Police stop and search powers under anti-terrorism legislation in the United Kingdom are too wide and not adequately safeguarded by the law against abuse. So held the European Court of Human Rights in a recent judgment. The case concerned the police power in the United Kingdom under sections 44-47 of the Terrorism Act 2000 to stop and search individuals without reasonable suspicion of wrongdoing. These sections came into force on 19 February 2001.

The applicants in this case, Kevin Gillan and Pennie Quinton, are British nationals. On 9 September 2003 they were both stopped and searched by the police, acting under sections 44-47 of the 2000 Act, while on their way to a demonstration close to an arms fair held in the Docklands area of East London. Mr Gillan was riding a bicycle and carrying a rucksack when stopped and searched by two police officers. Ms Quinton, a journalist, was stopped and searched by a police officer and ordered to stop filming in spite of the fact that she showed her press cards. The applicants applied for judicial review. On 31 October 2003 the High Court dismissed the application. 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. On 8 March 2006 the House of Lords unanimously dismissed the applicants’ appeals. In particular, the Law Lords were 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 on Human Rights 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. In their appeal to the European Court of Human Rights, the applicants complained that the use of the section 44 power to stop and search each of them breached their rights under Articles 5 (right to liberty and security), 8 (right to respect for private and family life), 10 (freedom of expression) and 11 (freedom of assembly and association).

In its unanimous decision, the Court considered that 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. An air traveller may be seen as consenting to such a search by choosing to travel. In the Court’s view, the wide discretion conferred on the police under the 2000 Act, both in terms of the authorisation of the power to stop and search and its application in practice, had not been curbed by adequate legal safeguards so as to offer the individual adequate protection against arbitrary interference. The Court was struck by the statistical and other evidence showing the extent to which police officers resorted to the powers of stop and search under section 44 of the Act – between 2004 and 2008 the total of searches recorded by the Ministry of Justice went from 33,177 to 117,278 – and found that there was a clear risk of arbitrariness in granting such broad discretion to the police officer. While the present case did not concern black applicants or those of Asian origin, the risks of the discriminatory use of the powers against such persons was a very real consideration and the statistics showed that black and Asian persons were disproportionately affected by the powers. There was, furthermore, a risk that such a widely framed power could be misused against demonstrators and protestors in breach of Article 10 and/or 11 of the Convention.

In conclusion, the Court considered that the powers of authorisation and confirmation as well as those of stop and search under sections 44 and 45 of the 2000 Act were neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. They were not, therefore, “in accordance with the law”, in violation of Article 8. Given this finding, the Court held that it was not necessary to examine the applicants’ complaints under Articles 5, 10 and 11. The Court held that the finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage suffered by the applicants. They were awarded 33,850 euros for costs and expenses.

European Court of Human Rights; Gillan and Quinton v. the United Kingdom (application no. 4158/05). Judgment delivered on 12.01 2010, published 15.01.2010.

Last week Lord Justice Jackson unveiled a large scale shake-up of civil litigation costs. After a year-long review into the rocketing costs of bringing legal action in England and Wales, he has made radical proposals that include accident victims paying “success fees” to lawyers out of any compensation they are awarded. The sweeping changes mostly affect the area of personal injury compensation, where, he says, “there is too much money swilling around”.

The Jackson review was set up in late 2008 by the then Master of the Rolls, Lord Clarke, because the senior judiciary were concerned about the escalating costs of civil justice. The report – the first ever fundamental review, specifically focused upon civil costs – sets out a package of interlocking reforms, designed to reduce litigation costs and promote access to justice. The reforms would also assist in allowing for some claims to be resolved earlier with greater use of mediation. He proposes that success fees and after-the-event (ATE) insurance premiums should no longer be paid by the losing party in civil court cases. Winning parties in personal injury cases would benefit from a 10% uplift in their damages award to compensate for such a move. Solicitors’ success fees would be capped at 25% of their clients’ damages award. Lawyers would not be allowed to pay referral fees for personal injury cases. Claims management companies and other intermediaries would see their income reduced if his proposals are implemented. He also proposes fixed costs in fast track litigation and the establishment of a Costs Council.

Speaking at the launch of his report, Lord Justice Jackson said that his measures will not lead to a decrease in fee income for lawyers working on civil cases. Solicitors and barristers will continue to earn a reasonable living, he said, adding that the focus in personal injury cases had shifted away from the compensation of claimants onto the remuneration of lawyers and intermediaries. “Under the current regime, personal injury solicitors are not competing on quality of service or charges to the client, but on who can pay the largest referral fee – so the beneficiaries of the regime are the referrers, like the claims management companies.” He wants solicitors to compete on the basis of offering clients the lowest success fees, rather than relying on payouts from the losing party.

Probably the headline grabbing recommendations, welcomed by the media, relate to libel cases. Libel trials should be heard by judges sitting without juries, and the cost of libel litigation should be substantially reduced. He also proposes an increase in libel damages of 10 per cent. Referring to libel claims, he said: “The main vindication is vindication by the judgment of the court or the statement in court after settlement. I see no reason why such claimants should not be prepared to pay a substantial proportion of the damages to their lawyers as success fees”. He also said that claimants in libel cases have to be protected against the risk of paying out huge costs because usually the claimant in such cases is of modest means and the defendant a well-resourced media organisation. But, he said, the present system and the way it seeks to protect claimants “is the most bizarre and expensive system that it is possible to devise.”

