QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE McCOMBE
| DAVID THOMAS JAMES HOWARTH
|- and -
|COMMISSIONER OF POLICE OF THE METROPOLIS
Dijen Basu (instructed by Directorate of Legal Services, New Scotland Yard) for the Defendant
Hearing date: 7 October 2011
Crown Copyright ©
Mr Justice McCombe:
(B) The Facts
"Ready yourself for a day at the office, trading floor, well or refinery. Come dressed as a banker, oil worker/prospector, or just in a boiler suit etc. With the tools of your trade…brief cases, office furniture, drilling equipment, hard hats, oil (molasses/treacle), symbolic (!) chains, bags or wads of money etc…"
"Protestors are in possession of large amounts of chalk being carried in suitcases. Particularly large amount, not known the impact of intended target. It can reasonably be having articles with intent to destroy and damage property at the oil refinery." [sic]
Supt. Pendry states that she cannot recall the precise nature of the intelligence which identified protestors as being in possession of chalk but she believes that she may have received a telephone call imparting that information. She goes on to say in her witness statement,
"As a result of this intelligence I directed CI McGinley to search the protestors on the train. In giving him this direction I made him fully aware of the nature of the intelligence so that he could satisfy himself that there were reasonable grounds to carry out the searches. The nature of the intelligence was that it related to the group of protestors and not identifiable individuals…[I]t was only at 1155 am once I had been aware that the protestors were in possession of chalk, that I gave the direction that they should be searched. "
"Superintendent Pendry informed me that she had grounds to support any search and would justify these."
In his own log, CI McGinley noted as follows:
"Train held in station for short time info from SX [Silver Commander] that the group have articles to be used in connection with criminal damage. SX will be able to justify the supporting grounds. Officers are to be mindful that police are not looking for items such as D locks or lock-on equipment that might be used for non-violent direct action. We are looking for items such as molasses, details provided at intel briefing earlier. Confirmed couple of minutes after with silver runner that the intel relates to group not identified individuals and there is supporting grounds to do this lawfully."
DC McGinley states that at 1157 the relevant officers were briefed at the station. He goes on to say specifically that he did not give a direction to search all people on the train. The officers were informed that protestors were equipped with articles to be used in the commission of criminal damage, such as molasses. He does not recall mentioning chalk, although two of his officers state that they were aware that chalk was to be looked for. He informed the team that the intelligence related to the protestors as a group and not to identifiable individuals. Inspector Bethel of the Metropolitan Police was in direct charge of the relevant officers who boarded the train and he noted from his briefing by CI McGinley the following:
"Stop and search protestors on train. Info from SX. Persons likely to be in possession of molasses and other articles for use in crim dam. Search for articles for use in causing criminal damage…".
"Identified as part of a group believed to be carrying articles in relation to criminal damage travelling on the train".
(C) The Claims
(D) PACE/ECHR and the arguments in outline
"(2) Subject to subsection (3) to (5) below, a constable –
(a) may search –
(i) any person …
for…prohibited articles… and
(b) may detain a person…for the purpose of such a search.
(3) This section does not give a constable power to search a person…unless he has reasonable grounds for suspecting that he will find…prohibited articles…
(7) An article is prohibited for the purposes of this Part of this Act if it is –…
(b) an article –
(i) made or adapted for use in the course of or in connection with an offence to which this paragraph applies; or
(ii) intended by the person having it with him for such use by him or by some other person.
(8) The offences to which subsection (7)(b)(i) above applies are-…
(e) offences under section 1 of the Criminal Damage Act 1971 (destroying or damaging property)."
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom of others."
Article 10 is in these terms:
"Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
Finally, Article 11 provides:
"1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society, in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State."
"Where there is reliable information or intelligence that members of a group or gang habitually carry knives unlawfully or weapons or controlled drugs, and wear a distinctive item of clothing or other means of identification to indicate their membership of the group or gang, that distinctive item of clothing or other means of identification may provide reasonable grounds to stop and search a person."
"For obvious practical reasons police officers must be able to rely upon each other in taking decisions as to whom to arrest or where to search and in what circumstances. The statutory power does not require that the constable who exercises the power must be in possession of all the information which has led to a decision, perhaps taken by others, that the time has come for it to be exercised. What it does require is that the constable who exercises the power must first have equipped himself with sufficient information so that he has reasonable cause to suspect before the power is exercised."
"1. Did the arresting officer suspect that the person who was arrested was guilty of the offence? The answer to this question depends entirely on the findings of fact as to the officer's state of mind.
2. Assuming the officer had the necessary suspicion, was there reasonable cause for suspicion? This is a purely objective requirement to be determined by the judge if necessary on the facts found by a jury.
3. If the answer to the two previous questions is in the affirmative, then the officer has a discretion which entitles him to make an arrest and in relation to that discretion has been exercised in accordance with the principles laid down by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation  1 KB 223."
