Gillan & Anor, R (on the application of) v Commissioner of Police for the Metropolis & Anr [2004] EWCA Civ 1067

[2004] EWCA Civ 1067Case No C1/2003/2535
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 29 th July 2004
Before
THE LORD CHIEF JUSTICE OF ENGLAND AND WALESLORD JUSTICE BUXTONLADY JUSTICE ARDEN DBE
Between
THE QUEEN ON THE APPLICATION OFAppellantsGILLAN & ANRAppellantTHE COMMISSIONER OF POLICE FOR THE METROPOLIS & ANRRespondent
MR RABINDER SINGH QC & MR RAJIV MENON(instructed by Liberty) for AppellantsMR PHILIP SALES & MR PHILIP COPPEL for RespondentMR JOHN MCGUINNESS QC(instructed by Metropolitan Police Directorate of Legal Services)Hearing Hearing dates : 12 th– 13 th July 2004
JUDGMENT
[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. (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. (a) the pedestrian; (b) anything carried by him. (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; (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. (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]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: i) the requirement for the authorisation by a senior police officer and its confirmation by the Secretary of State; ii) the limited life of the authorisation and the requirement for it to be regularly renewed; and iii) 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

The Sequence of Events

[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

The Decision of the Court Below

[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 disproportionateinterference 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 a) 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 b) 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 c) 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 “advantageous” or “suitable to the circumstances of the case” should have taken into account more fully the following wording, namely “for the prevention of acts of terrorism”. Fundamental rights were being overridden by the wide interpretation of the “general” word “expedient”. The Fourth Ground d) Here it is contended that the Divisional Court failed to construe sections 44 to 47 of the 2000 Act in accordance with the requirements of section 3 of the Human Rights Act 1998 so that it would be compatible with rights under the ECHR, in particular Articles 5, 8, 10 and 11. The Fifth Ground e) This ground is also based on the Human Rights Act 1998. It is suggested that the Divisional Court erred in concluding that the authorisation, its confirmation and the use of the stop and search powers thereunder were prescribed by law and constituted a disproportionate interference with the appellants’ rights under Articles 5, 8, 10 and 11. The appellants contend that 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 making of the confirmation and the extent of the authorisation were not made public and it was only when Liberty started to ask questions that its existence became known. The citizen could do nothing to “regulate their conduct to avoid being stopped and searched”. In addition, the appellants submit that the authorisation and the use of powers under it, against peace protestors, are not a proportionate means of achieving the legislative purpose of preventing acts of terrorism. Interference with human rights had not been minimised. The power was being used as if it were “part of day-to-day policing on the streets of London”. The Sixth Ground f) The contention under this head is that the Divisional Court failed to give any consideration to Article 15 of the ECHR and the power of the United Kingdom to take measures to derogate from its obligations in times of public emergency threatening the life of the nation. Had there been such an emergency, Parliament would and should have made an appropriate derogation rather than passing “legislation in a vague and overbroad manner”. It is also argued that if there were really a public emergency threatening the nation, Parliament, as is permitted by Article 15 would have derogated from its obligations under the ECHR in order to address such an emergency. If no such derogation is made, then the 2000 Act should be construed very narrowly and in accordance with the ECHR.

Conclusions

[27]To resolve the issues to which this appeal gives rise it is important to have clearly in mind the different levels at which the complaints need to be considered. These levels are as follows: i) that of the 2000 Act. What is suggested is that section 44, in view of its subject matter; should be construed restrictively. We will describe this as the “ Interpretation Question”; ii) that of the Assistant Chief Constable (here Mr Veness) who in his discretion granted the authorisations. We will describe this as the “Authorisation Question”, iii) that of the Secretary of State, in exercising his discretion to confirm the authorisations. We will refer to this as the “Confirmation Question”; iv) that of the officer (here Commander Messinger) who was in charge of the police officers who were to exercise the power to stop and search. We will refer to this as the “Command Question”; and v) that of the officers who respectively stopped and searched each of the appellants. We will refer to this as the “Operational Question”.[28]Consideration of the issues at each level has in common the need to take into account the nature of the statutory power granted by the 2000 Act and the impact on such a power of both the common law and the Human Rights Act 1998. Random searching is a significant interference with the rights of the individual and, if challenged, requires those responsible to establish that it is legally justified.[29]A number of the appellants’ contentions are couched in terms that are critical of the Divisional Court’s reasoning. We are not impressed by that criticism, which we consider is based on a misreading of the judgment. However, we do not propose to deal expressly with the criticism; what we are concerned with is what is the right answer to the issues and as we will express our views as to this, our views on the specific criticisms of the approach adopted by the Divisional Court will not advance this appeal.

