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Cite as: [2008] ECHR 521
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FOURTH SECTION
Application no.
4158/05
by Kevin GILLAN and Pennie QUINTON
against the United
Kingdom
lodged on 26 January 2005
STATEMENT OF FACTS
THE FACTS
The applicants, Mr Kevin Gillan and Ms Pennie Quinton are British nationals who were born in 1977 and 1971 respectively and live in London. They are represented before the Court by Mr A. Gask, a lawyer practising in London.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
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 below) for articles concerned in 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 certain papers, which had a connection with the demonstration but no connection with terrorism, 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 photographer's 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 applicants applied for judicial review. They sought to challenge first, the decision of the Assistant Commissioner of the Metropolitan Police to give an authorisation under sections 44(1) and (2) of the 2000 Act in relation to the whole of the Metropolitan District for the period in question, as part of a constant “rolling programme” of such authorisations, and the decision of the Secretary of State to confirm it (see “Domestic Law” section below). It was submitted that Parliament had intended the section 44 power to stop and search randomly, without the need for reasonable grounds of suspicion, to be used in response to an imminent terrorist threat where general police powers to stop and search were inadequate, and that such an authorisation should be limited, both temporally and geographically. Secondly, the applicants challenged the police decision to use the section 44 power against the protesters against the arms fair, since this use was alleged to be contrary to the purpose of the 2000 Act. It was further alleged that the section 44 authorisations and the use of the stop and search power against the applicants constituted a disproportionate interference with their rights under Articles 5, 8, 9, 10 and 11 of the Convention.
On 31 October 2003, the High Court dismissed the application ([2003] EWHC 2545). Lord Justice Brooke, giving the judgment of the court, held, inter alia, in connection with the applicants' contention that the section 44 power had been used arbitrarily by the police, for public order reasons, against those protesting at the arms fair, that there was “just enough evidence available to persuade us that ... the arms fair was an occasion which concerned the police sufficiently to persuade them that the use of section 44 powers was needed”.
The Court of Appeal, on 29 July 2004, made no order on the applicants' claims against the Commissioner of the Metropolitan Police and dismissed the claim against the Secretary of State ([2004] EWCA Civ 1067). It observed, inter alia, that Article 5 § 1 was unlikely to apply, but if it did, any deprivation of liberty was justifiable under Article 5 § 1(b). The respondent Commissioner of the Metropolitan Police had conceded that stop and search amounted to an interference with the applicants' Article 8 rights, and the Court of Appeal agreed. The interference was, however, in accordance with the law. Given the nature of the terrorist threat against the United Kingdom, the authorisation and confirmation of a power to stop and search without reasonable suspicion of wrongdoing could not, as a matter of general principle, be said to be an unacceptable or disproportionate intrusion. However, the inadequacy of the evidence provided by the police concerning the use of the section 44 power in the vicinity of the arms fair made it impossible to come to any conclusion as regards the lawfulness and proportionality of the use of the power against the applicants. Finally, the Court of Appeal held that although the applicants' evidence gave rise to some concern that the section 44 power had been used against them and the other protesters against the arms fair in such a way as to interfere with their rights under Articles 10 and 11 of the Convention, those issues had not really been tested in the proceedings.
The House of Lords, on 8 March 2006, unanimously dismissed the applicants' appeals ([2006] UKHL 12). Lord Bingham, with whom the other Lords agreed, began by observing:
“It is an old and cherished tradition of our country that everyone should be free to go about their business in the streets of the land, confident that they will not be stopped and searched by the police unless reasonably suspected of having committed a criminal offence. So jealously has this tradition been guarded that it has almost become a constitutional principle. But it is not an absolute rule. There are, and have for some years been, statutory exceptions to it. These appeals concern an exception now found in sections 44-47 of the Terrorism Act 2000 ('the 2000 Act'). The appellants challenge the use made of these sections and, in the last resort, the sections themselves. Since any departure from the ordinary rule calls for careful scrutiny, their challenge raises issues of general importance.”
