Bribery and corruption, as a subject, is much in the air at the moment with the current focus on betting scams in cricket and other sports. So it is perhaps appropriate that legislation is set for a radical change when the Bribery Act 2010, which received Royal Assent in April as one of the last pieces of business by the previous government, comes into force on 1 October.

The new Act is widely seen as a response to the BAE Systems case, where the prosecution against the defence company was dropped after the intervention of Lord Goldsmith, then attorney general. Earlier this year, BAE agreed to pay £300m in fines after signing up to a plea bargain with Britain’s Serious Fraud Office and the US department of justice. But the case has had a long-term impact on Britain’s reputation as its position in the international “corruption index” has slipped to 17th, behind Japan, Hong Kong and Austria. A survey in 2006 by Control Risks, a consultancy, estimated that a quarter of UK-based international companies have lost business to corrupt competitors in recent years, while figures from the World Bank suggest that bribery adds up to 10% to the total cost of doing business globally.

The Act is intended to make it significantly easier for enforcement agencies to bring successful prosecutions, including against UK corporate entities, in respect of corruption offences committed at home and abroad. The Act introduces four new statutory offences – giving or receiving bribes, bribery of foreign public officials and failure of a commercial organisation to prevent bribery by persons working on their behalf. This last offence is entirely new and is a strict liability offence. The Act will have a considerable impact on foreign companies who do business in the UK, particularly those which have a place of business in the UK and/or UK employees. It is not limited to acts of bribery committed in the UK by British citizens or commercial organisations. It extends to acts committed anywhere in the world by UK corporates or individuals if the act of bribery would amount to an offence in the UK.

Penalties for individuals under the Act will be more severe than they are at present. The maximum term of imprisonment is increased from seven to ten years, in line with other fraud offences. There is also the prospect of an unlimited fine for individuals or commercial organisations convicted of the two general bribery offences or the offence of bribing a foreign public official and for organisations convicted of the offence of failure to prevent bribery. The only defence to a corporate entity’s liability for bribery committed by an individual acting on its behalf is that “adequate procedures” designed to prevent bribery are in place. The Secretary of State will issue guidance as to what “adequate procedures” are.

The current laws, contained in a combination of statutes dating back to the 19th Century and the common law, will be abolished when the new Act is brought into force. The Act, however, does not have retrospective effect so will apply only to offences committed after it comes into force. In the meantime the old bribery laws will have continuing relevance.

The full text of Bribery Act 2010 can be found at:                       

http://www.legislation.gov.uk/ukpga/2010/23/contents

Explanatory Notes are at:

http://www.legislation.gov.uk/ukpga/2010/23/pdfs/ukpgaen_20100023_en.pdf

One of the more surprising pledges in the Coalition programme for government was to extend anonymity in rape cases to defendants. Such a move would turn the clock back to 1976, when the Sexual Offences Act introduced anonymity for those accused of rape. That provision was repealed in 1988. Shortly after the Coalition pledge, which provoked a storm of adverse publicity, deputy prime minister Nick Clegg signalled a willingness to drop the government’s plans when he told Parliament: “I want to make it clear that, although the Government have proposed the idea, we want to listen to everybody who has a stake or expertise in or insight into the matter. If our idea does not withstand sincere scrutiny, we will of course be prepared to change it.”

Now it would seem that the government has abandoned these plans. When asked in the Commons last week if he will conduct a public consultation on whether to grant anonymity to defendants in rape cases, justice minister Crispin Blunt said: “The Government are minded to strengthen anonymity before charge. We want to hear the views of those who may have any new evidence to assist our deliberations, and we will bring our conclusions to Parliament in the autumn.” However, he went on to say: “Since the principal points of judgment around the issue are clear and very narrow…the Government do not propose to manage a full, formal public consultation.” Crucially he added: “We want in the first instance to try to find a non-statutory solution, and given that we had 21 Criminal Justice Acts passed over the 13 years of the last Administration, I am sure that Labour Members will understand why we are loath to find even more statutes to put on the statute book.”

