More on Stop and Search powers

The decision of the ECtHR in Gillan and Quinton has given rise to some interesting comment. See a good contribution by Vicky Conway Stop and Search and the Human Rights Boundaries” on the Human Rights In Ireland blog.

And in today’s Guardian, Sir Ian Blair, former Commissioner of the Metropolitan Police, has argued in favour of the powers ruled illegal by the Court in an article entitled “In defence of stop and search“. The main thrust of his argument is that the ends justify the means, and if it was not for such powers the police would victimise suspect communities:

Were the power to be abolished or unduly curtailed in its application … two
consequences are likely. The first is that it would be almost inevitable that police officers would, as a pragmatic solution, begin to target these kind of searches much more closely on the particular community from which the current threat is seen mainly but not exclusively to come, young Muslims, with all the increase in alienation that would engender. Inconvenience shared must be preferable. Second, and avoidably, Britain would simply be less safe.

This seems to miss the clear points made by the court that firstly, those commuties were actually being targetted under the powers in the Terrorism Act 2000 and presumably the police felt justified and empowered to do that, and secondly, that no one had been charged with any terrorism related offences following a stop and search.

No country should allow their police to justify random and extensive stop and searches under the justification of making terrorists understand (as in airports) “that they are at risk, however covert their behaviour, of being searched and having their details logged at random.”

The decision of the ECtHR seems to be lost of Sir Ian Blair. It will be interesting to see if the British Government understand a little better the importance of Article 8 rights in relation to stop and search powers.

Gillan & Quinton v. UK – ECtHR rules UK police stop and search powers violate Art 8

The European Court of Human Rights yesterday decided that the UK’s anti-terrorism legislation allowing police to stop and search individuals without reasonable suspicion of wrongdoing breached Article 8 of the ECHR.

Sections 44-47 of the Terrorism Act 2000 provide senior police officer’s with the power to issue an authorization, if s/he thinks it “expedient for the prevention of acts of terrorism” which allows uniformed police officers within a defined geographical area to stop anyone and search them. These provisions go beyond the normal stop and search powers under the Police and Criminal Evidence Act 1984 which require that the police officer has a “reasonable suspicion” that the individual possesses a “prohibited article” or is about to or has committed a crime. The authorizations under the 2000 Act are designed to be temporary lasting only 28 days and only within a limited area. However, the reality of the use of these provisions has seen the entire area of Greater London designated as suitable for searches and the authorization continuously renewed to the extent that the powers operated over a number of years. Thus the extraordinary power was normalized, something that was to have an impact upon the decision of the court.

The case of Gillan & Quinton v. UK was brought following stops and searches of the applicants at a demonstration against an arms fair in London in 2003. Gillan was a protester and Quinton a photo journalist. They challenged their treatment at the hands of the police through a judicial review which was dismissed in the domestic courts (R. v. Commissioner of Police for the Metropolis and another). The House of Lords decision had been criticized for taking a weak approach to judicial review, or even showing excess deference to the executive, in the area of anti-terrorism powers. The court was doubtful that an ordinary search carried out by the police would amount to a lack of respect for a person’s private life. And that even if Article 8 of the convention was relevant the procedure under the 2000 Act was “in accordance with the law” and that it would be “impossible to regard a proper exercise of the power as other than proportionate when seeking to counter the great danger of terrorism.”

A case was then brought to the European Court of Human Rights claiming violations of Articles 5 (right to liberty), 8 (right to respect for private and family life), 10 (freedom of expression) and 11 (right to free association).

The ECtHR found a violation of Article 8 and so did not go on to consider the other violations raised by the case. It did, however, indicate that it felt that there was a breach of Article 5. In particular it noted that although neither applicant had been held for longer than 30 minutes they were during that period “entirely deprived of any freedom of movement. They were obliged to remain where they were and submit to the search and if they had refused they would have been liable to arrest, detention at a police station and criminal charges.” The court noted that the elements of coercion were “indicative of a deprivation of liberty” within Article 5. This is in contrast to the House of Lords decision in which Lord Bingham concluded that the brief nature of stop and search and the lack of handcuffs/confinement meant there was no “deprivation of liberty”.