"The claimants contended that the exercise of the section 45 stop and search power necessarily involves the interference with the exercise of the article 8(1) right, and therefore had to be justified under article 8(2). The defendants did not accept that there would necessarily be such interference, but accepted that there might, as where (for instance) an officer in the course of a search perused an address book, or diary, or correspondence. I have no doubt but that the defendants' concession is rightly made. I am, however, doubtful whether an ordinary superficial search of the person can be said to show a lack of respect for private life. It is true that "private life" has been generously construed to embrace wide rights to personal autonomy. But it is clear Convention jurisprudence that intrusions must reach a certain level of seriousness to engage the operation of the Convention, which is, after all, concerned with human rights and fundamental freedoms, and I incline to the view that an ordinary superficial search of the person and an opening of bags, of the kind to which passengers uncomplainingly submit at airports, for example, can scarcely be said to reach that level."
This passage contrasts starkly with the judgment of the European Court of Human Rights in the same case at paragraphs 63 and 64 where the Court said,
"63. The government argues that in certain circumstances a particularly intrusive search may amount to an interference with an individual's art.8 rights, as may a search which involves perusing an address book or diary or correspondence, but that a superficial search which does not involve the discovery of such items does not do so. The Court is unable to accept this view. Irrespective of whether in any particular case correspondence or diaries or other private documents are discovered and read or other intimate items are revealed in the search, the Court considers that the use of coercive powers conferred by the legislation to require an individual to submit to a detailed search of his person, his clothing and his personal belongings amounts to a clear interference with the right to respect for private life. Although the search is undertaken in public place, this does not mean that art.8 is inapplicable. Indeed, in the Courts view, the public nature of the search may, in certain cases compound the seriousness of the interference because of an element of humiliation and embarrassment. Items such as bags, wallets, notebooks and diaries may, moreover, contain personal information which the owner may feel uncomfortable about having exposed to the view of his wider companions or the wider public.
64. The Court is also unpersuaded by the analogy drawn with the search of to which passengers uncomplainingly submit at airports or at the entrance of a public building. It does not need to decide whether the search of the person and of his bags in such circumstances amounts to an interference with an individual art.8 rights, albeit one which is clearly justified on security grounds, since for the reasons given by the applicants the situations cannot be compared. An air traveller may be seen as consenting to such a search by choosing to travel. He knows that he and his bags are liable to be searched before boarding the aeroplane and has a freedom of choice, since he can leave personal items behind and walk away without being subjected to a search. The search powers under s.44 are qualitatively different. The individual can be stopped anywhere and at any time, without notice and without any choice as to whether or not to submit to a search."
"The approach of the English common law to freedom of expression and assembly was hesitant and negative, permitting that which was not prohibited. Thus although Dicey in An Introduction to the Study of the law of the Constitution, 10th ed (19590, in Part ii on the "Rule of Law", included chapters VI and VII entitled "The Right to Freedom and Discussion" and "The Right of Public Meeting", he wrote of the first, at pp 239-240, that "at no time has there in England been any proclamation of the right to liberty of thought or to freedom of speech" and of the second, at p 271, that "it can hardly be said that our constitution knows of such a thing as any specific right of public meeting". Lord Hewart CJ reflected the then current orthodoxy when he observed in Duncan v Jones  1 KB 218, 222, that "English law does not recognise any special right of public meeting for political or other purposes." The Human Rights Act 1998, giving domestic effect to articles 10 and 11 of the European Convention, represented what Sedley LJ in Redmond-Bate v Director of Public Prosecutions163 JP 789, 795, aptly called a "constitutional shift."
Article 10 confers a right to freedom of expression and article 11 to freedom of peaceful assembly. Neither right is absolute. The exercise of these rights may be restricted if the restriction is prescribed by law, necessary in a democratic society and directed to any one of a number of specified ends.
The Strasbourg court has recognised that exercise of the right to freedom of assembly and exercise of the right to free expression are often, in practice, closely associated: see, for example, Ezelin v France (1991) 14 EHRR 362, paras 37, 51; Djavit An v Turkey reports of Judgments and Decisions, 2003-III, p 231, para 39; Christian Democratic People's Party v Moldova (Application No 28793/02) (unreported) 14 May 2006, para 62; Ollinger v Austria (Application No 76900/01) (unreported) 29 June 2006, para 38. The fundamental importance of these rights has been stressed. Thus in Steel v Untied Kingdom 28 EHHR 603, para 101, freedom of expression was said to constitute: " an essential foundation of democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment." In Ezelin v France, para 53, the court considered
That the freedom to take part in a peaceful assembly-in this instance a demonstration that had not been prohibited-is of such importance that it cannot be restricted in any way, even for an avocat, so long as the person concerned does not himself commit any reprehensible act on such an occasion."
Moreover, Lord Bingham went on to cite Ziliberberg v Moldova (Application No. 61821/00) where the European Court added that an individual does not cease to enjoy the right to peaceful assembly as a result of sporadic violence or other punishable acts committed by others in the course of a demonstration. Any prior restraint on freedom of expression "calls for the most careful scrutiny": Sunday Times v United Kingdom (No. 2) (1991) 14 EHRR 229, paragraph 51 and Hashman & anor. v United Kingdom (1999) 30 EHRR 241, paragraph 32.
Lady Justice Hallett: