Stop and Search and the Human Rights Boundaries
Police forces rely on powers of stop and search in both the investigation and prevention of crime. Challenges have long been launched against such powers arguing that they are in breach of rights to liberty, private life and, in certain circumstances, expression and assembly. Domestically, such challenges have rarely suceeded but yesterday the European Court of Human Rights, in the case of Gillan and Quintan v. The United Kingdom, ruled that the powers afforded to UK police under the Terrorism Act 2000 were in breach of the applicants human rights.
The applicants in this case, one a student and one a journalist, had been stopped and searched within an hour of each other in September 2003 at a protest outside an arms fair in London. The provisions under which they had been searched were s44 and s45 of the Terrorism Act, which in effect state that once a senior officer in a policing area has issued an authorisation, police officers can conduct random stops and searches of persons for the general purpose of preventing terrorism (as defined in the Act). No suspicion has to be held that the individuals in question possess any items relating to terrorism. These powers are provided in addition to powers to stop and search where suspicion is held (sections 41-43). Since the provisions came into force in 2001 continuous authorisations have been made, and approved by the Secretary of State, for the London Metropolitan Police Area for the maximum period of duration, 28 days. This was not the case in any other city. It was also in spite of annual reports from Lord Carlile that the powers were being used in ‘poor and unnecessary’ ways, they could be used much less and the the Home Office should be refusing to confirm authorisations. At the beginning of 2009 the power was being used between 8,000 and 10,000 times a month.
The House of Lords had held in March 2006 that the provisions did not breach Art 5 of the ECHR given the brevity of the encounter and the individual was not being “detained in the sense of confined or kept in custody, but more properly of being detained in the sense of kept from proceeding or kept waiting” which did not bring Art 5 into play. Lord Bingham identied 11 limitations placed on the power (such as time, place, authorisation, review requirements etc) which to his mind were sufficient to uphold the lawfullness of the provisions under the Convention. The Court also did not accept that the searches fell within the boundaries of Art 8 privacy provisions as the intrusion was not sufficiently serious.
The ECHR held on the issue of Art 5 that for the period they were detained, which did not exceed 30 minutes in either case, ‘the applicants were entirely deprived of any freedom of movement’. Had they attempted to move away they would have been liable to arrest, detention at a police station and criminal charges. The applicants had further argued that the powers were in breach of their rights to privacy as they would have no knowledged of when they could be subjected to a search (unlike at an airport where a traveller purchases a ticket in the knowledge that they will be searched), that a person does not forfeit rights to privacy by taking personal items into a public place like a street, all of which is compounded by the coercive nature of the search which undermines the concept of personal autonomy. On this issue the Court concluded
“the use of coercive powers conferred by the legislation to require and individual to submit to a detailed search of his person, his clothing and his personal belongings amounts to a clear intereference with the right to respect for private life…. the public nature of hte search may, in certain cases, compound the seriousness of the interference because of an element of humiliation and embarrassment. Items such as bags, wallets, notebooks and diaries may, moreover, contain personal information which the owner may feel uncomfortable about having exposed to the view of his companions or the wider public.”
There was, therefore, an infringement of Article 8 of the Convention and the Court proceeded to find that this was not justified in accordance with law: “the safeguards provided… have not been demonstrated to constitute a real curb on the wide powers afforded to the executive so as to offer the individual adequate protection against arbitrary interference.” It is not required at the moment of authorisation that the power be deemed ‘necessary’, there is no requirement of assessing proporationality, the review procedures lack power, and the discretion afforded to the police officer is too broad – he need not hold any suspicions in relation to the person stopped. Considering the documented levels of use, the Court felt there ‘is a clear risk of arbitrariness in the grant (sic) of such a broad discrtion to the police officer’. The risks of racial discrimination are very real and of misuse against demonstrators and protestors, which would be in breach of Articles 10 and 11. In light of the finding of a violation under Article 8, the Court did not consider the allegations under Articles 10 and 11 in this case. The applicants were both awarded costs and £500 each in damages.