In relation to Article 8 the court found that stop and search powers were a clear interference with the privacy of the person.

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 court went on to conclude that the interference was not “in accordance with law” finding that the “wide discretion” provided by the legislation had not been limited by adequate legal safeguards to prevent abuse of the process. The court noted the statistical and other evidence that had been presented to it showing the extent of the police powers under the law.

The Ministry of Justice recorded a total of 33,177 searches in 2004/5, 44,545 in 2005/6, 37,000 in 2006/7 and 117,278 in 2007/8. In his Report into the operation of the Act in 2007, Lord Carlile noted that while arrests for other crimes had followed searches under s.44, none of the many thousands of searches had ever related to a terrorism offence; in his 2008 Report Lord Carlile noted that examples of poor and unnecessary use of s.44 abounded….

The court concluded that there were clear risks of discriminatory use of stop and search powers with the data showing a “disproportionate” impact on black and Asian persons. In relation to the case at hand the court also noted that risk that “widely framed” powers could be “misused against demonstrators and protesters in breach of Article 10 and/or 11 of the Convention”.
The decision of the court therefore recognizes the reality of the use of stop and search powers, both in relation to ethnic minorities and demonstrators. The evidence from the Carlile reports powerfully demonstrates the long argued position that allowing the police to stop and search on the basis of a hunch, and without “reasonable suspicion” will have a tendency to result in arbitrary and discriminatory use of those powers.
The judgment of the court therefore criticizes the whole process by which the stop and search powers under the 2000 Act were authorized by both police and the Home Secretary. The lack of control and the ability of the police to stop people based on instinct clearly raised serious concern about the arbitrary nature of the powers. Whilst the immediate response from the UK government was that their lawyers were reviewing the judgment it is interesting to note that the Metropolitan Police took a decision in 2009 to curtail the use of s44 powers.

The seriousness of the situation relating to the police use of stop and search in the UK was emphasized on the day of the courts judgment when the Guardian reported that Kent Police had admitted conducting illegal searches on 11 year old twins at an environmental demonstration. The admission came as part of a court case brought by protests against the policing of the demonstration at the Kingsnorth power station in 2008. The search had been part of a “checkpoint” system set up by the police which saw over 3500 protesters systematically stopped and searched.

Using the CRC to protect the child’s rights in youth crime in England and Wales

This blog post was contributed by Dr Kathryn Hollingsworth, Senior Lecturer in Public Law at King’s College London

The UN Convention on the Rights of the Child is not domestically enforceable in England and Wales, but its profile – and the profile of children’s rights generally – has been raised in recent years thanks to the campaigning efforts of NGOs such as the Children’s Rights Alliance for England, the Howard League for Penal Reform, and UNICEF. On 19th November 2009 a private member’s bill, The Children’s Rights Bill 2009, had its first reading in the House of Lords. The Bill, if passed, will have the effect of incorporating the UN Convention on the Rights of the Child into UK domestic law, using procedures which mirror those set out in the Human Rights Act 1998 by which the European Convention on Human Rights was ‘brought home’ to the UK.

The chances of the Children’s Rights Bill making its way onto the statute book are slim. But that does not mean that the CRC has no place in English law. In the last five years, the judiciary in England and Wales have increasingly drawn on the CRC in order to interpret the rights of children in domestic law. Lady (previously Baroness) Hale and Lord Justice Munby have been particularly instrumental in this regard. This has had an important and positive impact on the protection of children’s rights, especially in the youth crime context.

