Section 44 Terrorism Act Stop and search powers ruled illegal by European court
- Thread starter Squatticus
- Start date
Azrael
circling Airstrip One
Good ruling, although I'm not cheering yet. I'll have to read the judgment, but unlike the USA's Fourth Amendment, or Section Eight of the Canadian Charter, the ECHR doesn't specifically ban "unreasonable search and seizure". It just has a vague, abstract "right to privacy". So there could well be wiggle-room for Labour to disregard the ruling.
Exactly. It sounds good on the face of it but the devil may well be in the detail..
Azrael
circling Airstrip One
The burden of proof for a search is surely as low as it can get. (Which is why both Tories and Labour have removed it entirely in some circumstances.) The law specifies "reasonable suspicion". There's been case law specifying what that is, but there's no requirement for probability, or suspicion sufficient to cause belief, as, say, Canada requires.
Azrael
circling Airstrip One
The devil is always in the detail of the ECHR, since it doesn't have any!
Bakunin
I am Noodle's bitch.
What will this mean for any actions brought by folk who've been stopped and searched unreasonably?
When I was Kingsnorth I was stopped and searched eight times in a single week, including four searches in a single day. Granted they didn't wheel out an X ray machine or the dreaded Marigold gloves, but I was pretty ticked off all the same.
When I was Kingsnorth I was stopped and searched eight times in a single week, including four searches in a single day. Granted they didn't wheel out an X ray machine or the dreaded Marigold gloves, but I was pretty ticked off all the same.
Azrael
circling Airstrip One
Don't blame you!
This particular judgment won't affect it unless the police used the suspicion-free Section 44, Terrorism Act, 2000 (or, by implication, the similar sections of the Public Order Act, 1994). If the police did use those powers, well, the plaintiffs bagged over £30K compensation!
Some more details of the Euro court judgment here. "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."
Looks like a typically vague Euro judgment, sadly. The only thing that'll protect the public is an unequivocal statement that searches without individualised suspicion are wrong in all circumstances, and that said suspicion should be enough to create a reasonable belief. Unfortunately the Euro convention, with its abstract rights that must be balanced against one another, doesn't work that way.
sim667
All aboard the 303 bus.
And you didnt make a police harassment complaint?
I made one after being stopped 3 times in a fortnight
Bakunin
I am Noodle's bitch.
Don't blame you!
And you didnt make a police harassment complaint?
I made one after being stopped 3 times in a fortnight
I handed in my stop and search forms to the Climate Camp legal team who, as I understand it, are working up a legal case against the police for their policing policies at Kingsnorth and at the end of the camp asked for everybody to hand in their stop and search paperwork.
When the member of my neighbourhood (Climate Camp is organised in regional groups known as neighbourhoods) who collected them looked at the stack of forms I gave him, his eyes widened, his jaw dropped a,little and he said:
'Jesus mate, they must have loved you!'
Details of the judgement here ECHR Press release http://cmiskp.echr.coe.int/tkp197/v...F01C1166DEA398649&key=79298&highlight=4158/05
There is specific mention in it regarding it's potential use against protestors
e2sa: Sorry - the link seems to be a bit hit & miss (server errors) but it does work
There is specific mention in it regarding it's potential use against protestors
e2sa: Sorry - the link seems to be a bit hit & miss (server errors) but it does work
cybertect
It's grim up north (London)
At bloody last! 
Hardly a clear profit - they merely got their expenses in fighting the case back
(and that sounds quite cheap for an ECHR case to me)
Hardly a clear profit - they merely got their expenses in fighting the case back
BBC said:
(and that sounds quite cheap for an ECHR case to me)
They did - this is what the judgement is about (sections 44-47) and their unrestricted/arbitrary use
Azrael
circling Airstrip One
Ah, mea culpa, I took compensation to mean in addition to costs (actually it's Grauniad culpa, since they didn't make it clear).
I wouldn't begrudge the plaintiffs £30K comp. Unlawful and unreasonable searches should cost the state a pretty penny. I'd double it, at least.
