UK Appeals Court Decision on Stops and Searches at Protests 2004

02/08/2004

According to the Terrorism Act 2000, in Part 5 sections 44 and sections 45, the police may stop and search arbitrarily with the purpose to prevent terrorism when authorisation is given by a commander of metropolitan police. In effect, after an authorisation is given by a senior officer, individuals may be stopped and searched without any precondition of reasonable grounds of suspicion. Such authorisation may be granted on a rolling basis, and must be announced by the Secretary of State. In this case, such an authorisation was made by the Assistant Commissioner of hte Metropolitan Police in August 2003, but it was in fact part of a rolling programme that was in effect since February 19, 2001. The appellants noted that it appears that such powers are used regularly, and as a reuslt they appear to be part of "day-to-day" policing.

The appellants argued that the power used to stop and search them while at an arms fair in September 2003 was contrary to the legislative purpose of the Terrorism Act 2000 and unlawful. Moreover, they argued that the authorisation powers for such a broad programme of stop and search was a disproportionate interference under the European Convention on Human Rights.

The first Court decided that the intent of the law was indeed to apply to a police area or district. The Court then decided that the police acted in accordance with law, and the "assessment of national security and the measures required to protect it was one primarily for the Government and Parliament" and not the Courts.

The Court then decided that there was "just enough" evidence available to persuade the Court that the arms fair was an occasion in which section 44 was needed, " "but it was a fairly close call" and the police needed to review their practices".

On the consistency with the ECHR, the Court noted that '"[i]f there were any question of the police using these powers as part of day-to-day policing on the streets of London" then the appellants’ submission with regard to the proportionality of the powers’ use would have "considerable force".' But there was no such evidence, the Court argued. This led the Court to decide that the threat posed by terrorism made it necessary to violate rights of the ECHR.

The grounds for appeal were set, and six grounds were selected. First, Parliament had not inteded to allow these powers to be used as an additional tool for policing generally. Second, the senior police had not conducted themselves appropriately in that the police on the ground were merely informed that section 44 was in force but without any evidence that the arms fair was a terrorist target. Third, fundamental rights were being over-ridden by the wide interpretation of 'expedient', rather than 'for the prevention of acts of terrorism'. Fourth, these sections of the Terrorism Act 2000 were incompatible to the ECHR. Fifth, the authorisation, its confirmation and the use of powers under it are not prescribed by law since the expression "prescribed by law" requires a provision to be "adequately accessible and reasonably foreseeable"; the authorisation and its confirmation was not publicly known, and as a result, a citizen could do nothing to "regulate their conduct to avoid being stopped and searched". Nor are such acts against peace protestors proportionate, and the powers were being used as if it were "part of day-to-day policing on the streets of London". Sixth, if there was such an emergency, then Parliament would and should have derogated from Article 15 of the ECHR.

On the issue of Interpretation, the Appeals Court decided that "[i]t is clear that Parliament, unusually, has permitted random stopping and searching, but, as we have already indicated when examining the language of the relevant sections, made the use of that power subject to safeguards." On the matter of expediency, "[i]t is entirely consistent with the framework of the legislation that a power of this sort should be exercised when a senior police officer considers it is advantageous to exercise the power for the prevention of acts of terrorism." So the very existence of the power is not in contravention with the ECHR, but rather depends on the circumstances in which the power is excercised.

The Appeals Court "will not readily interfere with the judgement of the authorities as to the action that is necessary." However, "[w]hat action is or is not proportionate is still very much an issue for the judgment of the court."

