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The Fourth Section of the European Court of Human Rights has today unanimously found against the United Kingdom in the case of Gillan and Quinton v United Kingdom (App No 4158/05), rejecting the approach taken by the House of Lords.

The case concerns sections 44 to 47 of the Terrorism Act 2000, which allow the police to stop and search people without reasonable suspicion that they have committed any offence, if a senior police officer gives an authorisation for a particular area. The test is whether the authorising officer ‘considers it expedient for the prevention of acts of terrorism’.  The applicants were stopped and searched by the police while on their way to a demonstration near an arms fair in London. Mr Gillan was riding a bicycle and carrying a rucksack; Ms Quinton, a journalist, was ordered to stop filming despite showing her press cards.

In Gillan v Commissioner of Police ([2006] UKHL 12) the House of Lords held that the applicants had not been deprived of their liberty within the meaning of Article 5 of the Convention. Because the searches were brief and took place on the spot, Lord Bingham considered that the applicants could not be regarded ‘as being detained in the sense of confined or kept in custody, but more properly of being detained in the sense of kept from proceeding or kept waiting.’ This fine distinction did not impress the Court of Human Rights. Focussing on the reality of the situation, it noted that the applicants ‘were obliged to remain where they were and submit to the search and if they had refused they would have been liable to arrest, detention at a police station and criminal charges.’ It felt that ‘this element of coercion is indicative of a deprivation of liberty within the meaning of Article 5.’ [para.57] The Court avoided having to make a final decision on the issue, however, because of its findings on Article 8.

On Article 8, the House of Lords had again held that it was not engaged, Lord Bingham stating that ‘an ordinary superficial search of the person and an opening of bags, of the kind to which passengers uncomplainingly submit at airports’ could ‘scarcely be said’ to show a lack of respect for personal autonomy. [para.28] The Court of Human Rights was ‘unpersuaded’ by this analogy. It considered that the police powers in this case were ‘qualitatively different’ from airport security, since ‘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.’ In the Court’s view, the searches did amount to an interference with the applicants’ Article 8 rights.

This meant that the Government had to show that the interferences were ‘in accordance with the law’ and justified. They failed at the first hurdle. The Court was concerned about the fact that the authorising officer only needs to think that the measure is ‘expedient’, rather than ‘necessary’. It noted the weakness of the 28 day limit for authorisations: the whole of the Metropolitan Police District of London has been under a continuous ‘rolling’ authorisation since the powers were first granted. It was also concerned about the broad discretion given to the individual police officer, particularly in light of the statistics indicating discriminatory use of police stop and search powers against black and Asian people. The Court concluded 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.’ [para.87] This meant that the interference with the applicants’ Article 8 rights had not been ‘in accordance with law’. The Court therefore found a violation of Article 8. It did not go on to examine the complaints under Article 10 (freedom of expression) and Article 11 (freedom of assembly). It did not award damages, holding that the finding of a violation was a sufficient remedy.

This is another example of the Court of Human Rights differing from the highest domestic court on the interpretation of the Convention.  In substance, the applicants successfully appealed a House of Lords decision to the Court of Human Rights.  In such cases, barring exceptional considerations of the type identified in Horncastle, ([2009] UKSC 14) the Supreme Court will have to follow the Strasbourg interpretation of the Convention.

In light of this ruling, the Government will have to carry out an urgent review of the stop and search powers under the Terrorism Act 2000.   The Government has recognised the importance of the ruling.  The Home Office has stated that it is “disappointed” with the judgment.  Policing and Security Minister David Hanson is quoted as saying “We are considering the judgment and will seek to appeal.”  We assume that he has in mind a referral of the case to the Grand Chamber of the Court of Human Rights.

The question of ‘deprivation of liberty’ remains to be resolved. The Court will have to revisit it in future cases against the United Kingdom. This includes Austin, a claim brought by two people who were subject to the controversial police tactic of ‘kettling’ for nine hours at Oxford Circus on May Day 2001, where again the House of Lords held that they had not been ‘deprived of their liberty’ within the meaning of Article 5.