QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE MAURICE KAY
| THE QUEEN on the application of
|- and –
|COMMISSIONER OF THE POLICE FOR THE METROPOLIS
SECRETARY OF STATE FOR THE HOME DEPARTMENT
John McGuinness QC (instructed by Directorate of Legal Services, Metropolitan Police Service) for the 1st Defendant
Philip Sales, Jonathan Swift & Philip Coppel (instructed by the Treasury Solicitor) for the 2nd Defendant
Hearing date : 2nd October 2003
Crown Copyright ©
Lord Justice Brooke : The is the judgment of the court.
"(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 caused 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 –
(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 …"
"If an authorisation is granted orally, the person giving it shall confirm it in writing as soon as reasonably practicable."
"(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, or 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."
"13. It is for the authorising officer to determine the geographical area in which the use of the powers is to be authorised. In doing so the officer may wish to take into account factors such as the nature and venue of the anticipated incident, the number of people who may be in the immediate area of any possible incident, their access to surrounding areas and the anticipated level of violence. The officer should not set a geographical area which is wider than that he or she believes necessary for the purpose of preventing anticipated violence, the carrying of knives or offensive weapons, acts of terrorism, or, in the case of section 60AA, the prevention of commission of offences. It is particularly important to ensure that constables exercising such powers are fully aware of where they may be used. If the area specified is smaller than the whole force area, the officer giving the authorisation should specify either the streets which form the boundary of the area or a divisional boundary within the force area. If the power is to be used in response to a threat or incident that straddles police force areas, an officer from each of the forces concerned will need to give an authorisation."
The second sentence and nearly the whole of the third sentence have nothing at all to do with section 44 powers.
"2.25 The selection of persons stopped under section 44 of Terrorism Act 2000 should reflect an objective assessment of the threat posed by the various terrorist groups active in Great Britain. The powers must not be used to stop and search for reasons unconnected with terrorism. Officers must take particular care not to discriminate against members of minority ethnic groups in the exercise of these powers. There may be circumstances, however, where it is appropriate for officers to take account of a person's ethnic origin in selecting persons to be stopped in response to a specific terrorist threat (for example, some international terrorist groups are associated with particular ethnic identities). [See Notes 12 and 13]."
"As to usage, the figures show that the power has been used with great discretion. The requirement for authorisation by a very senior police officer is an important control mechanism. A number of requests have been turned down. That is reassuring. The police are very sensitive to the damage which would be done if there were ever any grounds for suspecting that the power was being used as anything other than a counter-terrorism measure."
"No difficulties have been drawn to my attention in relation to the exercise of these powers. They were used extensively in 2001. I have examined the full list of such authorisations, which have been deployed in almost every police authority area in Great Britain. It would not be in the public interest to provide details of the reasons and events. I am satisfied that their use works well and is used to protect the public interest, institutions, and in the cause of public safety and the security of the state. I have been able to scrutinise the documentation used for Section 44 authorisations. It is designed to limit inconvenience to the general public, and to ensure that no authorisation is given without detailed and documented reasons.
(i) The use of a section 44 authorisation to stop and search Mr Gillan and other peace protestors was contrary to the purpose of the 2000 Act and unlawful;
(ii) From all the surrounding circumstances, it is clear that either
(a) there was no guidance given to Metropolitan police officers (and in particular those officers who were policing the arms exhibition at the Excel Centre) as to how they should use their Section 44 and Section 45 powers, or
(b) they were given guidance that was calculated to cause the officers to use these powers in an unlawful manner;
(iii) Alternatively, the instructions given to Metropolitan police officers were inadequate or misleading as a matter of law.
"The officers involved were required when selecting the claimant for a stop and search to assess objectively the threat posed by those terrorist groups active in Great Britain (see paragraph 2.25 of Code A). It is submitted they exercised their discretion in a manner that thwarted the purpose of counter-terrorism legislation."
"The guidance given to officers is that these powers should not be used to stop and search for reasons unconnected with terrorism."
"Liberty firmly believes that this case raises important civil liberties and human rights issues. It appears that a very significant power that has been granted to the police for this specific purpose of combating acts of terrorism is being put to a much wider use for the purpose of curtailing the rights of individuals to peaceful protest. We are concerned not only with the impact this use has on actual protesters, but also about what we believe to be the intimidatory effect this is having on individuals who might have decided to protest but decide against doing so because of concerns about the powers that will be wrongfully applied against them."
"S 44(1) and s 44(2) Powers under the Terrorism Act 2000 have been re-authorised throughout the MPD until … (insert date as appropriate)."
"… I was flagged down by two police officers, both of whom were male.
The first police officer informed me that he wanted to search me. I asked why, and was told that it was because there were lots of protesters around and the police were concerned they would cause trouble.
The same police officer asked me where I was going. I co-operated fully …
The first police officer then made a thorough search of my rucksack. The rucksack contained some spare clothes … a sandwich, a notepad and some papers. Certain of these papers were printouts from a protest website giving details of the demonstrations and where they were taking place, which I explained to the officer. He confiscated these documents after checking with base about whether they were aware of the website. I was permitted to write down the information I needed from these papers before they were taken from me …
I originally told the police officers that I would prefer not to have given them my details. They responded that I had a right not to do so but that my refusal to provide the information would arouse their suspicions and could lead to my arrest at which point they would be entitled to demand my details. I then agreed to provide them with my name and address."
"Grounds: Articles concerned with Terrorism.
Object: Terrorism Act s44. Stopped in area near the Excel Centre.
Stated he is involved in protests."
"We've been using the power very sparingly on the outskirts of the conference centre here. The primary powers we're using are the usual criminal powers and that's what we've used to arrest 100 of the 102 people who've been arrested so far. But you've got to remember this is an area with Canary Wharf, with London City Airport and this big military exhibition behind me and that is a possible terrorist target and given the anniversary of 9/11, given the substantial threat against the capital at the moment, we will have to use Terrorism stop and search powers as appropriate.
I can't comment on whether (the people stopped during the day) were stopped under that particular Act (Terrorism Act) because we've reminded our officers that the powers are to be used extremely sparingly and only in appropriate circumstances and that briefing has been given out yet again today.
If there are specific incidences of the misuse of that Act then obviously we will have to look into that. But we've issued the briefing to our officers today. We're looking very closely at the stop and search returns to see if they have been used when they should not have been. If they have been we will look into it.
Here we are in the docklands … a target of terrorism in the past. London City Airport, the military exhibition is here. London is on a high state of alert. The anniversary of 9/11 is tomorrow. I think it would be remiss of us to fail to take into account the terrorist threat to such an event and to the whole of the capital at the moment."
"Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole … [I]f the Minister, by reason of having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy of the objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court."
For "Minister" read "police" in the present context.
"Applying the Daly proportionality test to this case, it is accepted the legislative purpose, namely the prevention of acts of terrorism, can in appropriate circumstances be sufficiently important to justify the interference with fundamental rights. However, it is submitted that neither the authorisations nor the exercise of powers under them against peace protesters and at least one journalist are rationally connected to combating terrorism in that they were not in response to any specific threat but were rather in response to fears of terrorism triggered by the UK's actions internationally (particularly in Northern Ireland and the Middle East). There was insufficient material before the Defendants to justify the giving or confirming of either authorisation.
Furthermore, the terms of the authorisations (ie for the maximum permissible duration of 28 days and applicable throughout the Metropolitan Police District) and the interference with the Convention rights of citizens caused by stopping and searching under the authorisations were significantly more than necessary to accomplish the legislative purpose. It cannot be proportionate to allow the use of an emergency power as if it were a normal power available to officers as part of day-to-day policing on the streets of London."