The blog posted on 23 June 2009 concerned the annual report by Lord Carlile, the government’s official anti-terror law watchdog, about the use of s.44 Terrorism Act 2000, which grants police the power to stop and search anyone in a designated area without suspicion that an offence has occurred. He found that examples of poor or unnecessary use of the section abound. “I have evidence of cases where the person stopped is so obviously far from any known terrorism profile that, realistically, there is not the slightest possibility of him/her being a terrorist” he said. He added that terrorism related powers should be used only for terrorism related purposes, otherwise their credibility is severely damaged.

Another blog, posted on 27 January this year, reported the judgment of the European Court of Human Rights that 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. The Court concluded that the powers of authorisation and confirmation, as well as those of stop and search under ss. 44 and 45, 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.

Now comes another embarrassment for the police service with the revelation that tens of thousands of people have been stopped in the street and searched unlawfully, and it could be that they are all entitled to compensation. Fourteen police forces are urgently trying to find the individuals involved after being told by the Home Office that errors had been found in the way 40 separate stop and search operations were authorised since the powers were introduced in 2001. The Home Office said that in most of the cases authorisations were issued for periods beyond the 28-day statutory limit for each operation or were not signed off by ministers within the statutory 48-hour deadline. The Met and City of London police were responsible for 10 of the 40 illegal operations. Thames Valley police were responsible for six, Sussex five and Greater Manchester three.

Nick Herbert, the police minister, said in a written Commons statement on 10 June that the mistake was discovered after a freedom of information request triggered a review of the Metropolitan police’s s. 44 records, which in turn led to a comprehensive review by the Office for Security and Counter Terrorism. He said: “To summarise these errors, on 33 occasions authorisations were specified to be for 29 days, and two occasions when the authorisations were specified to be for 30 days, whereas the statutory maximum period is 28 days. In addition, there was one further case…where ministerial confirmation for the authorisation was not provided within the statutory 48 hour deadline”. Four other cases were mentioned. He concluded: “I am aware that there is considerable concern about the operation of section 44 stop-and-search powers going beyond these authorisation errors. The Government are committed to a wider review of counter-terrorism legislation, including the operation of the section 44 stop-and-search provisions.”

The latest Home Office statistics show that there were 148,798 stop and searches under section 44 in 2009, 40 % fewer than the previous year.  A total of 688 arrests were made as a result of these searches, an arrest rate of 0.5%.

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.