Gillon v. UK (ECHR) (striking down search provision in UK’s Terrorism Act 2000)

* Case of Gillon and Quinton v. the United Kingdom (Eur. Ct. Hum. Rts. Jan. 12, 2010)

From the ECHR press release (for the full opinion, see the link at the top of the press release):

Principal facts

The case concerned the police power in the United Kingdom under sections 44-47 of the Terrorism Act 2000 (“the 2000 Act”) to stop and search individuals without reasonable suspicion of wrongdoing.

Under the 2000 Act a senior police officer may issue an authorisation, if he or she considers it “expedient for the prevention of acts of terrorism”, permitting any uniformed police officer within a defined geographical area to stop any person and search the person and anything carried by him or her. The authorisation must be confirmed by the Secretary of State within 48 hours. A search can be carried out by a constable in an authorised area whether or not he has grounds for suspicion, but may only be ‘for articles of a kind which could be used in connection with terrorism’. The police officer may request the individual to remove headgear, footwear, outer clothing and gloves and place his or her hand inside pockets, feel around and inside collars, socks and shoes and search hair. The search takes place in public and failure to submit to it amounts to an offence punishable by imprisonment or a fine or both.

Sections 44-47 of the 2000 Act came into force on 19 February 2001. A rolling programme of successive section 44 authorisations, each covering the whole of the Metropolitan Police district and each for the maximum permissible period (28 days), have been made and confirmed ever since that time.

Between 2004 and 2008 the total of searches recorded by the Ministry of Justice went from 33,177 to 117,278.

The applicants, Kevin Gillan and Pennie Quinton, are British nationals who were born in 1977 and 1971 respectively and live in London. 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. Mr Gillan was allowed to go on his way after having been detained for about 20 minutes; the record of Ms Quinton’s search showed she was stopped for five minutes but she thought it was more like 30 minutes.

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.

Complaints, procedure and composition of the Court

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).

The application was lodged with the European Court of Human Rights on 26 January 2005 and declared admissible on 12 May 2009. A hearing was held on the case on Tuesday 12 May 2009.

Judgment was given by a Chamber of seven judges, composed as follows:

Lech Garlicki (Poland), President,
Nicolas Bratza (the United Kingdom),
Giovanni Bonello (Malta),
Ljiljana Mijović (Bosnia and Herzegovina),
Päivi Hirvelä (Finland),
Ledi Bianku (Albania),
Nebojša Vučinić (Montenegro), judges,

and also Lawrence EarlySection Registrar.

Decision of the Court

Article 8

Whether there was an interference

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. 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 section 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.

Whether the interference was “in accordance with the law”

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.

Firstly, at the authorisation stage there was no requirement that the stop and search power be considered “necessary”, only “expedient”. The authorisation was subject to confirmation by the Secretary of State within 48 hours and was renewable after 28 days. The Secretary of State could not alter the geographical coverage of an authorisation and although he or she could refuse confirmation or substitute an earlier time of expiry, it appeared that in practice this had never been done. Indeed, the temporal and geographical restrictions provided by Parliament had failed to act as any real check on the issuing of authorisations by the executive, demonstrated by the fact that an authorisation for the Metropolitan Police District had been continuously renewed in a “rolling programme” since the powers had first been granted.

An additional safeguard was provided by the Independent Reviewer appointed under the 2000 Act. However, his powers were confined to reporting on the general operation of the statutory provisions and he had no right to cancel or alter authorisations, despite the fact that in every report from May 2006 onwards he had expressed the clear view that “section 44 could be used less and I expect it to be used less”.

Of still further concern was the breadth of the discretion conferred on the individual police officer. The officer’s decision to stop and search an individual was one based exclusively on the “hunch” or “professional intuition”. Not only was it unnecessary for him to demonstrate the existence of any reasonable suspicion; he was not required even subjectively to suspect anything about the person stopped and searched. The sole proviso was that the search had to be for the purpose of looking for articles which could be used in connection with terrorism, a very wide category which covering many articles commonly carried by people in the streets. Provided the person concerned was stopped for the purpose of searching for such articles, the police officer did not even have to have grounds for suspecting the presence of such articles.

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 and found that there was a clear risk of arbitrariness in granting such broad discretion to the police officer. While the present cases 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.

Although the powers of authorisation and confirmation exercised by the senior police officer and the Secretary of State respectively were subject to judicial review, the breadth of the discretion involved meant that applicants faced formidable obstacles in showing that any authorisation and confirmation were ultra vires or an abuse of power. Similarly, as shown in the applicants’ case, judicial review or an action in damages to challenge the exercise of the stop and search powers by a police officer in an individual case were unlikely to succeed. The absence of any obligation on the part of the officer to show a reasonable suspicion made it almost impossible to prove that that power had been improperly exercised.

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.

Other Articles

Given the finding above, the Court held that it was not necessary to examine the applicants’ complaints under Articles 5, 10 and 11.

Article 41 (just satisfaction)

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 (EUR) for costs and expenses.

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