The Interpretation Question

[30]The interpretation of the 2000 Act is a matter of law for the courts. There is no question of this Court showing deference or respect to the views of the respondents because of the subject matter of the legislation. On the contrary, as the statutory power enables the appropriate senior police officer to authorise interference with the freedom of the citizen, backed by a criminal sanction to support compliance, the power has to be restrictively construed. However, this does not assist the appellants, since even adopting a restrictive approach to the construction there is no justification for giving other than the ordinary meaning to the language of section 44 and section 45 of the 2000 Act. It 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. The power is only to be used for a single specified purpose for a period of an authorisation granted by a senior officer and confirmed by the Secretary of State. Furthermore, the authorisation only has a limited life unless renewed.[31]We do not find it surprising that the word “expedient” should appear in section 44(3) in conjunction with the power to authorise. The statutory scheme is to leave how the power is to be used to the discretion of the senior officer. In agreement with the Divisional Court, we would give the word its ordinary meaning of advantageous. It 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.[32]Interpreted in this way, sections 44 and 45 could not conflict with the provisions of the Articles of the ECHR. If those Articles were to be infringed it would be because of the manner of the exercise of the power, not its existence. Any possible infringement of the ECHR would depend on the circumstances in which the power that the sections give is exercised.

The Supervision by the Court

[33]This brings us to the general approach that the courts should adopt when reviewing the exercise of a power which is provided by Parliament for the prevention of terrorism. Possible terrorist activities create unusual difficulties for the authorities who have the responsibility for preventing them happening. Quite apart from the serious direct damage that they can cause, there is the continuing damage that can result from the fear of the public of further incidents. In addition, the range and nature of the terrorist incidents that are possible increase the difficulty in taking preventive action. For this reason, the courts will not readily interfere with the judgement of the authorities as to the action that is necessary. They will therefore usually not interfere with the authorities’ assessment of the risk and the action that should be taken to counter the risk.[34]This does not mean the courts do not have an important role in supervising the decisions and actions of the authorities. “Although terrorism necessarily changes the context in which the rule of law must operate, it does not call for the abdication of the law.” (In the Matter of an Application under section 83.28 of the Criminal Code 2004 SCC 42, para. 6 (per McLachlin CJ and Iacobucci, Major and Arbour JJ, with whom Bastarache and Deschamps JJ agreed).) Courts can ensure the authorities do not stray beyond the four corners of the power they have been given. They can ensure that the power is used only in furtherance of the purpose for which the power was provided and they can ensure its use is necessary and proportionate.[35]Avoiding the use of the word “deference” because of its inaccurate connotations, the position is that, while the courts will respect the authorities’ view as to matters of security, this does not mean that the court has no role as to proportionality. What action is or is not proportionate is still very much an issue for the judgment of the court. The court will usually place in the scales the authorities’ evaluation of the action needed to avoid the terrorist incident as against the court’s assessment of the effect on the member of the public. But the ultimate determination of what is or is not proportionate still rests with the court. This task has to be performed in accordance with the approach indicated by Lord Steyn in R (Daly) v Home Secretary [2001] 2 AC 532 at p.547.

