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.

Lord Lester condemns British Government’s Human Rights record

UCC Faculty of Law Adjunct Professor Lord Lester of Herne QC has revealed that he quit as Prime Minister Gordon Brown’s advisor on constitutional reform last month because of the British Government’s “dismal” lack of leadership on human rights. Described at the time of his appointment as an “eminent outsider” brought into “the government of all talents” his position was clearly not a comfortable one.

In a speech marking 60 years of the Universal Declaration of Human Rights Lord Lester revealed that he had felt “tethered” by the government and described its human rights record as “dismal and deeply disappointing”. He singled out the Justice Secretary Jack Straw for particular criticism for both a failure to defend the Human Rights Act and the lack of radical constitutional reform. The criticism of Jack Straw comes on the back of the Justice Secretary’s comments in the Daily Mail pledging to “reform the ‘villain’s charter’” (the Human Rights Act).
Lord Lester stated that

“In spite of its achievement in introducing the Human Rights Act, the government has a deeply disappointing record in giving effect to the values underpinning the Human Rights Act in its policies and practices. Through a lack of political leadership, it has also failed to match the expectations raised by the Governance of Britain green paper for much-needed constitutional reform.”

And he criticised the government’s failures to fight for human rights in relation to a wide range of human rights issues:

“The government could have celebrated Human Rights Day by defending the Human Rights Act against unfair attack. It could have celebrated by accepting the recommendations of the UN human rights treaty bodies, the joint committee on human rights and NGOs to allow the people of this country to exercise the right of individual petition against the government under the international covenant on civil and political rights, the convention for the elimination of all forms of racial discrimination, and the torture convention.
“The UK is alone in the European Union in refusing to do so in the case of the international covenant. And the government is judge in its own, rather than in the people’s cause, in shielding itself in this way.”

Many human rights activists and organisations have voiced their support and understanding for Lord Lester’s position. Amnesty International issued a statement saying that they sympathised with his position and were “disappointed by the antagonism towards human rights coming from the government.” The proposed 42 day detention period and the treatment of asylum seekers were singled out by Amnesty as causing particular concern.