Azrael
circling Airstrip One
Ah. Good. Sue the bastards proper!They did - this is what the judgement is about (sections 44-47) and their unrestricted/arbitrary use
The full judgement in that press release from ECHR I linked to above makes very interesting readingAh. Good. Sue the bastards proper!
cybertect
It's grim up north (London)
Bakunin
I am Noodle's bitch.
Do they award 30,000 pounds compensation per search?
*Pops down to Jaguar E Type showroom and rings round local estate agents*
I wouldn't normally do a large C&P but as the link http://cmiskp.echr.coe.int/tkp197/v...F01C1166DEA398649&key=79298&highlight=4158/05 seems to be flaky at mo' here's the judgement part of the press release
--------------------------------------
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.
<< trimmed remaining>>
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I'd say that's a very damning judgement & I'm already seeing some very happy tweets from journalists including one that says there's a Met instruction stopping the use of S44 already (not sure about the truth of that last bit though) but there are a lot of happy press people at the moment
--------------------------------------
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.
<< trimmed remaining>>
---------------------------
I'd say that's a very damning judgement & I'm already seeing some very happy tweets from journalists including one that says there's a Met instruction stopping the use of S44 already (not sure about the truth of that last bit though) but there are a lot of happy press people at the moment
Azrael
circling Airstrip One
Do they award 30,000 pounds compensation per search?
*Pops down to Jaguar E Type showroom and rings round local estate agents*
. Perhaps sir would prefer something in a Veyron.
Accumulative comp, I like this idea more and more!
Bakunin
I am Noodle's bitch.
Perhaps sir would prefer something in a Veyron.
Accumulative comp, I like this idea more and more!
Or I could just buy the Playboy mansion.
Then lock the doors and retire...
Azrael
circling Airstrip One
Thanks for the C&P, GoneCoastal -- the darn thing wasn't working for me, either.
That's pretty robust for Strasbourg. I'd have preferred more explicit condemnation of searches without individualised suspicion, but I guess the judges have to work with what they're given, and the comparison between a random domestic search and an air traveller was well done.
A free country has no place authorising agents of the state to detain and search the public on a whim. That's the methods, if not yet the motives, of a police state. Perhaps now more of the public will start to question this violation of their fundamental rights, instead of meekly comply in the name of that false god, "security".
-- the darn thing wasn't working for me, either. That's pretty robust for Strasbourg. I'd have preferred more explicit condemnation of searches without individualised suspicion, but I guess the judges have to work with what they're given, and the comparison between a random domestic search and an air traveller was well done.
A free country has no place authorising agents of the state to detain and search the public on a whim. That's the methods, if not yet the motives, of a police state. Perhaps now more of the public will start to question this violation of their fundamental rights, instead of meekly comply in the name of that false god, "security".
Azrael
circling Airstrip One
Make sure the protection against searches has been beefed up, first.
Bakunin
I am Noodle's bitch.
Make sure the protection against searches has been beefed up, first.
I was thinking of hiring a dozen Gurkhas as live-in security, as it happens.
Sasaferrato
Super Refuser!
I believe that an incoming Conservative government intends to repeal the ECHR legislation in the UK. That will bring the legal wrangling to an end, as in this case, every court up to and including the Law Lords rejected the plaintiff's case.
Bakunin
I am Noodle's bitch.
Azrael
circling Airstrip One
These are the same Law Lords (sigh, guess I should add in "supreme court" in passing) who ruled, 4-1, that databasing, for life, biometrics from 10-year-olds arrested over playground scuffles in no way compromised their privacy. A decision Strasbourg had to reverse. In a 17-0 unanimous vote.
I'm no fan of the ECHR, but if the Law Lords can't get that right, they're not going to be much cop with the promised British Bill of Rights (mk II, if Mr Cameron even knows about the first one).
Bakunin
I am Noodle's bitch.
It's also worth stating that the ECHR judges voted unanimously in this case as well.
E2A: I just found this on the Bindmans website. Very interesting reading indeed.
http://www.bindmans.com/index.php?id=680
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