The European Court of Human Rights
yesterday decided that the UKâ€™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 officerâ€™s with the power to issue an authorization, if s/he thinks it â€œexpedient for the prevention of acts of terrorismâ€ 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 â€œreasonable suspicionâ€ that the individual possesses a â€œprohibited articleâ€ 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 personâ€™s private life. And that even if Article 8 of the convention was relevant the procedure under the 2000 Act was â€œin accordance with the lawâ€ and that it would be â€œimpossible to regard a proper exercise of the power as other than proportionate when seeking to counter the great danger of terrorism.â€
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 â€œentirely 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.â€ The court noted that the elements of coercion were â€œindicative of a deprivation of libertyâ€ 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 â€œdeprivation of libertyâ€.
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 â€œin accordance with lawâ€ finding that the â€œwide discretionâ€ 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 aboundedâ€¦.
The court concluded that there were clear risks of discriminatory use of stop and search powers with the data showing a â€œdisproportionateâ€ impact on black and Asian persons. In relation to the case at hand the court also noted that risk that â€œwidely framedâ€ powers could be â€œmisused against demonstrators and protesters in breach of Article 10 and/or 11 of the Conventionâ€.
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 â€œreasonable suspicionâ€ 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 â€œcheckpointâ€ system set up by the police which saw over 3500 protesters systematically stopped and searched.