He rejected the applicants' contention that the “rolling programme” of authorisations had been ultra vires, as follows:
“The appellants' second, and main, ground of attack was directed to the succession of authorisations which had had effect throughout the Metropolitan Police District since February 2001, continuing until September 2003. It was, they suggested, one thing to authorise the exercise of an exceptional power to counter a particular and specific threat, but quite another to authorise what was, in effect, a continuous ban throughout the London area. Again this is not an unattractive submission. One can imagine that an authorisation renewed month after month might become the product of a routine bureaucratic exercise and not of the informed consideration which sections 44 and 46 clearly require. But all the authorisations and confirmations relevant to these appeals conformed with the statutory limits on duration and area. Renewal was expressly authorised by section 46(7). The authorisations and confirmations complied with the letter of the statute. The evidence of the Assistant Commissioner and Catherine Byrne does not support, and indeed contradicts, the inference of a routine bureaucratic exercise. It may well be that Parliament, legislating before the events of September 2001, did not envisage a continuous succession of authorisations. But it clearly intended that the section 44 powers should be available to be exercised when a terrorist threat was apprehended which such exercise would help to address, and the pattern of renewals which developed up to September 2003 (it is understood the pattern has since changed) was itself a product of Parliament's principled refusal to confer these exceptional stop and search powers on a continuing, countrywide basis. Reporting on the operation of the 2000 Act during the years 2002 and 2003, Lord Carlile ...found that sections 44 and 45 remained necessary and proportional to the continuing and serious risk of terrorism, and regarded London as 'a special case, having vulnerable assets and relevant residential pockets in almost every borough'.”
On the question whether either applicant had been deprived of liberty as a result of the stop and search procedure, Lord Bingham commented on the absence of any decision of the European Court of Human Rights on closely analogous facts and accepted that there were some features indicative of a deprivation of liberty, such as the coercive nature of the measure, but given that the procedure was very brief, the better view was that Article 5 did not apply. Lord Bingham was, further, 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 into operation. Even if Article 8 did apply, the procedure was in accordance with the law and 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. Finally, although Lord Bingham could conceive of the power to stop and search, if misused, as infringing a person's rights to free expression and assembly, that had not occurred in the applicants' case.
B. Relevant domestic law and practice
1. The Terrorism Act 2000
The 2000 Act was a substantial measure intended to overhaul, modernise and strengthen the law relating to the growing problem of terrorism. “Terrorism” was defined, in section 1, as follows:
“(1) In this Act 'terrorism' means the use or threat of action where -
(a) the action falls within subsection (2),
(b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and
(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.
(2) Action falls within this subsection if it -
(a) involves serious violence against a person,
(b) involves serious damage to property,
(c) endangers a person's life, other than that of the person committing the action,
(d) creates a serious risk to the health or safety of the public or a section of the public, or
(e) is designed seriously to interfere with or seriously to disrupt an electronic system.
(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.
(4) In this section -
(a) 'action' includes action outside the United Kingdom,
(b) a reference to any person or to property is a reference to any person, or to property, wherever situated,
(c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and
(d) 'the government' means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.
(5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.”
Sections 41-43 of the 2000 Act, under the sub-heading “Suspected terrorists”, provide for arrest without warrant, the search of premises and the search of persons by a police officer. In each case there must be reasonable suspicion that the person subject to the arrest or search is a terrorist.
Sections 44-47, under the sub-heading “Power to stop and search”, are not subject to that requirement. These sections provide for a three stage procedure.
The first stage is that of authorisation, which is governed by section 44, which provides as follows:
“(1) An authorisation under this subsection authorises any constable in uniform to stop a vehicle in an area or at a place specified in the authorisation and to search -
(a) the vehicle;
(b) the driver of the vehicle;
(c) a passenger in the vehicle;
(d) anything in or on the vehicle or carried by the driver or a passenger.
(2) An authorisation under this subsection authorises any constable in uniform to stop a pedestrian in an area or at a place specified in the authorisation and to search -
(a) the pedestrian;
(b) anything carried by him.