The leading decision is R (on the application of R) v Durham Constabulary [2005] UKHL 51, where Baroness Hale made it clear that the CRC must be used to interpret the meaning of the child’s enforceable rights under the ECHR. The case concerned the system of diversion in England and Wales and specifically the question of whether the absence of a requirement for a child to consent to a reprimand or warning constituted a breach of the child’s Article 6 ECHR right. Baroness Hale drew on Article 40(3)(b) and 40(4) CRC, as well as the Beijing Rules and the Riyadh Guidelines, and expressed her ‘grave doubts’ as to whether the system of diversion in England and Wales complied with the CRC (because of its rigidity and because it propels the child more quickly through the criminal justice system). Crucially, however, Baroness Hale pointed out that the lack of a requirement to gain the child’s consent before being issued with a final warning did not breach the child’s enforceable rights under the ECHR.

Despite the unfavourable outcome for the child in this case, Baroness Hale’s dicta is permeating through into other cases. One area of youth crime where the child’s CRC rights are of particular importance is where the child is detained in a custodial institution. Here the CRC can be used to emphasise the child’s status as child – the need to care for the child as a child rather than as a ‘prisoner’. Article 3 CRC can be especially useful here. For example, Mr Justice Munby (as he was then) drew on the CRC in his landmark judgment in R (on the application of Howard League) v Secretary of State for the Home Department [2002] EWHC 2497. In particular, the child-specific obligations such as Article 3 CRC imposed ‘on the Prison Service positive obligations to take reasonable and appropriate measures’ designed to ensure that children in YOIs are treated with humanity and with respect for their dignity, and that they are not subjected to torture or inhuman or degrading treatment. In particular, when balancing the interests of the child against the wider interests of the community and other inmates, Mr Justice Munby argued that regard should be had to the inherent vulnerability of children in a YOI, and also to the principle that the best interests of the child should be a primary consideration. This approach was followed very recently by the Court of Appeal in R (C) v Secretary of State for Justice [2008] UKCA Civ 882, a judicial review case brought to challenge the regulations which allowed restraint to be used in Secure Training Centres for the purposes of good behaviour and discipline. In this case, the application was successful and the regulations were quashed for breaching Articles 3 and 8 ECHR, both of which were interpreted by taking account of the CRC.

These are just a handful of cases where the CRC has been used successfully to protect the child’s rights in the prison context. But, the Convention has certainly not proved to be a panacea. Even where it is used by the judiciary as an interpretative tool, it can only extend as far as the child’s rights in domestic law or under the ECHR allow. For example, in R (on the application of DT) v Secretary of State for the Home Department [2004] EWHC 13 a girl was being moved from a Local Authority Secure Children’s Home into an adult female prison because of shortage of space. The judge held that an apparent breach of Article 37(c) CRC was irrelevant here (not least because the UK had derogated from that provision but nonetheless it is not directly enforceable) but that the girls’ article 8 ECHR rights were engaged, and the content of these rights could be interpreted in light of the CRC – though only Article 3 because of the derogation from Article 37(c). Although the judge agreed that her Article 8(1) rights were engaged when she was transferred to an adult prison, the restriction was deemed justifiable under Article 8(2) ECHR. More recently in R (on the application of London Secure Services) v Youth Justice Board [2009] EWHC 2347, a JR challenge was brought against the Youth Justice Board for its decision not to re-commission 28 beds in local authority secure homes (the preferred type of institution from a children’s rights perspective for children detained in the secure estate). The challenge was not successful despite Mr Justice Forbes claiming to take into account the child’s rights under the CRC in determining the content of the relevant ECHR rights.

There appears to be only so much the judiciary can do to protect the child’s CRC rights in youth crime. But, although limited, the willingness of the judiciary to draw on the CRC to interpret the meaning of a child’s rights is particularly crucial given the Conservative Party’s pledge to repeal the Human Rights A
ct
a if they are elected in 2010. If this happens, the rights under the ECHR will no longer be domestically enforceable and the judgements of the European Court of Human Rights will presumably decline in relevance to rights protection in England and Wales. This could have serious implications for children in trouble with the law for three reasons: firstly because the Tory’s motivation for replacing the HRA in part comes from the fears that the Human Rights Act is a ‘criminal’s charter’ – it may be the rights of ‘criminals’ which are thus most restricted in any new bill. Secondly, the ECHR has been an invaluable tool in protecting the rights of children detained in custodial institutions. And thirdly, the justification Lady Hale gave for interpreting the child’s ECHR rights in light of the CRC in the Durham Constabulary case was that this is the approach taken by the European Court of Human Rights.

