Gillan and Quinton -v- the United Kingdom
European Court of Human Rights
A unanimous chamber judgment was given by the court on
January 12th, 2010
Judgment
There was a violation of the applicants’ rights under article 8 (right to respect for private and family life) of the European Convention on Human Rights on the grounds that the police “stop and search” powers under the UK’s anti-terrorism legislation was too wide and not adequately safeguarded against abuse by domestic law.
Background
The case concerned the police powers in the United Kingdom under sections 44-47 of the Terrorism Act 2000 to stop and search individuals without reasonable suspicion of wrongdoing.
The case was taken by British nationals Kevin Gillan and Pennie Quinton. On September 9th, 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.
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 him or her 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.
Between 2004 and 2008 the total of searches recorded by the ministry of justice went from 33,177 to 117,278.
The applicants applied for a judicial review of the searches. On October 31st, 2003, the High Court dismissed the application. The Court of Appeal, on July 29th, 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 March 8th, 2006, the House of Lords unanimously dismissed the applicants’ appeals, seeing the power as proportionate when seeking to counter the great danger of terrorism.
The applicants brought the case to the ECtHR complaining 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). A hearing was held on the case on Tuesday, May 12th, 2009.
Decision
In relation to article 8, the court considered 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, it said.
Referring to whether the interference was “in accordance with the law”, the court considered that 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”.
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 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.
The risks of the discriminatory use of the powers 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 protesters in breach of article 10 and/or 11 of the convention.
In conclusion, the court considered the powers 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 the finding above, the court held it was not necessary to examine the applicants’ complaints under articles 5, 10 and 11. The applicants were awarded €33,850 for costs and expenses.
The full judgment is available on www.echr.coe.