Information Note on the Court’s case-law No. 126

January 2010

Gillan and Quinton v. the United Kingdom - 4158/05

Judgment 12.1.2010 [Section IV]

Article 8

Article 8-1

Respect for private life

Power to stop and search individuals without reasonable suspicion of wrongdoing: violation

Facts – Under sections 44-47 of the Terrorism Act 2000 senior police officers may, if they consider it “expedient for the prevention of acts of terrorism”, issue an authorisation permitting any uniformed police officer within a defined geographical area to stop and search pedestrians and vehicles and their occupants. The authorisation must be confirmed by the Secretary of State within forty-eight hours, failing which it will cease to have effect. Authorisation cannot be for longer than twenty-eight days, although that period can be renewed. The powers conferred by the authorisation may be exercised only for the purpose of searching for “articles of a kind which could be used in connection with terrorism”, but the officer concerned is not required to have grounds for “suspecting the presence of articles of that kind”. The officer may request the person being searched to remove headgear, footwear, outer clothing and gloves and, if reasonably necessary, may place his hand inside pockets, feel round the inside of collars, socks and shoes and search hair. Searches take place in public at or near the place where the person is stopped. Failure to submit to a search is an offence punishable by imprisonment or a fine or both. A report by an independent reviewer on the working of the Act is placed before Parliament at least once a year.

The power to stop and search has been in force throughout the Metropolitan Police District (Greater London) ever since the entry into force of the legislation in February 2001 under a “rolling programme” of successive authorisations and confirmations. Between 2004 and 2008 the number of annual searches recorded by the Ministry of Justice steadily increased from 33,177 to 117,278. The independent reviewer has been increasingly critical of the way the power has been used in his most recent reports, citing problems of “poor or unnecessary use” and questioning the need for continued authorisation covering the entire Metropolitan Police District, rather than authorisation confined to “significant locations”.

The applicants in the instant case were stopped and searched by the police in separate incidents while on their way to a demonstration to protest against an arms fair being held nearby. Mr Gillan was riding a bicycle and carrying a rucksack. Ms Quinton, a journalist, was stopped and searched despite showing her press cards. Neither applicant was stopped for more than thirty minutes. The applicants subsequently made an unsuccessful application for judicial review. Sitting as the final appellate court, the House of Lords considered it doubtful whether an ordinary superficial search of the person could be said to show a lack of respect for private life, so as to bring Article 8 of the European Convention into operation and even if it did apply, the stop and search power complied with the lawfulness requirement in the Convention as officers were not free to act arbitrarily. The applicants also brought an action in damages in the county court. Their claim was dismissed and they did not appeal.

Law

(a) Admissibility – The Government had submitted that the applicants had not fully exhausted domestic remedies, as they had not pursued an offer of a closed hearing before the High Court to determine whether the authorisation and its confirmation had been justified and had not appealed against the county court’s judgment. The Court noted, however, that the applicants did not dispute that the stop and search measures used against them complied with the terms of the Terrorism Act. Instead, their complaints focused on the general compatibility of the stop and search powers with the Convention. Accordingly, the remedies identified by the Government would have been neither relevant nor effective in relation to the complaints before the Court.

Conclusion: preliminary objection dismissed (unanimously).

(b) Merits – Article 8: The use of the coercive powers conferred by the anti-terrorism legislation to require an individual to submit to a detailed search of their person, clothing and personal belongings amounted to a clear interference with the right to respect for private life. 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 interference could not be compared to searches of travellers at airports or visitors to public buildings. Air travellers could be seen as consenting to a search by choosing to travel and were free to leave personal items behind or to walk away without being subjected to a search. The search powers under the Terrorism Act were qualitatively different, as individuals could be stopped anywhere and at any time, without notice and without any choice as to whether or not to submit to a search.

As to whether the measure was “in accordance with the law”, it was not disputed that the stop and search powers used in the applicant’s case had a basis in sections 44-47 of the Terrorism Act, combined with the relevant Code of Practice, which was a public document. The question was whether those provisions conferred an unduly wide discretion on the police, both in terms of the authorisation of the power to stop and search and its application in practice. In the Court’s view, it had not been shown that the safeguards provided by domestic law offered adequate protection against arbitrary interference.

Firstly, as regards the authorisation and confirmation stage, the Court noted that senior police officers could authorise the use of stop and search powers if they considered it “expedient” (as opposed to “necessary”) for the prevention of acts of terrorism, so that there was no requirement for the proportionality of the measure to be assessed. Further, while the authorisation was subject to confirmation by the Secretary of State within forty-eight hours, the Secretary of State could not alter the geographical coverage and in practice did not appear ever to have refused confirmation or reduced the duration of the authorisation. The statutory temporal and geographical restrictions on authorisations had failed to act as any real check, as was demonstrated by the fact that the authorisation for the Metropolitan Police District had been continuously renewed in a “rolling programme”. Lastly, there was little prospect of challenging an authorisation: although judicial review was available, the width of the statutory powers was such that applicants faced formidable obstacles in showing that any authorisation and confirmation were ultra vires or an abuse of power, while the independent reviewer’s powers were confined to reporting on the general operation of the statutory provisions and he had no right to cancel or alter authorisations.

As regards the individual police officer’s powers, the breadth of the discretion conferred on him was of still further concern. Although the officer was obliged, in carrying out the search, to comply with the terms of the Code of Practice, the Code essentially governed the mode in which the stop and search was carried out, rather than providing any restriction on the officer’s decision to stop and search. That decision was one based exclusively on the “hunch” or “professional intuition” of the officer concerned. Not only was it unnecessary for him to demonstrate the existence of any reasonable suspicion, he was not required even subjectively to suspect anything about the person stopped and searched. The sole proviso was that the search had to be for the purpose of looking for articles which could be used in connection with terrorism, a very wide category which could cover many articles commonly carried by people in the streets. Provided the person concerned was stopped for the purpose of searching for such articles, the police officer did not even have to have grounds for suspecting their presence.

In this connection, the statistical and other evidence showing the extent to which police officers resorted to the stop and search powers was striking. Noting the large number of searches involved and the reports by the independent reviewer indicating that the powers were being used unnecessarily, the Court found that there was a clear risk of arbitrariness in granting such broad discretion to the police officer. The risk of the discriminatory use of the powers against ethnic minorities was a very real consideration and the statistics showed that black and Asian persons were disproportionately affected. There was also a risk that such a widely framed power could be misused against demonstrators and protestors. Similarly, as had been shown in the applicants’ case, judicial review or an action in damages to challenge the exercise of the stop and search powers by a police officer in an individual case were unlikely to succeed as the absence of any obligation on the part of the officer to show reasonable suspicion made it almost impossible to prove that the powers had been improperly exercised.

In conclusion, neither the powers of authorisation and confirmation, nor the stop and search powers under sections 44 and 45 of the Terrorism Act, were sufficiently circumscribed or subject to adequate legal safeguards against abuse. Accordingly, they were not “in accordance with the law”.

Conclusion: violation (unanimously).

Article 41: Finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage.

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