It is crucial that the CRC is seen as an over-arching and consistent presence that is founded in the UK’s ratification of the Treaty and not in the decisions of the European Court of Human Rights. If so, the English judiciary can continue to interpret a child’s rights in light of the CRC, regardless of the source of those rights – whether it be the ECHR or a domestic bill of rights. Clearly, the reach of such an approach will depend on the particular bill of rights in force but at the least it should help to ensure that the progress made in the interpretation and enforcement of the child’s rights in area of youth crime in the last 5 years is not lost, even if the Human Rights Act is.

Updates on information retention in the UK

Two important decisions have been announced in the UK today regarding the retention of information in the criminal justice area.

Firstly the Court of Appeal has ruled against an information tribunal ruling that data on old minor convictions must be deleted from police computers. The Court found that retaining information for police operational needs was far easier to justify than disclosing the information to others. To this end Lord Justice Waller stated

If the police say rationally and reasonably that convictions, however old or minor, have a value in the work that they do, that should, in effect, be the end of the matter

The case was brought because under the Data Protection Act which requires that information be relevant, up to date and not excessive. Five people had lodged complaints after their records showed up in checks when they applied for jobs. The type of conviction at the heart of the case were minor, and for the most part committed by the people when they were juveniles.

Under the present police policy, criminal records can remain on the national computer for up to 100 years.

The Association of Chief Police Officers welcomed the decision, clearly relieved that the Court of Appeal had decided in favour of retention of even minor data:

This data assists police officers in their work in preventing crime and protecting the public, and the loss of such valuable information would have been detrimental to that.

The issue is now to be subject to a review of the criminal conviction retention policy, to be carried out by an independent adviser following a request by the home secretary.

The second decision is that made by the United Kingdom’s Home Office to abandon its proposals to retain the DNA profiles of innocent people on the national database. In 2007 it had announced its intention to keep the DNA profiles of those arrested ‑ but never convicted of a crime ‑ for between 6 – 12 years, depending on the seriousness of the offence. However, the proposal is not to be included in the policing and crime bill currently going through the British Parliament.

Doubt had already been raised about its viability following the decision of the European Court of Human Rights in the case of S. AND MARPER v. THE UNITED KINGDOM, 4/12/2008, (Applications nos. 30562/04 and 30566/04) in which it held that the schemes for the retention of such samples in the UK is contrary to the right to respect for private life under Article 8 of the European Convention.

As reported today in the Guardian, a Home Office spokesman said:

We have now completed a public consultation on proposals to ensure the right people are on the database as well as considering when people should come off. Those proposals were grounded in the research and allowed us to respond to the judgment of the European court of human rights both swiftly and effectively.
The government will take the most expedient route to address the issue as soon as possible in order to comply with the European court’s judgment.

The decision comes after many felt that the UK government would have faced defeat in the House of Lords if it had kept to its DNA database plan. whilst the home Office spokesperson stated that they hoped to bring forward “further provisions” on DNA retention in the next policing and crime bill it will be interesting to see if the issue is considered significant enough to warrant another outing. Particularly as concern over data storage/privacy in the UK continues to mount.

New ECHR Blog

Antoine Buyse, Utrecht, has just started a new and already very interesting blog dedicated to the ECHR. As far as I know it’s the only blog with a sole focus on issues relating to the Strasbourg Court and the implementation and substance of the Convention making it a very welcome addition to the Blogosphere – ECHR Blog.