However, with respect to the ECHR, the Appeals Court argued that

• the stop and search was not a breach of Article 5 against detention because Article 5 is concerned with "the deprivation of liberty and not with mere restrictions on freedom of movement", and the main aim of stopping and searching is to effect a verification, not to deprive an individual of his liberty;
• the right of freedom of expression and the right of assembly (Articles 10 and 11) were not affected, nor does the power if properly exercised have a chilling effect since the powers are ' strictly limited to searching for articles of a kind which could be used in connection with terrorism". This would have been different had the powers been used "in order to control or deter attendance at demonstrations". The Court was concerned that some papers relating to the demonstration were seized and an appellant was prevented from filming the event, but in general, the legislation does conform with the ECHR;
• the contravention of rights under 5, 8, 10, and 11 was not arbitrary. The law is under criticism, not the authorisation; and as such, the law was part of the public record. "[W]hile the authorisations and their confirmation are not published because not unreasonably it is considered publication could damage the effectiveness of the stop and search powers and as the individual who is stopped has the right to a written statement under section 45(5), in this context the lack of publication does not mean that what occurred was not a procedure prescribed by law";
• the powers are not disproportionate. As we are dealing with terrorism, "the authorisation and confirmation of a random power of search, provided by Parliament subject to the safeguards we have identified, cannot, as a matter of general principle, be said to be an unacceptable intrusion". On the balance of things, "[t]he disadvantage of the intrusion and restraint imposed on even a large number of individuals by being stopped and searched cannot possibly match the advantage that accrues from the possibility of a terrorist attack being foiled or deterred by the use of the power";

We have archived the decision in full below.

Neutral Citation No.

and

- - - - - - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - - - - - - -

(instructed by Liberty) for the Appellants

MR PHILIP SALES & MR PHILIP COPPEL for the Respondent

(instructed by Metropolitan Police Directorate of Legal Services)

Hearing dates : 12^th – 13^th July 2004

- - - - - - - - - - - - - - - - - - - - -

The Lord Chief Justice: This is the judgment of the Court.

1. This is an appeal against the decision of 31 October 2003 of the Divisional Court (Brooke LJ and Maurice Kay J) which dismissed the appellants’ claims for judicial review. The appellants had challenged the lawfulness of their being stopped and searched on 9 September 2003 by police officers. The police officers rely on an authorisation made under section 44 of the Terrorism Act 2000 (the "2000 Act") by the Assistant Commissioner of the Metropolitan Police and its subsequent confirmation by the Secretary of State to justify their actions.
2. The Divisional Court granted permission to appeal because the claims of the appellants, which were brought by Liberty, raise issues of importance as to the role of the courts when proceedings for judicial review involve issues of national security and the extent of the powers of the police under section 44 of the 2000 Act to stop and search at random members of the public.

The Legal Framework

3. Because the statutory provisions are critical to the outcome of these appeals, it is convenient to begin by examining them.

Sections 41 to 43: the "reasonable suspicion" provisions

4. Part V of the 2000 Act provides the police with wide-ranging powers for use in countering terrorism. Sections 41, 42 and 43 are provisions relating to the arrest or stop and search of an individual where the police officer has a "reasonable suspicion" that the individual in question is a terrorist. These provisions are not directly at issue in this appeal. Their relevance is because the powers that are in issue do not require for their use that the police officer exercising the power have to have a reasonable suspicion.

Sections 44 to 47: stop and search pursuant to an authorisation

5. The relevant parts of section 44 and section 45 of the 2000 Act with which we are primarily concerned are in terms that are different in important respects and we set them out below: [emphasis added]

44. - (1) An authorisation under this subsection authorises any constable in uniform to stop a vehicle in an area or at a place specified in the authorisation and to search-

(a) the vehicle;

(b) the driver of the vehicle;

(c) a passenger in the vehicle;

(d) anything in or on the vehicle or carried by the driver or a passenger.

(2) An authorisation under this subsection authorises any constable in uniform to stop a pedestrian in an area or at a place specified in the authorisation and to search-

(a) the pedestrian;

(b) anything carried by him.

(3) An authorisation under subsection (1) or (2) may be given only if the person giving it considers it expedient for the prevention of acts of terrorism.

(4) An authorisation may be given-

(b) where the specified area or place is the whole or part of the metropolitan police district, by a police officer for the district who is of at least the rank of commander of the metropolitan police;

45. - (1) The power conferred by an authorisation under section 44(1) or (2)-

(a) may be exercised only for the purpose of searching for articles of a kind which could be used in connection with terrorism, and

(b) may be exercised whether or not the constable has grounds for suspecting the presence of articles of that kind.

(2) A constable may seize and retain an article which he discovers in the course of a search by virtue of section 44(1) or (2) and which he reasonably suspects is intended to be used in connection with terrorism.