(3) An authorisation under subsection (1) or (2) may be given only if the person giving it considers it expedient for the prevention of acts of terrorism.
(4) An authorisation may be given -
(a) where the specified area or place is the whole or part of a police area outside Northern Ireland other than one mentioned in paragraph (b) or (c), by a police officer for the area who is of at least the rank of assistant chief constable;
(b) where the specified area or place is the whole or part of the metropolitan police district, by a police officer for the district who is of at least the rank of commander of the metropolitan police;
(c) where the specified area or place is the whole or part of the City of London, by a police officer for the City who is of at least the rank of commander in the City of London police force;
(d) where the specified area or place is the whole or part of Northern Ireland, by a [member of the Police Service of Northern Ireland] who is of at least the rank of assistant chief constable.
(5) If an authorisation is given orally, the person giving it shall confirm it in writing as soon as is reasonably practicable.”
By section 46(1)-(2), an authorisation takes effect when given and expires when it is expressed to expire, but may not be for longer than 28 days.
The second stage is confirmation, governed by section 46(3)-(7). The giver of an authorisation must inform the Secretary of State as soon as is reasonably practicable. If the Secretary of State does not confirm the authorisation within 48 hours of the time when it was given, it then ceases to have effect (without invalidating anything done during the 48-hour period). When confirming an authorisation the Secretary of State may substitute an earlier, but not a later, time of expiry. He may cancel an authorisation with effect from a specified time. Where an authorisation is duly renewed, the same confirmation procedure applies. The Secretary of State may not alter the geographical coverage of an authorisation, but may no doubt withhold his confirmation if he considers the area covered to be too wide.
The third stage involves the exercise of the stop and search power, which is governed by section 45. This provides:
“(1) The power conferred by an authorisation under section 44(1) or (2) -
(a) may be exercised only for the purpose of searching for articles of a kind which could be used in connection with terrorism, and
(b) may be exercised whether or not the constable has grounds for suspecting the presence of articles of that kind.
(2) A constable may seize and retain an article which he discovers in the course of a search by virtue of section 44(1) or (2) and which he reasonably suspects is intended to be used in connection with terrorism.
(3) A constable exercising the power conferred by an authorisation may not require a person to remove any clothing in public except for headgear, footwear, an outer coat, a jacket or gloves.
(4) Where a constable proposes to search a person or vehicle by virtue of section 44(1) or (2) he may detain the person or vehicle for such time as is reasonably required to permit the search to be carried out at or near the place where the person or vehicle is stopped.
(5) Where -
(a) a vehicle or pedestrian is stopped by virtue of section 44(1) or (2), and
(b) the driver of the vehicle or the pedestrian applies for a written statement that the vehicle was stopped, or that he was stopped, by virtue of section 44(1) or (2),
the written statement shall be provided.
(6) An application under subsection (5) must be made within the period of 12 months beginning with the date on which the vehicle or pedestrian was stopped.”
These powers are additional to the other powers conferred on a constable by law (2000 Act, section 114). Section 47 makes it an offence punishable by imprisonment or fine or both to fail to stop when required to do so by a constable, or wilfully to obstruct a constable in the exercise of the power conferred by an authorisation under section 44(1) or (2).
2. The Code of Practice
A Code of Practice was issued by the Secretary of State on 1 April 2003 to guide police officers in the exercise of all statutory powers of stop and search. It was required to be readily available at all police stations for consultation by police officers and was a public document.
The Code required, inter alia, that such powers be “used fairly, responsibly, with respect to people being searched”. It required that the power under section 44 of the 2000 Act “must not be used to stop and search for reasons unconnected with terrorism” and that the power should be used “to search only for articles which could be used for terrorist purposes”. In paragraphs 1.2 and 1.3, the Code provided:
“1.2 The intrusion on the liberty of the person stopped or searched must be brief and detention for the purposes of a search must take place at or near the location of the stop.
1.3 If these fundamental principles are not observed the use of powers to stop and search may be drawn into question. Failure to use the powers in the proper manner reduces their effectiveness. Stop and search can play an important role in the detection and prevention of crime, and using the powers fairly makes them more effective.”
