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    BBC News: Stop-and-search powers ruled illegal by European court

    BBC News reports on a new ruling today from the European Court of Human Rights. In Gillan and Quinton v. the United Kingdom (application no. 4158/05), the court ruled that Section 44 of the Terrorism Act of 2000 in the United Kingdom violated the rights of Kevin Gillan and Pennie Quinton, specifically “the right to respect for his private and family life” set out in Article 8 of the European Convention on Human Rights (pdf). The two were “stopped near an arms fair in London in 2003.”

    Section 44 “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.”

    The court pointed to risk of abuse under Section 44. It concluded, “the powers of authorisation and confirmation as well as those of stop and search under sections 44 and 45 of the 2000 Act are neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse.”  The court said, “there is a clear risk of arbitrariness in the grant of such a broad discretion to the police officer. While the present cases do not concern black applicants or those of Asian origin, the risks of the discriminatory use of the powers against such persons is a very real consideration […] The available statistics show that black and Asian persons are disproportionately affected by the powers.”

    The court also discussed the concept of a “private life” and the British government’s argument that the stop-and-search-of-pedestrians powers were analogous to searches of airport travelers.

    61. As the Court has had previous occasion to remark, the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person. The notion of personal autonomy is an important principle underlying the interpretation of its guarantees (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002-III). The Article also protects a right to identity and personal development, and the right to establish relationships with other human beings and the outside world. It may include activities of a professional or business nature. There is, therefore, a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life”. There are a number of elements relevant to a consideration of whether a person’s private life is concerned in measures effected outside a person’s home or private premises. In this connection, a person’s reasonable expectations as to privacy may be a significant, though not necessarily conclusive, factor (see P.G. and J.H. v. the United Kingdom, no. 44787/98, §§ 56-57, ECHR 2001-IX and Peck, cited above, §§ 57-63). […]

    62. Turning to the facts of the present case, the Court notes that sections 44-47 of the 2000 Act permit a uniformed police officer to stop any person within the geographical area covered by the authorisation and physically search the person and anything carried by him or her. The police officer may request the individual to remove headgear, footwear, outer clothing and gloves. Paragraph 3.5 of the related Code of Practice further clarifies that the police officer may place his or her hand inside the searched person’s pockets, feel around and inside his or her collars, socks and shoes and search the person’s hair (see paragraph 36 above). The search takes place in public and failure to submit to it amounts to an offence punishable by imprisonment or a fine or both (see paragraph 33 above). In the domestic courts, although the House of Lords doubted whether Article 8 was applicable, since the intrusion did not reach a sufficient level of seriousness, the Metropolitan Police Commissioner conceded that the exercise of the power under section 44 amounted to an interference with the individual’s Article 8 rights and the Court of Appeal described it as “an extremely wide power to intrude on the privacy of the members of the public”. […]

    64. The Court is also unpersuaded by the analogy drawn with the search to which passengers uncomplainingly submit at airports or at the entrance of a public building. It does not need to decide whether the search of the person and of his bags in such circumstances amounts to an interference with an individual’s Article 8 rights, albeit one which is clearly justified on security grounds, since for the reasons given by the applicants the situations cannot be compared. 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.

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