Instead the government will negotiate with the Press Complaints Commission to persuade newspapers and websites to grant anonymity to suspects. “It was agreed on both sides of the House when the Sexual Offences Act 2003 went through Parliament that all people charged with offences ought to have their identity protected until the point of charge. That is the guidance that the Press Complaints Commission put into effect in 2004.” He added that there is an issue around the strength of that guidance which required attention. According to the ‘Guardian’, Government sources said the minister had not performed a U-turn because ministers had not committed themselves to changing the law. Ministers are still committed to granting anonymity to suspects between arrest and charge and believe that a change in the PCC code is the best way of achieving this.

Home Secretary Theresa May told Parliament yesterday that the government will change how stop and search powers under section 44 of the Terrorism Act are used, with immediate effect.

The move is in response to a decision by the European Court of Human Rights,  which found that the use of stop and search powers under section 44 of the Terrorism Act 2000  amounted to a  violation of the right to a private life. The court said the powers were drawn too broadly at the time of their initial authorisation and did not have enough safeguards to protect civil liberties. The Home Secretary told the House of Commons: “I will not allow the continued use of section 44 in contravention of the European Court’s ruling and, more importantly, in contravention of the civil liberties of every one of us.” She added that the new government had been concerned about the use of section 44 powers for some time. The changes are designed to comply with the Strasbourg ruling and provide clarity for the police before a review of all counterterrorism legislation this summer. The terms of reference for the review are expected to be announced next week.

The Home Secretary has sought urgent legal advice and consulted police forces, and interim guidance for the police has been introduced which sets a new suspicion threshold. Officers will no longer be able to search individuals using section 44 powers. Instead they will have to rely on section 43 powers, which require officers to reasonably suspect the person to be a terrorist. Police may search only vehicles under section 44 of the law, and then only if they have reasonable suspicion of terrorist activity. The changes will bring the operation of counter-terrorism use of stop and search powers fully into line with the European Court’s judgment. Theresa May concluded: “The first duty of government is to protect the public. But that duty must never be used as a reason to ride roughshod over our civil liberties. I believe that the interim proposals I have set out today give the police the support they need and protect those ancient rights.”

In reply, Alan Johnson, the former Labour Home Secretary, said he was ‘amazed’ that his successor had not tried to appeal against the Strasbourg ruling. He went on to say: “I am deeply concerned about the Home Secretary’s intention to restrict section 44 powers to searches of vehicles. That quite clearly restricts the powers of the police.” But Lord Carlile, the government’s independent reviewer of anti-terror legislation, speaking on BBC’s ‘World at One’ yesterday, said section 44 had been ineffective in combating terrorism, had caused community tensions and was used arbitrarily and for incorrect purposes. He added: “You don’t have to search people to discourage terrorists, the evident availability of police officers in the area, obvious uniformed policing, is just as much of a deterrent.” And Shami Chakrabarti, director of the human rights group Liberty, said: “Liberty welcomes the end of the infamous section 44 stop and search power that criminalised and alienated more people than it ever protected. We argued against it for ten years and spent the last seven challenging it all the way to the Court of Human Rights. It is a blanket and secretive power that has been used against school kids, journalists, peace protesters and a disproportionate number of young black men. To our knowledge, it has never helped catch a single terrorist. This is a very important day for personal privacy, rights to protest and race equality in Britain.”

The Ministry of Justice have announced plans to close 157 magistrates and county courts in England and Wales, at a saving of £36.8m.

