and was renewable after 28 days.

The Home Secretary could not alter the geographical coverage of an authorisation and although he or she could refuse confirmation or substitute an earlier time of expiry, it appeared that in practice that had never been done.

Indeed, the temporal and geographical restrictions provided by Parliament had failed to act as any real check on the issuing of authorisations by the executive.

An additional safeguard was provided by the Independent Reviewer appointed under the 2000 Act. However, his powers were confined to reporting on the general operation of the statutory provisions and he had no right to cancel or alter authorisations, despite the fact that in every report from May 2006 onwards he had expressed the clear view that “section 44 could be used less and I expect it to be used less”.

Of still further concern was the breadth of the discretion conferred on the individual police officer. The officer’s decision to stop and search an individual was one based exclusively on hunch or professional intuition.

Not only was it unnecessary for him to demonstrate the existence of any reasonable suspicion; he was not required even subjectively to suspect anything about the person stopped and searched.

The sole proviso was that the search had to be for the purpose of looking for articles which could be used in connection with terrorism, a very wide category which covering many articles commonly carried by people in the streets.

Provided the person concerned was stopped for the purpose of searching for such articles, the police officer did not even have to have grounds for suspecting the presence of such articles.

The Court was struck by the statistical and other evidence showing the extent to which police officers resorted to the powers of stop and search under section 44 and found that there was a clear risk of arbitrariness in granting such broad discretion to the police officer.

While the present cases did not concern black applicants or those of Asian origin, the risks of the discriminatory use of the powers against such persons was a very real consideration and the statistics showed that black and Asian persons were disproportionately affected by the powers.

There was, furthermore, a risk that such a widely framed power could be misused against demonstrators and protestors in breach of article 10 and/or 11.

Although the powers of authorisation and confirmation exercised by the senior police officer and the Home Secretary respectively were subject to judicial review, the breadth of the discretion involved meant that applicants faced formidable obstacles in showing that any authorisation and confirmation was ultra vires or an abuse of power.

Similarly, as shown in the applicants’ case, judicial review or an action in damages to challenge the exercise of the stop and search powers by a police officer in an individual case were unlikely to succeed.In conclusion, the Court considered that the powers of authorisation and confirmation as well as those of stop and search under sections 44 and 45 of the 2000 Act were neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse.

The Court therefore held, unanimously, that they were not in accordance with the law, in violation of article 8.

II Articles 5, 10 and 11

Given the above finding, the Court held that it was not necessary to examine the applicants’ complaints under articles 5, 10 and 11.

III Article 41

The Court held that the finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage suffered by the applicants. They were awarded €33,850 for costs and expenses.