(3) A constable exercising the power conferred by an authorisation may not require a person to remove any clothing in public except for headgear, footwear, an outer coat, a jacket or gloves.

(4) Where a constable proposes to search a person or vehicle by virtue of section 44(1) or (2) he may detain the person or vehicle for such time as is reasonably required to permit the search to be carried out at or near the place where the person or vehicle is stopped.

(5) Where-

(a) a vehicle or pedestrian is stopped by virtue of section 44(1) or (2), and

(b) the driver of the vehicle or the pedestrian applies for a written statement that the vehicle was stopped, or that he was stopped, by virtue of section 44(1) or (2),

the written statement shall be provided.

(6) An application under subsection (5) must be made within the period of 12 months beginning with the date on which the vehicle or pedestrian was stopped.

6. The combined effect of sections 44 and 45 is that, after an authorisation is given by a senior officer under section 44, a police officer in uniform will be able to stop and search vehicles and persons without there being any precondition of reasonable grounds of suspicion.
7. Section 46 deals with the duration of the authorisation. Each authorisation must be given for a specific period of time, and in no case can a period be greater than 28 days (although, as explained below, "rolling authorisations" are possible). Where an authorisation has been given, the Secretary of State must be given notice of it as soon as is reasonably practicable (section 46 (3)). The Secretary of State must decide whether or not to confirm the authorisation. If it is not confirmed within 48 hours of the time it was given, the authorisation ceases to have effect (section 46 (4)). If the Secretary of State decides to confirm the authorisation he may do so either for the whole of the period authorised under section 44 or for any shorter period. Pursuant to sections 44 (5) and 44(6), the Secretary of State may also cancel an authorisation.
8. It will be noted that, while section 44 confers an extremely wide power to intrude on the privacy of members of the public, there are significant statutory restraints on its use. There is:

1. the requirement for the authorisation by a senior police officer and its confirmation by the Secretary of State;
2. the limited life of the authorisation and the requirement for it to be regularly renewed; and
3. the precisely defined purpose for which the power may only be exercised.

9. It is an offence under section 47 not to stop when required to do so or to interfere with the exercise of the power.

The Code of Practice

10. Before proceeding, further reference should be made to the Code of Practice issued by the Secretary of State for the exercise by police officers of statutory powers of stop and search which came into force on 1 April 2003. It is required to be readily available at all police stations for consultation by all police officers. Its existence should be known to all police officers. The first general principle to which it refers is that the powers must be "used fairly, responsibly, with respect to people being searched".
11. The Code has a section dealing with section 44 powers. It summarises the effect of the provisions to which we have been referred. Included in the information provided is the statement that the "powers must not be used to stop and search for reasons unconnected with terrorism" and that the power should be used "to search only for articles which could be used for terrorist purposes". The Code also contains valuable requirements as to recording and monitoring of the use of powers that should help to avoid the powers being abused. The Code also has notes of guidance amplifying the provisions of the Code. The existence of the Code is a further safeguard designed to combat the risk of abuse of stop and search powers.
12. A statement of Catherine Byrne describes the process of authorisation and confirmation. The authorisation is reviewed by the appropriate departments in New Scotland Yard and the Home Office. The authorisation is then considered in detail by the Secretary of State before the confirmation is issued.

The Sequence of Events

The Authorisations

13. On 13 August 2003, Assistant Commissioner Veness of the Metropolitan Police gave an authorisation under sections 44 (1) and (2) of the 2000 Act in relation to the whole of the Metropolitan District. The authorisation ran for 28 days until 9 September 2003. It was duly confirmed by the Secretary of State. On 9 September 2003 Assistant Commissioner Veness gave a further authorisation under the same provisions, again in relation to the whole of the Metropolitan District. This authorisation again ran for 28 days until 6 October 2003. On 11 September 2003, the Secretary of State confirmed the further authorisation under section 46 (4) of the 2000 Act, making no variations to it. This was part of a programme of successive authorisations or a "rolling programme" which has been taking place since the coming into force of sections 44 to 47 of the 2000 Act on 19 February 2001.
14. The appellants made a successful application that further evidence should be admitted for the hearing of this appeal. The evidence relates to the number of people who have been stopped and searched since the "rolling" section 44 authorisation in the Metropolitan District came into force. The appellants suggest that the evidence shows that the authorisations have become part of "day-to-day policing". They rely on the evidence in support of their contention that the making of the authorisation and the exercise of the powers under Chapter V of the 2000 Act constitute a disproportionate infringement of fundamental rights.

