Gillan and Quinton v United Kingdom  ECHR 28 (12 January 2010)
The European Court of Human Rights held that stop and search powers granted to police under the ss 44-47 of the Terrorism Act 2000 (UK) were neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. As such, the Court found the powers not to be ‘in accordance with the law’, in violation of art 8 of the European Convention on Human Rights.
Under ss 44-47 of the Terrorism Act 2000, police in the United Kingdom gained power to stop and search people without any requirement to first form a reasonable suspicion of unlawful behaviour.
The Act empowers certain high ranking police officers to issue authorisations allowing uniformed police to stop and search any person within a defined area in circumstances where the senior officer believes searches to be ‘expedient for the prevention of acts of terrorism’. Whilst there is no requirement to first suspect any wrongdoing, the Act specifies that searches only be performed ‘for articles of a kind which could be used in connection with terrorism’.
Under the Act police are empowered to conduct searches in public. Failure to submit to a search when requested to do so constitutes a criminal offence.
Kevin Gillan and Pennie Quinton are both British nationals who live in London. During September 2003 Mr Gillan and Ms Quinton were stopped and searched by police on their way to a demonstration near an arms fair taking place in East London. A journalist, Ms Quinton was also prohibited by police from filming.
The applicants sought judicial review. In 2003 the High Court dismissed their application. In 2004 the Court of Appeal refused to make any order on the applicants’ claims against the Commissioner of the Police. In 2006 the House of Lords also dismissed the applicants’ appeals. The Law Lords questioned whether a basic search of a person in a street involved such a lack of respect for private life so as to invoke art 8 of the Convention (right to respect for private and family life).
Before the European Court, the applicants protested that the searches to which they were subjected pursuant to s 44 of the Act breached their human rights under arts 5 (right to liberty and security), 8 (above), 10 (freedom of expression) and 11 (freedom of assembly and association) of the European Convention.
Does the basic search of a person in the street interfere with human rights?
The Court held that the search powers under the Act constituted an interference with the right to respect for private life. Further, in a unanimous judgment, the Court held that the public aspect of the searches, including the risk of humiliation and embarrassment which may result should private information be revealed in a public space, could be reasonably considered to exacerbate the significance of the interference. Rejecting submissions by the Government that the searches could be likened to routine searches of air passengers, the Court held that air passengers gave free consent to the searches by electing to travel. The Court considered searches under s 44 to be fundamentally different in that individuals can be searched at any place, at any time, without their consent.
Is any interference 'in accordance with the law'?
The Court held that the extraordinary breadth of power given to police under the Act lacked appropriate legal safeguards capable of protecting individuals against arbitrary interference.
The Court was concerned that there was no requirement under the Act that searches be considered ‘necessary’; rather it was merely required that they be ‘expedient’. The Court considered ‘expedient’ to mean no more than ‘advantageous’ or ‘helpful’. As such, the Court was concerned that there was no requirement of any assessment of the proportionality of the measure.
Further, the authorisation granted by senior police is subject to confirmation by the Secretary of State within 48 hours, valid for 28 days unless an earlier expiry time is substituted, and renewable. The Court noted that whilst the Secretary of State may not alter an authorisation's geographical coverage, she or he may refuse confirmation or substitute an earlier time of expiry, but in practice this had never been done. This was highlighted by the fact that an authorisation covering the Metropolitan Police District had been constantly renewed under a ‘rolling programme’ which commenced when the powers were originally introduced.
The Court also noted that while the exercise of the powers of authorisation and confirmation can be subject to judicial review, the width of the statutory powers is such that applicants will always encounter great difficulty establishing that any authorisation and/or confirmation is ultra vires.
An additional safeguard was intended to be provided by the Independent Reviewer (IR) appointed to oversee the operation of the Act. However, the Court highlighted that the powers of the IR are restricted to reporting on the general operation of the statutory provisions and do not include the right to cancel or amend authorisations, despite the fact that in every report from May 2006 onwards the IR expressed concern that s 44 searches were conducted far too frequently.
Significantly, the Court was struck by a body of evidence which showed extraordinary frequent use of s 44 powers. Further, while the present case did not involve black applicants or those of Asian origin, the risks of the discriminatory use of the powers against such persons was acknowledged and statistics accepted by the Court showed that black and Asian persons were disproportionately affected by the powers.
The Court was also concerned by the significant discretionary power bestowed upon individual police officers. The Court noted that the decision to search is one based exclusively on the ‘hunch’ or ‘professional intuition’ of the individual officer concerned. On this point the Court referred to the earlier decision in this case of Lord Brown in the House of Lords in which His Honour held that the Act ‘radically departs from our traditional understanding of the limits of police power’.
In conclusion, the Court held that the powers of authorisation and confirmation as well as those of stop and search under ss 44 and 45 of the 2000 Act were neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. They were not, therefore, ‘in accordance with the law’, in violation of art 8 of the Convention. Given the violation of art 8 was established, the Court held that it was not necessary to examine the applicants’ complaints under arts 5, 10 and 11.
The applicants were awarded 33,850 euros (EUR) for costs and expenses.
Relevance to the Victorian Charter
This case is relevant to the interpretation of s 13 of the Victorian Charter, which similarly to art 8 of the European Convention enshrines the right to respect for a person’s private life. Further, the case is also relevant to s 21(2) of the Victorian Charter which states that ‘a person must not be subjected to arbitrary arrest or detention’.
The decision is available at http://www.bailii.org/eu/cases/ECHR/2010/28.html.
Perry Wood is a lawyer with Clayton Utz