In a written statement to the Commons on 23 June, Secretary of State Kenneth Clarke said that Her Majesty’s Courts Service (HMCS) currently operates out of 530 courts, some of which do not fit the needs of modern communities. Their number and location do not reflect recent changes in population, workload or transport and communication links over the years since they were originally opened. Consultation papers have been published setting out proposals to close 103 magistrates courts and 54 county courts and inviting views on how best to provide local justice services in communities across England and Wales. He said: “In reaching decisions on closures I will ensure that we keep courts in the most strategically important locations, communities continue to have access to courts within a reasonable travelling distance, that cases are heard in courts with suitable facilities and that there is an overall reduction in cost.” Closure of the courts covered in the consultation would achieve running cost savings of around £15.3 million per year. These courts also have backlog maintenance of around £21.5 million, costs that can be avoided if the closures go ahead. “I believe that as well as savings to HMCS there will also be savings for other criminal justice agencies by focusing their attendance at a single accessible location within a community.”
 
The Secretary of State added that current arrangements are historical and now need to be reassessed to see if they meet the needs of today’s society. Modern communications and greater transport facilities mean that providing access to justice does not require a courthouse in every town or city. He said that, across the civil and criminal courts, there are great opportunities to harness technology more effectively so people do not necessarily have to physically attend court when they give evidence or access court services. Not all disputes need to be resolved in court. “I will also examine ways of enabling more people to resolve their disputes in a way that leads to faster and more satisfactory solutions. We will continue to develop proposals for introducing alternatives that deliver a better service for less money.”

Courts Minister Jonathan Djanogly said: ‘The Lord Chancellor and I are keen to hear the views of everyone with an interest in local justice arrangements. He will take all views into account before making any decision on which courts ought to be closed and when. As well as consulting on the courts we need today I want to begin a conversation about how the courts service could be modernised to improve the justice system as well as reduce its costs.”
The closing date for consultation responses is 15 September 2010. The full list of courts threatened with closure, together with links to the consultation documents, can be found at:

http://www.justice.gov.uk/news/announcement230610a.htm

One of the more surprising pledges in the Coalition programme for government was: “We will extend anonymity in rape cases to defendants.” This move would turn the clock back to 1976, when the Sexual Offences Act introduced anonymity for those accused of rape. The provision was later repealed.

 This proposal has produced a storm of adverse publicity. Granting anonymity to defendants accused of rape could lead to serial attackers slipping through the net, campaigners, victims and lawyers have warned. Women who had not previously had the confidence to report a rape were often inspired to do so after seeing media reports naming and picturing the same man. Ruth Hall, a spokeswoman for Women against Rape, said that the proposal could put women off coming forward to report rapes, hitting the already low conviction rate. Concern has been expressed that the proposal, intended to protect men from the damaging impact of false allegations, gave the impression that women frequently lie about rape. Baroness Stern, in her review of rape (see blog posted on 25 March), said that the subject of false allegations came up so often in discussions about rape, and the information about the prevalence of false allegations is so scanty, that research should be undertaken to establish their frequency before any view was reached on anonymity for defendants. As reported in the ‘Guardian’, Labour peer Helena Kennedy QC said the naming of accused rapists helped police investigations. “People who commit crimes like rape and serious crimes of violence, particularly sexually motivated ones, are often repeat offenders,” she said. “What the police will tell you is that very often the exposure of the identity of the accused brings forward other people.”

Speaking in the adjournment debate in the House of Commons on 7 June, Caroline Flint said: “Those proposals, if implemented, would deter victims from coming forward and make it far more difficult for the police to charge offenders and convict rapists. We know that many rapists are serial offenders; their trail of victims often runs into double digits. Many women – for a variety of reasons – do not come forward straight away. They are afraid; they want to pretend it never happened. They are embarrassed; they feel as though they did something wrong. They are ashamed; they believe that what happened was their fault. They feel alone.” She will have been aware that she was pressing on a door which, if not open, was certainly not locked. Earlier in the day, also in the Commons, Deputy Prime Minister Nick Clegg signalled a new willingness to drop the government’s plans. He said: “Everybody is united in wanting the conviction rates for rape to increase. Everybody wants more support to be provided to victims of rape so that they come forward in the first place, while also wanting to minimise the stigma attached to those who might be falsely accused. However, I want to make it clear that, although the Government have proposed the idea, we want to listen to everybody who has a stake or expertise in or insight into the matter. If our idea does not withstand sincere scrutiny, we will of course be prepared to change it.”

“The importance of civil trials being fair, the procedures of the court being simple, and the rules of court being clear are all of cardinal importance. It would, in our view, be wrong for judges to introduce into ordinary civil trials a procedure which…cuts across absolutely fundamental principles (the right to a fair trial and the right to know the reasons for the outcome), initially hard fought for and now well established for over three centuries”. So said the court of appeal in their concluding remarks when they dismissed an attempt by MI5 and MI6 to suppress evidence of complicity in torture in respect of British residents held at Guantanamo Bay.

Binyam Mohamed and five former prisoners are claiming damages against the Government for alleged complicity in torture and extraordinary rendition. The Government and security services wanted to use confidential information in their defence at the High Court, which in effect would have meant the case being held in secret. They filed an “Open Defence”, in which, while admitting that each of the claimants was detained and transferred, the defendants put in issue any mistreatment which the claimants allege, and, in any event, denied any liability in respect of any of the claimants’ detention or alleged mistreatment. “The issue on this appeal is whether Silber J was right to conclude, as the defendants contend, that it is open to a court in England and Wales, in the absence of statutory authority, to order a closed material procedure for part (or, conceivably, even the whole) of the trial of a civil claim for damages in tort and breach of statutory duty”.

The men’s lawyers argued that use of the “closed material” procedure, normally confined to criminal cases, would undermine the basic concepts of a fair and open trial. The court of appeal agreed with them, stating: “We have concluded that we should allow this appeal, and that we should say firmly and unambiguously that it is not open to a court in England and Wales, in the absence of statutory power to do so or (arguably) agreement between the parties that the action should proceed on such a basis, to order a closed material procedure in relation to the trial of an ordinary civil claim, such as a claim for damages for tort or breach of statutory duty”. They gave as their primary reason for their conclusion that, by acceding to the defendants’ argument, the court, while purportedly developing the common law, would in fact be undermining one of its most fundamental principles. Under common law a party to litigation should know the reasons why he won or lost, and trials should be conducted, and judgments should be given, in public. “In our view, the principle that a litigant should be able to see and hear all the evidence which is seen and heard by a court determining his case is so fundamental, so embedded in the common law, that, in the absence of parliamentary authority, no judge should override it, at any rate in relation to an ordinary civil claim”.

The judges gave the attorney general, MI5 and MI6 28 days to appeal to the supreme court. It will fall to the new government to decide whether or not to appeal, but, according to the ‘Guardian’, the former detainees are now likely to be offered compensation of millions of pounds in out-of-court settlements, that being preferable to having embarrassing evidence of the security and intelligence agencies’ complicity in abuse being exposed.

The full text of the judgement by the Master of the Rolls, Lord Justice Maurice Kay and Lord Justice Sullivan in Neutral Citation Number: [2010] EWCA Civ 482 can be found at:

http://www.bailii.org/ew/cases/EWCA/Civ/2010/482.html

Announcing last week that reforms of the law on libel will be taken forward in the next Parliament, Justice Secretary Jack Straw said: “Our current libel laws need to achieve a fair balance between allowing people to protect their reputations from defamatory allegations, and ensuring that freedom of expression and the public’s right to know on matters of public interest are not unnecessarily impeded. At the moment, we believe that the balance is tilted too much in favour of the former”.

The reforms will build on the work of the Libel Working Group, which was established by the Ministry of Justice in January to consider reforms to the law of libel, and whose report was also published last week. The report focuses on four principal areas in which the case for reform has been urged with particular emphasis: libel tourism; the role of public interest considerations in establishing a defence to a libel action; the rules about multiple publication, with particular reference to the internet; and procedural and case management issues relating to the conduct of libel litigation.

Under the MoJ’s proposals, the current multiple publication rule will be replaced with a single publication rule. This will ensure that claimants in libel proceedings cannot bring a case against every publication or download of a story repeating the same claims. Instead, claimants will only be able to bring a single action, within one year of the date of the original publication. The interests of people who are defamed will be protected by giving the court the power to extend this period where necessary. Consideration will also be given to a statutory defence to protect publications that are in the public interest. It is claimed that this would help address the ‘chilling effect’ that the threat of libel proceedings can sometimes have on investigative journalism, which occurs when media outlets and NGOs are cautious about publishing important information due to the threat of legal action. The government also plan to move to prevent the growth of ‘libel tourism’, when foreign claimants use English courts to make libel claims against foreign publications outside the EU which can be accessed in the UK. This will include asking the Civil Procedure Rule Committee to consider tightening the rules where the court’s permission is required to serve defamation cases outside England and Wales. The aim is to head off inappropriate claims at the earliest stage and stop them from reaching court.

Many commentators welcome the proposed reforms but feel that they do not go far enough, particularly in regard to a public interest defence, where more commitment is sought. The Libel Reform Campaign claims that our libel laws are stacked in favour of claimants, reporting that none of the 154 libel proceedings in 2008 identified in the Jackson Review of Civil Litigation Costs (see blog posted on 19 January) were won by defendants. On costs, they state that the most expensive libel action cost £3,243,980; that the average cost for the 20 most expensive trials was £753,676; and that the average cost of a libel trial in England & Wales is 140 times the European equivalent. An earlier government attempt to reduce the costs of libel cases – reducing the success fees that lawyers can charge in defamation cases from 100% to 10% – has been held up in the Lords by a “motion of regret” tabled by the former Commons speaker Lord Martin. The Ministry of Justice is planning to make parliamentary time available to prevent the order being killed off before the election.

The full text of the Libel Working Group report can be found at:-

http://www.justice.gov.uk/publications/docs/libel-working-group-report.pdf

Debbie Purdey was told by the law lords that she was entitled to clarity over whether her husband would face prosecution should he help her to take her life in Switzerland. Keir Starmer, the Director of Public Prosecutions, quickly produced an interim policy. Yesterday he unveiled his definitive policy guidelines.

This followed a consultation exercise which produced an unprecedented 4800 responses, including 4000 from individuals. The Summary of Responses has led to a significant change of emphasis from the interim policy. Introducing the new policy, the DPP said that “there was a strong view that the factors against prosecution should not focus on the behaviour and characteristics of the victim, but should more properly be centred on the actions and role of the suspect. I agree with that approach and the Policy has been refocused. As a result of this change, factors relating to the health and disability of the victim have been removed from the Policy. In addition, the factors relating to the relationship of the suspect to the victim – namely that the suspect was the spouse, partner, relative or close personal friend of the victim – have also been removed…But that does not mean prosecutions are more or less likely. The policy has not been relaxed or tightened but there has been a change of focus.”

The new policy identifies sixteen public interest factors in favour of prosecution. These include: ‘victims’ under 18 years of age; or who did not have the capacity to reach an informed decision to commit suicide; had not reached a voluntary, clear, settled and informed decision to commit suicide; and had not clearly and unequivocally communicated his or her decision to commit suicide to the ‘suspect’. Other factors include: the ‘suspect’ was not wholly motivated by compassion; or pressured the victim to commit suicide; did not take reasonable steps to ensure that any other person had not pressured the victim to commit suicide; or had a history of violence or abuse against the victim. The six public interest factors against prosecution include: the victim had reached a voluntary, clear, settled and informed decision to commit suicide; the suspect was wholly motivated by compassion; and the actions of the suspect, although sufficient to come within the definition of the crime, were of only minor encouragement or assistance.

Keir Starmer stressed that the policy does not in any way decriminalise the offence of encouraging or assisting suicide, which remains a serious criminal offence under the Suicide Act 1961 (as amended by s.59 Coroners and Justice Act 2009) and is punishable by up to 14 years imprisonment. “Nothing in the Policy can be taken to amount to an assurance that a person will not be prosecuted if he or she does an act that encourages or assists the suicide or the attempted suicide of another person”. So the debate now lies with the criminal law itself. An end to the criminal prohibition on assisting suicide is what Debbie Purdy and others really want, just as suicide itself has ceased to be a criminal offence. Whether parliament, with deeply divided opinion among MPs and their constituents, will grasp that nettle is another matter.

For the full text of “Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide” go to: http://www.cps.gov.uk/publications/prosecution/assisted_suicide_policy.html For the “Summary of Responses” go to: http://www.cps.gov.uk/consultations/as_responses.html

That was the question posed by the Ministry of Justice. Even though juries decide less than 1% of all criminal cases in England and Wales, defendants in these cases are charged with the most serious criminal offences and face the greatest possible loss of liberty. The fairness of jury decision-making is of fundamental importance to the criminal justice system. The MoJ  therefore commissioned research from a University College London team led by Professor Cheryl Thomas, who presented their report last week. And the broad conclusion is that juries are indeed fair and efficient.

 The scope of  the UCL research is impressive. It involved case simulation with real juries at Crown Courts (involving 797 jurors on 68 juries), large-scale analysis of all actual jury verdicts in 2006–08 (over 68,000 verdicts) and post-verdict survey of jurors (668 jurors in 62 cases). As to efficiency, once a jury is sworn it reaches a verdict by deliberation on 89% of all charges (judges direct jury verdicts on 11% of charges) and they reach verdicts on virtually all charges (only 0.6% of all verdicts are hung juries). Juries convict on almost two-thirds (64%) of all charges presented to them and are rarely discharged (less than 1% of sworn juries).

 The research examined how fair the jury decision-making process is, specifically whether all- white juries discriminate against BME defendants, who are three and half times more likely to face a jury verdict in the Crown Court relative to their representation in the general population, and whether jurors racially stereotype defendants. The key finding was that verdicts of all-white juries do not discriminate against BME defendants. Jury verdicts showed only small differences based on defendant ethnicity. White and Asian defendants both had a 63% jury conviction rate; Black defendants had a 67% jury conviction rate.

 On specific offences, the category of homicide-related offences has some of the lowest jury conviction rates (threatening to kill 36%, manslaughter 48%, attempted murder 47%) but also some of the highest jury conviction rates (death by dangerous driving 85%, murder 77%). Offences where the strongest direct evidence is likely to exist against a defendant appear to have the highest conviction rates (making indecent photographs of a child 89%, drugs possession with intent to supply 84%, death by dangerous driving 85%). Contrary to popular belief and previous government reports, juries actually convict more often than they acquit in rape cases (55% jury conviction rate). Other serious offences (attempted murder, manslaughter, GBH) have lower jury conviction rates than rape.

 The team also looked at whether or not jurors understood judge’s legal advice. Most jurors at Blackfriars (69%) and Winchester (68%) felt they were able to understand the directions, while most jurors at Nottingham (51%) felt the directions were difficult to understand. While over half of the jurors perceived the judge’s directions as easy to understand, only a minority (31%) actually understood the directions fully in the legal terms used by the judge. Younger jurors were better able than older jurors to comprehend the legal instructions, with comprehension of directions on the law declining as the age of the juror increased. The review also found that in high profile cases almost three-quarters of jurors will be aware of media coverage of their case, and 20% of jurors said they found it difficult to put these reports out of their mind while serving as a juror. All jurors who looked for information about their case during the trial looked on the internet, thereby admitting to something they should have been told by the judge not to do.  

The full text of this fascinating report ‘Are Juries Fair?’ can be found at:

http://www.justice.gov.uk/about/docs/are-juries-fair-research.pdf

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.