Articles 5, 8, 10 and 11

[36]In addition, the Court can and will here have to determine whether there is any infringement of the Articles of the ECHR relied on by the appellants. On the facts of these appeals the question arises how far Articles 5, 10 and 11 can assist the appellants. Here, Article 5 creates a difficulty of a more general nature. When a stop and search takes place the individual is detained in the sense that, if he does not stop and permit the search, the individual will commit an offence but if the process is carried out with due expedition it should only last minutes. Does such a process constitute detention within the meaning of that term in Article 5? If it does many activities that are routine today will be within the reach of Article 5, including the search of bags on entering certain public premises and security checks at airports.[37]Whilst, under the ECHR, an arrest clearly triggers Article 5 protection, the exercise of police powers that fall short of arrest but nonetheless prevent an individual from doing what he or she likes, falls into a grey area. Article 5 is concerned with the deprivation of liberty and not with mere restrictions on freedom of movement. In line with its previous approach in Engel v Netherlands (1976) I EHRR 647, para. 58, in Guzzardi v Italy, (1980) 3 EHRR 333, at para. 92 of its judgment the European Court of Human Rights (the “EctHR”) reminded itself that Article 5 contemplates the “physical liberty of the person” and that its aim is to ensure that no one should be deprived of this liberty in an “arbitrary” fashion. The Court recognised that mere restrictions on liberty of movement are governed by Article 2 of Protocol 4 which provides that:
“Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.”
[38]However, this distinction between “deprivation of liberty” and “deprivation of liberty of movement” can prove very difficult to make; as the court noted in Guzzardi, at para. 93 of its judgment:
“The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5 depends.”
[emphasis added][39]In determining whether the level of restraint involved amounts to a detention within the meaning of Article 5, the Court stated that:
“The starting point must be [the] concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question.”
[emphasis added][40]Based on these criteria, cases will, depending on their specific facts, fall on one side or the other of the “dividing line”. Lester and Pannick, Human Rights Law and Practice (2004), p.163, provides a number of examples of what will constitute an infringement of Article 5. In Guzzardi itself, the EctHR held that a suspected mafia member was deprived of his liberty during one phase of his detention, when he was made the subject of a compulsory residence order requiring him to live on a small island subject to strict police supervision. In Engel v Netherlands the EctHR held that “strict arrest” imposed on soldiers for disciplinary offences amounted to a deprivation of liberty despite the different standards that apply to army personnel. In the unreported case of Hojemeister v Germany, the Commission held that detention incidental to a lawful search was not sufficient to trigger Article 5 protection.[41]Pannick and Lester [2004:164] note that “[d]etention does, however, depend upon the intention of the authorities”. Accordingly, where the police intend merely to question a suspect without detaining him, Article 5 will not apply. In X v Germany 88 19/79: 24 DR 158 (1981) at 161, the Commission decided that the object of police action was not clearly to deprive those involved of their liberty; the police action was:
“… simply to obtain information from them about how they obtained possession of the objects found on them and about thefts which had occurred in the school previously.”
The Commission therefore held that a 10 year-old girl who was questioned at a police station for two hours without being arrested, locked into a cell or formally detained was not deprived of her liberty for the purposes of Article 5.[42]On the other hand, Professor Feldman, in Civil Liberties and Human Rights in England and Wales (2002), p.304, recognises that, at least prima facie, brief detainment of the type associated with stop and search powers could fall within the ambit of Article 5:
“Where a person is briefly detained on the street or at a customs post in order to check for stolen, prohibited, or dutiable goods, there is a deprivation of liberty, albeit only for a short period: the person is not free to move anywhere without the agreement of the officer until the procedure is complete.”
[43]He does note, however, that the detainment would only, in the general course, last a very short time, and therefore makes the qualification that:
“Under ECHR Article 5(1) and the Human Rights Act 1998, a deprivation of liberty does not take place if someone is detained for a very limited time. Searches of the person falling short of arrest entail a detention for only a short period.”