Paragraph 3.5 of the Code provided:
“There is no power to require a person to remove any clothing in public other than an outer coat, jacket or gloves except under section 45(3) of the Terrorism Act 2000 (which empowers a constable conducting a search under section 44(1) or 44(2) of that Act to require a person to remove headgear and footwear in public) ... A search in public of a person's clothing which has not been removed must be restricted to superficial examination of outer garments. This does not, however, prevent an officer from placing his or her hand inside the pockets of the outer clothing, or feeling round the inside of collars, socks and shoes if this is reasonably necessary in the circumstances to look for the object of the search or to remove and examine any item reasonably suspected to be the object of the search. For the same reasons, subject to the restrictions on the removal of headgear, a person's hair may also be searched in public ...”
Certain steps were required by paragraph 3.8 to be taken before the search:
“3.8 Before any search of a detained person or attended vehicle takes place the officer must take reasonable steps to give the person to be searched or in charge of the vehicle the following information:
(a) that they are being detained for the purposes of a search;
(b) the officer's name (except in the case of enquiries linked to the investigation of terrorism, or otherwise where the officer reasonably believes that giving his or her name might put him or her in danger, in which case a warrant or other identification number shall be given) and the name of the police station to which the officer is attached;
(c) the legal search power which is being exercised; and
(d) a clear explanation of;
(i) the purpose of the search in terms of the article or articles for which there is a power to search; ...
(iii) in the case of powers which do not require reasonable suspicion ..., the nature of the power and of any necessary authorisation and the fact that it has been given.”
Officers conducting a search were required by paragraph 3.9 to be in uniform. The Code continued, in paragraphs 3.10-3.11:
“3.10 Before the search takes place the officer must inform the person (or the owner or person in charge of the vehicle that is to be searched) of his or her entitlement to a copy of the record of the search, including his entitlement to a record of the search if an application is made within 12 months, if it is wholly impracticable to make a record at the time. If a record is not made at the time the person should also be told how a copy can be obtained.... The person should also be given information about police powers to stop and search and the individual's rights in these circumstances.
3.11 If the person to be searched, or in charge of a vehicle to be searched, does not appear to understand what is being said, or there is any doubt about the person's ability to understand English, the officer must take reasonable steps to bring information regarding the person's rights and any relevant provisions of this Code to his or her attention. If the person is deaf or cannot understand English and is accompanied by someone, then the officer must try to establish whether that person can interpret or otherwise help the officer to give the required information.”
A record was required to be made at the time or as soon as practicable (paragraph 4.1):
“4.1 An officer who has carried out a search in the exercise of any power to which this Code applies, must make a record of it at the time, unless there are exceptional circumstances which would make this wholly impracticable (e.g. in situations involving public disorder or when the officer's presence is urgently required elsewhere). If a record is not made at the time, the officer must do so as soon as practicable afterwards. There may be situations in which it is not practicable to obtain the information necessary to complete a record, but the officer should make every reasonable effort to do so.”
3. The authorisation to use the section 44 power in London
On 13 August 2003, the Assistant Commissioner of the Metropolitan Police gave an authorisation under sections 44(1) and (2) of the 2000 Act in relation to the whole of the Metropolitan District. The authorisation ran for 28 days until 9 September 2003. It was duly confirmed by the Secretary of State. On 9 September 2003 the Assistant Commissioner gave a further authorisation under the same provisions, again in relation to the whole of the Metropolitan District. This authorisation again ran for 28 days until 6 October 2003. On 11 September 2003, the Secretary of State confirmed the further authorisation under section 46 (4) of the 2000 Act, making no variations to it. This was part of a “rolling programme” of successive authorisations which have been made since the coming into force of sections 44 to 47 of the 2000 Act on 19 February 2001.
COMPLAINTS
The applicants complain that the use of the section 44 power to stop and search each of them breached their rights under Articles 5, 8, 10, 11 and 13 of the Convention.
QUESTIONS TO THE PARTIES