Friday, 15 January 2010

British 'Stop and Search' Powers Knocked Down by European Court

Earlier this week, the European Court of Human Rights ruled that 'stop and search' powers exercised by the police pursuant to anti-terrorism legislation are contrary to the European Convention on Human Rights (Gillan and Quinton v. UK, The Court overturned consistent rulings in the British courts right up to the House of Lords.
The case involved protesters at an arms fair. Here is how the facts are described:

Between 9 and 12 September 2003 there was a Defence Systems and Equipment International Exhibition (“the arms fair”) at the Excel Centre in Docklands, East London, which was the subject of protests and demonstrations.

At about 10.30 a.m. on 9 September 2003 the first applicant was riding a bicycle and carrying a rucksack near the arms fair, on his way to join the demonstration. He was stopped and searched by two police officers who told him he was being searched under section 44 of the Terrorism Act 2000 (“the 2000 Act”: see paragraphs 28-34 below) for articles which could be used in connection with terrorism. He was handed a notice to that effect. The first applicant claimed he was told in response to his question as to why he was being stopped that it was because a lot of protesters were about and the police were concerned that they would cause trouble. Nothing incriminating was found (although computer printouts giving information about the demonstration were seized by the officers) and the first applicant was allowed to go on his way. He was detained for roughly 20 minutes.

At about 1.15 p.m. on 9 September 2003, the second applicant, wearing a jacket, carrying a small bag and holding a camera in her hand, was stopped close to the arms fair. She had apparently emerged from some bushes. The second applicant, a journalist, was in the area to film the protests. She was searched by a police officer from the Metropolitan Police notwithstanding that she showed her press cards to show who she was. She was told to stop filming. The police officer told her that she was using her powers under sections 44 and 45 of the 2000 Act. Nothing incriminating was found and the second applicant was allowed to go on her way. The record of her search showed she was stopped for five minutes but she thought it was more like thirty minutes. She claimed to have felt so intimidated and distressed that she did not feel able to return to the demonstration although it had been her intention to make a documentary or sell footage of it.

The European Court of Human Rights briefly examined the issue from the standpoint of article 5 (arbitrary detention), but in the result it found there had been a violation of article 8 (privacy). The Court said that while in a technical sense the measure was 'in accordance with law', which is the first limb of the test for limitations on the right under article 8, it held that the powers given to individual police were 'neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse' and that therefore, in reality, they were not 'in accordance with law'.