The searches of the appellants

15. Between 9 and 12 September 2003, there was a Defence Systems and Equipment International Exhibition ("the arms fair") at the Excel Centre in Docklands, East London. The arms fair was the subject of protests. The policing of the protests was under the control of Commander Messenger. He set the strategy which included the use of section 44 powers.
16. The first appellant is a 26 year-old student. At about 10.30am on 9 September 2003, he was riding a bicycle and carrying a rucksack near the arms fair; he was on his way to join a demonstration against the arms fair. The first appellant was stopped and searched by two police officers who told him he was being searched under section 44 of the 2000 Act for articles concerned in terrorism. He was handed a notice to that effect. He says he was told in response to his question as to why he was being stopped that it was because a lot of protestors were about and the police were concerned that they would cause trouble. Nothing incriminating was found (although certain papers, which had a connection with the demonstration but no connection with terrorism, were seized by the officers) and the first appellant was allowed to go on his way. He was detained for roughly 20 minutes.
17. At about 1.15pm on 9 September 2003, the second appellant, wearing a photographer’s jacket, carrying a small bag and holding a camera in her hand was stopped close to the arms fair. She had apparently emerged from some bushes. The second appellant was in the area to film the protests against the arms fair. She was searched by a police officer from the Metropolitan Police notwithstanding that she showed her press cards to show who she was. She was told to stop filming. The police officer told her that she was using her powers under sections 44 and 45 of the 2000 Act. Nothing incriminating was found and the second appellant was allowed to go on her way. The record of her search showed she was stopped for five minutes but she thought it was more like thirty minutes. She says she felt intimidated and she was so distressed that she did not feel able to return to the demonstration although it had been her intention to make a documentary or sell footage of the demonstration.
18. Following complaints from the appellants and others, Liberty investigated the extent and duration of the authorisations being granted. It appears that, up until the point that Liberty became involved, each authorisation had been given and confirmed without this being made public.

The Original Grounds of Challenge

19. The nature of the appellants’ case has developed as these proceedings continued. The original grounds of challenge can be summarised as follows:

i. The 13 August 2003 authorisation and its successor were ultra vires.

ii. The use of the section 44 authorisation by police officers to stop and search the first appellant and other protestors was contrary to the legislative purpose and unlawful. In the circumstances it was clear that the guidance given to police officers was either non-existent or calculated to cause officers to misuse the powers. In the alternative, the guidance given was inadequate or misleading.

iii. The decisions to authorise and the use of the powers under section 44 and section 45 to stop and search the appellants and other protestors were a disproportionate interference with the rights arising under Articles 5, 8, 9, 10 and 11 of the European Convention on Human Rights (the "ECHR").

The Decision of the Court Below

The first ground of challenge

20. The Court noted that the appellants’ then-counsel (who did not appear before us) had submitted that there were a number of "clear indications" that Parliament intended a section 44 authorisation to be given and confirmed only in response to "an imminent terrorist threat to a specific location in respect of which normal police powers of stop and search were inadequate". This very narrow interpretation of the section 44 powers was rejected by the Court. It was inconsistent with the structure of the 2000 Act. Parliament had envisaged that an anti-terrorist authorisation might encompass an entire police area or district.
21. Section 44(4) gave the relevant senior officer a broad discretion as to the width of the authorisation required, subject to the Secretary of State’s confirmation. The Court rejected the appellants’ construction and concluded that "the judicial function in scrutinising a decision of this kind is necessarily a limited one". The assessment of national security and the measures required to protect it was one primarily for the Government and Parliament. There was no ground upon which the Court should set aside the decision in question.