High Court suggests Article 8 Protections for Same-Sex Families

The High Court yesterday handed down judgment in a case involving a man who had donated sperm to a lesbian couple on foot of an agreement between them that, while he was to have ‘favoured uncle’ status, he was not to be involved in parenting in any way. Once the baby was born the donor attempted to play a parental role, including by acquiring an injunction to prevent the couple and their child from travelling to Australia for a year. Yesterday Mr Justice John Hedigan held that the man has misled the couple as to his true intentions and had nothing more than a biological connection with the child; the child and his mothers, on the other hand, could be said to constitute a family within the meaning of Article 8, ECHR. Justice Hedigan recommended legislative action in relation to same-sex couples in Ireland including provisions relating to situations where a couple may wish to parent and for one of them to bear a child. The judgment appears not yet to be available online, but the RTE News report is here.

The judgment is significant not only because of its timing (the heads of a proposed Civil Unions Bill are expected to be released shortly), but also because Justice Hedigan’s holding that the couple and their child could enjoy the right to family life under Article 8 is an advancement of the ECtHR’s own jurisprudence on whether same-sex couples with or without children can be regarded as ‘family’ under Article 8.

The Strasbourg court has not yet definitively considered whether a same-sex cohabiting couple constitutes a unit entitled to respect for their family life under Article 8 (although in cases such as Karner v Austria (2003) it has protected same-sex couples under the rubric of privacy). In an earlier decision of the Commission it was held that the relationship between two women and the child of one of them did not constitute family life. In this case, Kerkhoven & Hinkle v Netherlands (1992) the Commission noted that there was no legal impediment to the three living together in the Netherlands but acknowledged that the difficulty lay in the non-biological parent establishing legal links with the child. The Commission acknowledged that such a legal relationship would have important practical implications for the child and non-biological parent, however they felt that the fact that the relationship between the two women did not constitute family life meant that there was no obligation on the state to allow the establishment of such a legal relationship. As Kerkhoven was a Commission decision, as opposed to a decision of the Court, the reasoning is not greatly elaborated upon. In fact little or no justification is offered by the Commission for this conclusion.

Kerkhoven again arose for consideration, however, within the context of X, Y & Z v United Kingdom (1997). This case concerned a family unit comprising a woman, her biological child and a post-operative female-to-male transsexual. The couple had been together since 1979 (just before his gender realignment surgery) and the child was born in 1995 (after the gender-realignment surgery). The child had been born by means of artificial insemination which, after some substantial effort on the part of the couple, had been provided and funded by the National Health Service. X had attempted to be registered as the father of the child on his birth certificate but was informed that only a “biological man” could be so registered. This application claimed that this decision was a breach of the unit’s right to family life, particularly given the practical benefits of such legal recognition of the relationship between X and the child (whose birth certificate was left blank under ‘father’). The Government first claimed that no family life existed between the couple as they were to be regarded as two women living together. The Court considered that X and Y could not be considered as two women living together as they lived, socially, as man and woman and, as a result, apart from the legal prohibition on marrying their relationship was indistinguishable from that between a man and a woman. In the circumstances, and in particular with regard to X’s involvement in the AID process from the beginning and the close and de facto personal ties enjoyed between the three applicants, the Court found that they could be regarded as a unit deserving of protection for their family life. Significantly the Court did not substantially revisit Kerkhoven in this decision, rather it focused on the three together and the social reality of the relationship between the couple. In the end the Court held that there had been no violation of Article 8 by precluding the registration of X as father on he birth certificate because of the transitional stage of the law, the lack of a sophisticated personal identity register system in the UK and the relative unimportance of a birth certificate in legal terms.

These decisions, however, took place against a very different politico-legal background to the one currently in existence in the Council of Europe – nowadays a great number of COE states have some kind of legislative framework concerning the rights of same-sex couples and, in some cases, any children they may be raising and the visibility of same-sex families and ‘gay parenting’ is much increased. In addition, the European Court of Justice (EU) has recently expanded the recognition of same-sex couples, including in the context of pension entitlements, where the partners “live in a union of mutual support and assistance which is formally constituted for life” (Maruko, 1 April 2008). Taking into account the margin of appreciation and the importance in ECHR jurisprudence of the emergence of ‘consensus’ across much of the COE member states, the conclusion that appears to have been reached by Justice Hedigan yesterday would likely now be reached by the Strasbourg Court in an analogous current case.