UK police search powers illegal: human rights court

[Al-khiyal]

Police search powers illegal: human rights court

January 12, 2010 -- Police stop and search powers under UK terrorism laws have been declared illegal by human rights judges after two Londoners questioned their legality. The right to question people without grounds for suspicion - granted by the Terrorism Act of 2000 - violates the Human Rights Convention, said the European Court of Human Rights. The ruling came in a case brought by two Londoners who were stopped and questioned by police near an arms fair in the city in 2003. Kevin Gillan and Pennie Quinton were both searched on the same day in the area of the Defence Systems and Equipment International Exhibition at the Excel Centre in Docklands, where there had already been protests and demonstrations. Nothing incriminating was found on either of them and they went to court questioning the legality of stop and search powers. The High Court and the Court of Appeal said the powers were legitimate given the risk of terrorism in London. But the human rights court disagreed.

The judgment said: "The (human rights) court considers that 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. They are not, therefore, 'in accordance with the law' and it follows that there has been a violation of Article 8 of the Convention." Article 8 says "everyone has the right to respect for his private and family life". The human rights judges said that, although Mr Gillan and Ms Quinton were each stopped and searched for less than 30 minutes, they were "entirely deprived of any freedom of movement" for the duration.

The Home Office said it was disappointed with the judgment and would appeal against the court's ruling. Policing and Security Minister David Hanson said: "Stop and search under section 44 of the Terrorism Act 2000 is an important tool in a package of measures in the ongoing fight against terrorism. I am disappointed with the ECHR ruling in this case as we won all other challenges in the UK courts, including at the House of Lords. We are considering the judgment and will seek to appeal."

[Al-khiyal]

Stop and search powers illegal, European court rules

January 12, 2010 -- The ability of UK police to use "arbitrary" counter-terror stop and search powers against peace protesters and photographers lay in tatters today after a landmark ruling by the European court of human rights. The Strasbourg court ruled it was unlawful for police to use the powers, under section 44 of the Terrorism Act 2000, to stop and search people without needing any grounds for suspicion. The widely-drawn ruling said that not only the use of the counter-terror powers, but also the way they were authorised, were "neither sufficiently circumscribed, nor subject to adequate legal safeguards against abuse". The use of these powers has grown fourfold, from 33,177 times in 2004 to more than 117,200 in 2008. The Metropolitan police have used them most, but 11 other forces in England and Wales also make routine use of them. A political furore ensued when it was disclosed that the whole of Greater London had been secretly designated for stop and search without suspicion since 2001.

The case ruled on today was brought by Kevin Gillan and Pennie Quinton, who were stopped by police while their way to a demonstration outside the annual arms fair at the Excel centre, in London's Docklands, in September 2003. Quinton, a journalist, was ordered to stop filming the protest despite showing her press card, while Gillan, who was riding his bicycle, was only allowed to go on his way after 20 minutes. They were awarded €33,850 (£30,400) in costs and expenses. The European judges said the power to search a person's clothing and belongings in public included an element of humiliation and embarrassment which was a clear interference with the right to privacy. But they also criticised the way in which the police use of stop and search powers was authorised. There is no requirement that the powers be considered "necessary" – only "expedient".

The use of the powers is subject to confirmation by the home secretary within 48 hours, renewable after 28 days, but the European court said there was no real check on authorisations by parliament or the courts. This was demonstrated by the continuous renewal, every 28 days, of the use of the powers in London since their first introduction, the judges added. They said they were further concerned that the decision to stop and search somebody was "based exclusively on the 'hunch' or 'professional intuition' of the police officer". The sole condition was that the search had to look for articles used in connection with terrorism – but this covered many things commonly carried by people in the street. Police did not even have to have grounds for suspecting such articles were present. The judges said that, because of this, there was a "clear risk of arbitrariness in granting such broad discretion" to a police officer.

Their concerns were compounded by the fact that black and Asian people were four times more likely to be stopped under section 44 and there was a risk that the power could be misused against demonstrators. "The absence of any obligation on the part of the officer to show a reasonable suspicion made it almost impossible to prove that the power had been improperly exercised," the judges said in describing the lack of judicial checks. As such, section 44 was not in "accordance with the law" and amounted to a violation of article eight – the right to respect for private and family life.

Quinton told the Guardian she was delighted with the judgment, saying: "There has to be a balance between private life and security. The court has shown that section 44 is an invasion of people's right to liberty and privacy. Hopefully the government will have to put a fairer law in place to protect us." Gillan hailed the ruling as "fantastic news after a long struggle" and added: "I look to the government for a strong response." Corinna Ferguson, the legal officer for Liberty and acting for the two, said: "Liberty has consistently warned the government about the dangers of stop and search without suspicion and actively campaigned for the tightening up of the infamous section 44 power. The public, police and court of human rights all share our concerns for privacy, protest, race equality and community solidarity that come with this sloppy law. In the coming weeks parliamentarians must finally sort out this mess."

The shadow home secretary, Chris Grayling, said: "We have long said that anti-terror laws should not be used as a way of conducting normal day-to-day policing. The government needs to make sure that the police have the appropriate powers to deal with crime and antisocial behaviour."

[Al-khiyal]

Welcome judgment on stop and search

January 12, 2010 -- The decision by the European court of human rights to find against the use of section 44 stop and search powers because they lack proper safeguards against abuse is of immense importance for civil liberties in Britain. Not only is the specific practice of random search rendered illegal by the court but its judgment focuses attention on the increasing abuse of measures brought in by the Terrorism Act 2000, and the resentment of the public. It is interesting that the government has said it is disappointed with the ruling and will seek to appeal, because it has already ignored an equally categorical decision in 2008 concerning the retention of innocent people's DNA. However, the case brought by Pennie Quinton and Kevin Gillan, two protestors stopped in 2003 outside an arms fair in London, is going to be extremely difficult to ignore, for the simple fact that so many people find themselves being stopped.

Last year about 250,000 people were stopped – about 700 a day. This jumped by one third in 2008. There has been steady increase since the first year of the Act, when just 10,200 were stopped. Even Lord Carlisle, the independent reviewer of terror legislation, who normally supports a tough government line, suggested that the implications of the ruling were quite serious and added that Section 44 was being used far too much.

In 2006, the House of Lords unanimously dismissed the pair's case with this:

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.

The European Court disagreed and said it "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 judgment finds that a public search clearly interferes with the right to a private life, that it creates humiliation and embarrassment, and that there were not sufficient safeguards against arbitrary use by the police. It also found that the checks provided by parliament as to where and when Section 44 could be used were not enough. The court highlighted the lack of the absence of obligation on behalf of police officers to show reasonable suspicion makes it impossible to prove that the powers were improperly used.

Quinton and Gillan, who along with Liberty should be praised for their stamina and tenacity on this crucial issue, lodged their appeal against the House of Lords decision five years ago. The wait has been worth it. Here is another significant part of the judgment:

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.

Last year it was revealed that since May 2007 the number of searches under Section 44 powers had risen by 322 per cent for black people, 277 per cent for Asian people, but only 185 per cent for white people. The result was that police reportedly increased the searches in order to balance racial quotas, in one instance mounting an operation at the entrance of the British Library in London. This is a very welcome judgment and I cannot believe a government that introduced the Human Rights Act with so much fanfare is seeking to appeal it.