Law Society President, Robert Heslett, said: “We are very pleased that Lord Jackson has accepted the Law Society’s recommendation that the small claims personal injury limit remains as it is. We regard that as a litmus test of Lord Jackson’s commitment to enhancing access to justice through his review”.  Welcoming the report, Lord Judge, the lord chief justice, said the “the costs of civil litigation are disproportionate and excessive…The measures will ensure that civil justice will be more efficient and fairer”.

The final report covers 45 subject areas and runs to 557 pages, with recommendations across the whole spectrum of civil litigation. It is available from The Stationary Office, who advise that the Final Report contains extensive cross-references to the Preliminary Report and the one cannot be read without the other.

This week John Twomey, for the fourth time, is on trial on charges in connection with a robbery at Heathrow airport in 2004. The particular significance of this trial, involving three other defendents at the Royal Courts of Justice, is that, for the first time in some 400 years, a trial on very serious criminal charges is being held without a jury.

The bungled armed robbery of a Menzies World Cargo warehouse in February 2004, in which the four men are alleged to have taken part, has already given rise to three trials at a cost of over £20 million, which is more than ten times the amount stolen. The third trial collapsed after what the judge called a “serious attempt at jury tampering” and led to the application for a judge-only trial. Last March Mr Justice Calvert-Smith concluded that a package of measures to provide jury protection would be sufficient to reduce the risk to an acceptable level. The Court of Appeal disagreed. Even if such steps were taken, the likelihood of tampering was so substantial, the judges said, as to make it necessary for a trial without a jury. The decision that there should be a judge-only trial was made by the Lord Chief Justice and two other judges in an historic ruling which was the subject of blog ‘Trial without Jury’, posted last November. In summary, they held that the two conditions required by s. 44 Criminal Justice Act 2003 were met:-

“…
(4) The first condition is that there is evidence of a real and present danger that jury tampering would take place.

(5) The second condition is that, notwithstanding any steps (including the provision of police protection) which might reasonably be taken to prevent jury tampering, the likelihood that it would take place would be so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury.”

Writing in ‘The Times’, Frances Gibb says that a series of special arrangements and procedures have been devised for the trial because of the absence of a jury. The trial is expected to be far shorter and is listed for three months, whereas the last trial to collapse had already run for six months and reached only the end of the prosecution case. “Mr Justice Treacy will be both judge and jury: he will resolve matters of law and have to do ‘mental gymnastics’, as one barrister put it, if he excludes evidence as inadmissable — trying to put it out of his mind and to pretend he has never seen it”. He will have available before him all the witness statements, whereas juries have no such access. The four defendants are expected to be cross-examined in the usual way but barristers are preparing to adapt their style to take account of the absence of a jury. They will be briefer and less painstaking. At the end, the verdict will be pronounced not by a foreman of the jury but by one judge of the High Court.

In his decision last June Lord Judge took into account the cost of protection for jurors, concluding that “it would be unreasonable to impose that package with its drain on financial resources and police manpower”. Writing in the ‘Guardian’, Marcel Berlins expresses his concerns about “money being a factor in a case in which an accused’s liberty is at stake…the suspicion exists that the right to jury trial will, in future, be increasingly affected by the cost of justice and not its content”.

The right of defendants to consent or refuse a ‘virtual court’ hearing has been removed, leaving the initial decision about whether the case is suitable to proceed in this way to the police.

In a virtual first hearing the defendant appears in the Magistrates’ court by a video link from the police station. The magistrates or District Judge, court staff and prosecutor are at the court in the usual way, with the defence solicitor either at the police station, or at the court. If the solicitor is at the court the defendant may need to provide instructions to their solicitor by phone or video link. Virtual first hearings may take place in respect of any offence. The initial decision to proceed in this way will now be made by the custody sergeant at the police station after the defendant has been charged. The Office of Criminal Justice Reform is conducting a widespread pilot of the virtual first hearing system in London and Kent. From 14 December 2009, the previous requirement that a defendant must consent to participate in a live link hearing, contained in sub-section 57C (7) of the Crime and Disorder Act 1998, has been removed by the Coroners and Justice Act 2009. Therefore the defendant’s consent to appear in court by way of the video link from the police station is no longer required.

The Law Society is concerned this move has come despite the system only being piloted and not independently evaluated. President Robert Heslett said: “The removal of the defendant’s consent means this process will change before we know how effective this type of hearing is. There is an evaluation currently under way, and it would be preferable to await the outcome of that evaluation before major changes are made. The Society has set out our concern that virtual courts may place defendants at a disadvantage in communicating with the court and with their solicitor if the solicitor has to take instructions by telephone or video link to the client.” He also expressed concerns about the physical safety of solicitors in the virtual court hearing room. They will be in close proximity to the defendant who may become aggressive, for example as a result of the court’s decision to remand them into custody.

In an ‘Observer’ article headed “The horror of virtual courts is upon us” Henry Porter wrote that virtual courts seem to save time and money, as well as put an end to the no-show of defendants. But close examination of the procedure shows that it means the defendant’s lawyer cannot be with him or her and in the court at the same time. If the lawyer remains at court, the opportunity to take confidential instructions from their client is almost impossible, but if he goes to the police station he cannot consult with the prosecution and his ability to argue with the magistrates is dramatically reduced. He concluded “It is so easy to be lulled by the Ministry of Justice’s language about ‘secure video links’ and ‘freeing up police time’ and ‘making it easier for victims to see justice being done’, but, as so often under the Labour government, the hard truth is that justice will be the victim”.

And finally, on a different note altogether, may I wish you a happy, healthy and prosperous New Year.