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Wills_A (2)In December 2015, the Supreme Court handed down its judgment in an appeal brought by a person who was stopped and searched by the police under section 60 of the Criminal Justice and Public Order Act 1994.

Background

When a section 60 authorisation is in force in a particular locality, police officers may stop and search any person or vehicle for dangerous instruments/offensive weapons, regardless of whether or not they have grounds for suspecting that the person or vehicle is carrying such items. Officers of the rank of inspector (or above) may grant such authorisations if they reasonably believe:

  • incidents of serious violence may take place and it would be expedient to make an authorisation in order to prevent them; or
  • an incident of serious violence has taken place, a dangerous instrument or offensive weapon used in the incident is being carried by a person in any locality in that police area, and it is expedient to make an authorisation to find that instrument or weapon; or
  • dangerous instrument or offensive weapons are being carried without good reason.

In September 2010, police officers in Haringey stopped and searched Mrs Roberts, a 37-year-old woman of African-Caribbean heritage, under section 60. An authorisation was in place following police intelligence reports indicating a possible rise in violent crime involving offensive weapons. A police officer searched Mrs Roberts after she failed to show a valid ticket or identification and gave a false name to ticket inspectors on a bus in Tottenham. The officer reasoned that Mrs Roberts’ behaviour suggested that she might be carrying an offensive weapon and that it was not uncommon for women of her age to carry weapons for others.

Mrs Roberts brought a claim for judicial review, alleging that the use of section 60 breached her rights under articles 5 (the right to liberty), 8 (the right to privacy and family life) and 14 (discrimination) of the European Convention of Human Rights. Both the Divisional Court and the Court of Appeal dismissed her claim. The Supreme Court refused permission to appeal on article 14 (the lower courts had declined to engage with statistics that were alleged to show discrimination). The challenge under article 5 was not pursued on appeal.

It was not in dispute that article 8 was engaged or that the search of Mrs Roberts was proportionate to a legitimate aim. Accordingly, the appeal before the Supreme Court was confined to the question of whether section 60 is in accordance with the law for the purposes of article 8 of the Convention.

The decision

The Supreme Court unanimously dismissed the appeal. It declined to make a declaration of incompatibility under section 4 of the HRA 1998, or a declaration that the 2010 guidance and/or the search itself was not in accordance with the law [48].

The Justices considered two previous judgments in which it/the House of Lords has held suspicionless stop and search powers to comply with article 8 (R (Gillan) v Commissioner of Police for the Metropolis [2006] UKHL 12; Beghal v Director of Public Prosecutions [2015] UKSC 49) and the European Court of Human Rights’ (ECtHR) decision in Gillan v UK (2010) application no. 4158/05, in which it held that the suspicionless search power under section 44 of the Terrorism Act 2000 was not in accordance with the law.

The court held that “it cannot be concluded from Gillan that the Strasbourg court would regard every “suspicionless” power to stop and search as failing the Convention requirement of lawfulness” [21]. Underpinning this conclusion is the court’s interpretation of the ECtHR’s admissibility decision in Colon v the Netherlands (2012) application no. 49458/06 as upholding the Convention compatibility of a suspicionless search power [21] – [23].

The judgment includes a detailed overview of the ‘constraints’ on the use of section 60 [29] – [40]. Reference is made to the availability of remedies before the courts, independent oversight of the police and the existence of complaints-handling mechanisms. Sections 2-3 of PACE 1984, PACE Code of Practice A, police standard operating procedures and the voluntary ‘Best Use of Stop and Search Scheme’ were also considered to be relevant safeguards.

Against this backdrop, the Supreme Court held that section 60 is (and was in 2010) in accordance with the law [47] – [48]; it highlighted the following:

  • The need to read section 60 in conjunction with section 6(1) of the HRA 1998, which makes it unlawful for a police officer to act incompatibly with the Convention, and the Equality Act 2010, which makes it unlawful for a police officer to discriminate in the exercise of his/her powers [42].
  • The adequacy of the safeguards that apply to the authorisation process, the operation (i.e. the 24-hour authorisation) and the stop and search of specific persons [44] – [46].
  • Compared to the stop and search power that was challenged in Gillan, the grounds for making an authorisation under section 60 are much more tightly framed [44].
  • The importance of the requirement “to give reasons for both the authorisation and for the stop” [47].
  • The combination of safeguards “should make it possible to judge whether the action was necessary in a democratic society … for the prevention of disorder or crime” [47] and [41].

Comment

This judgment reaffirms the domestic courts’ acceptance of suspicionless stop and search powers but it is unlikely to be the final word on section 60’s compatibility with article 8. An application to Strasbourg seems likely for several reasons.

First, in Gillan, the ECtHR was primarily concerned about the broad discretion conferred upon individual police officers permitted to stop and search without reasonable suspicion, and the lack of a necessity requirement in authorising recourse to this power. Given that these features are also inherent to section 60, it is far from certain that Strasbourg would accept that the safeguards outlined by the Supreme Court are capable of meeting these concerns.

Second, following Gillan it had been thought that suspicionless stop and search powers were not capable of being Convention compliant. The Supreme Court interpreted the ECtHR’s decision in Colon as a rejection of this view. Colon is, however, ambiguous as to the level of discretion afforded to police officers by the impugned Dutch provision and it was decided on the narrow issue of whether the Convention requires prior judicial authorisation for such powers. Strasbourg may need to clarify its decision in Colon and its implications for Gillan.

It is also notable that, as in Beghal, the Supreme Court highlighted the benefits of random and unpredictable searches [41]. This seems likely to precipitate further debate on whether the courts may properly consider the benefits/efficacy of a measure when assessing whether it is in accordance with the law.

Having refused permission to appeal on article 14, the Supreme Court did not grapple with concerns surrounding the disproportionate use of section 60 against black people and other ethnic minorities. By way of illustration, Ministry of Justice statistics for 2010/11 show that 40.6% of the people searched under section 60 were black, 26.3% were white, and 22% were Asian. An Equality and Human Rights Commission paper found that in 2010/11 black Londoners were 11 times more likely to be subject to section 60 searches than white Londoners. Such data might be thought to establish a prima facie case of indirect discrimination, which would require explanation and justification under article 14 (following DH v Czech Republic (2007) application no. 57325/00). The domestic courts did not engage with this issue and it may be apt for consideration by Strasbourg.

Finally, during almost five years of litigation, improvements have been made to the framework governing the use of section 60, including amendments to PACE Code A and the adoption of a non-mandatory best use scheme. There has also been a momentous decline in the use of section 60 in the Metropolitan Police area, from 90,809 searches in 2009/10 to 213 searches in 2014/15. Regardless of its outcome, it seems likely that Mrs Roberts’ case has contributed to these changes.