The second ground of challenge

22. The second challenge was against the police alone. The Court noted that the Court faced considerable difficulty because of the paucity of evidence submitted by the police relating to the second ground. Given the sweeping nature of the powers, the police were obliged to take particular care to ensure that such powers were not used arbitrarily or capriciously. If the police did not take care, they would leave themselves open to challenges such as the present one or even private law actions.
23. The Court stated that it had "reviewed the evidence in this case anxiously". There was "just enough" evidence available to persuade the Court that, in the absence of any evidence that the powers in question were being habitually used on occasions which might represent symbolic targets, the arms fair was an occasion where the use of section 44 was needed, "but it was a fairly close call" and the police needed to review their practices. The Court was also satisfied that the Deputy Commissioner understood the purpose of the section 44 powers and the need to ensure that they were not misused.

The third ground of challenge

24. The third ground was founded on the proposition that the section 44 authorisations and the exercise of the powers under them constituted a disproportionate interference with the appellants’ rights under Articles 5, 8, 9, 10 and 11 of the ECHR. The appellants had submitted that the use of the powers in question (although they could, in appropriate circumstances, permissibly interfere with fundamental rights) was not proportionate in the context of peace protestors. Additionally, the scale of interference was significantly more in this instance than what was necessary to accomplish the legislative purpose.
25. The Court noted that "[i]f there were any question of the police using these powers as part of day-to-day policing on the streets of London" then the appellants’ submission with regard to the proportionality of the powers’ use would have "considerable force". However, there was no evidence of this before the Court. The Court concluded that the threat posed by terrorist activity was such that it provided the necessary justification for any violation of the appellants’ rights under Articles 8, 9, 10 and 11 that might otherwise be established. No breach of Article 5 was either pursued by counsel or found.

Our Conclusions on the Grounds of Appeal

26. There are six grounds of appeal before us which differ from those argued in the court below. We will set them out and will then seek to provide an answer as well as dealing with our concern, that echoes that of the Divisional Court, as to the limited nature of the evidence produced in these proceedings.

The First Ground

1. This is that the Divisional Court erred in concluding that the authorisation made by the first respondent on 13 August 2003 and confirmed by the second respondent on 14 August 2003 was lawful. The ground is linked to an allegation that the Divisional Court had inappropriately shown deference to the decision of the respondents in coming to their interpretation of the powers contained in section 44. In particular Mr Rabinder Singh QC argues that a restricted meaning was required to be given to the word "expedient" in section 44(3). By contrast he contends that the only conclusion that can be drawn from the extent of the use of the powers is that the authorisations were being used as an additional tool by the police with the "full sanction" of both respondents. This is not what Parliament intended and therefore the making and confirmation of the authorisations was unlawful.

The Second Ground

2. The Divisional Court erred in concluding that the use of stop and search powers under the authorisation against the appellants did not thwart or frustrate the legislative purpose of the 2000 Act. This ground is based on Padfield v Minister of Agriculture, Fisheries & Food [1968] A.C.997. It primarily concerns the first respondent since it is a ground that deals with the exercise of the authorisation under section 44, and does not directly relate to the second respondent. The appellants submit that there was a failure on the part of the police to ensure that the duty to give appropriate instructions to officers relating to the exercise of powers under section 44 was actually effected. As the appellants note, the statement of Commander Messinger (who was in charge of policing the arms fair) does not reveal what instructions (if any) were given to officers under his command prior to the stop and search of the appellants on 9 September 2003. The appellants contend that: (a) the only thing that officers were told was that a section 44 authorisation was in force; and (b) there is no evidence that the respondents had intelligence that the arms fair was a terrorist target or that terrorists were amongst the ranks of those protesting (point (b) is not in dispute).

The Third Ground

3. The allegation is that the Divisional Court failed to construe sections 44 to 47 of the 2000 Act in accordance with the "principle of legality". The appellants describe the principle of legality as being "that fundamental rights cannot be overridden by, or pursuant to, general words" and submit that such a principle was recognised in R v Home Secretary, ex p. Simms [2000] 2 AC 115. Although this argument was not advanced in the same terms in the Divisional Court it is similar to the appellants’ submission as to statutory construction which was argued below. The appellants argue that the Divisional Court’s construction of the word expedient in section 44(3) as "

---

Related:
European Court rules against UK anti-terrorism stop and search powers
PI responds to UK Home Office Discussion Paper on Terrorism