[44]In the current appeal it is not essential to decide whether the stopping and searching of the appellants, using the powers vested in the police under the authorisation pursuant to section 44 of the 2000 Act, fell within Article 5 because, as we will see, it was justifiable under Article 5(1)(b) as detention in order “to secure the fulfilment of [any] objective prescribed by law”.[45]However, if this point had to be decided, we would conclude that the stop and search powers should not be considered to constitute an infringement of Article 5. We agree with Sir Gerald Fitzmaurice, who in a dissenting opinion in Guzzardi at para. 6, urges that, in the light of the existence of Article 2 of Protocol 4, the ambit of Article 5 should be construed strictly: “The existence of [Article 2 of Protocol 4] shows either that those who originally framed the Convention on Human Rights did not contemplate that [Article 5] should go beyond preventing actual deprivation of liberty, or extend to mere restrictions on freedom of movement […] The resulting picture is that [Article 5] of the Convention guaranteed the individual against illegitimate […] imprisonment, or confinement so close as to amount to the same thing – in sum against deprivation of liberty stricto sensu but it afforded no guarantee against restrictions […] falling short of that”.[46]Taking into account: i) the likely limitednature of any infringement of Article 5 in any normal stop and search; ii) the fact that the main aim of a stop and search will not be to deprive an individual of his liberty but rather to effect a verification of one form or another (for example, the rapid verification that the person stopped is not carrying articles of a kind that could be used in connection with terrorism); and iii) Article 2 of Protocol 4 which, in dealing specifically with the right to liberty of movement, gives some indication of the intended scope of Article 5, the better view is that a short detainment pursuant to a stop and search power will normally fall outside Article 5.[47]The application of the other Articles is more straightforward. The first respondent was prepared to accept that Article 8 applies to the stop and search processand we accept that this is the correct approach. However, we do not consider that Articles 10 and 11 could be invoked. This is because insofar as this complaint relates to the general powers created by the terms of the 2000 Act and of the authorisations given under it, (see para. 26(d) above) those powers are, by section 45(1)(a) of the 2000 Act, strictly limited to searching for articles of a kind which could be used in connection with terrorism. So exercised, and in particular in view of the very limited powers of detention that are created by section 45(4), there is nothing in them that threatens either the right of freedom of expression or the right of assembly. Furthermore, the power if properly exercised by the police would not have any chilling effect on the rights protected by Articles 10 and 11.[48]The case might be different if the powers, ostensibly granted for the limited purposes of the 2000 Act, were in fact used, wrongly, in order to control or deter attendance at demonstrations. The evidence of the two appellants, that we have recorded at para. 16-17 above, gives some cause for concern in those respects, particularly in view of the alleged seizure from the first appellant of papers relating to the demonstration, and the alleged prevention of the second appellant from filming. However, as we indicate in paras. 56-57 below, those issues were not tested in these proceedings, because the thrust of the appellants’ case, and thus the response of the respondents, was directed primarily at the general conformity of the legislation with articles 10 and 11: on which issue, as we have said above, the legislation itself cannot be criticised.[49]The appellants suggest that the exceptions to Article 5, 8, 10 and 11 cannot be relied upon because either what took place was “not in accordance with a procedure prescribed by law” or “not in accordance with the law”. This is because the law was not published and was arbitrary. We do not accept that this is the position. “The law” that is under criticism here is the statute, not the authorisation. That law is just as much a public record as is any other statute. And the provisions are not arbitrary in any relevant sense. Although the police officer does not have to have grounds for suspecting the presence of suspicious articles before stopping a citizen in any particular case (section 45(1)(b)), he can only be authorised to use those powers for limited purposes, and where a decision has been made that the exercise of the powers is expedient for the serious purpose of the prevention of acts of terrorism (section 44(3)). The system, so controlled, cannot be said to be arbitrary in any sense that deprives it of the status of “law” in the autonomous meaning of that term as understood in Convention jurisprudence. In addition, while 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 Authorisation and Confirmation Questions

[50]We turn to the authorisations made by Mr Veness and their confirmation by the Secretary of State. The scale of terrorist incidents around the globe is so well known it hardly required evidence to establish that this country is faced with a real possibility of terrorist incidents. However, the evidence surveys the history of global and national incidents (connected with the problems in Northern Ireland) that have already occurred. In such a situation 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, that is neither necessary nor proportionate (as those terms are used in an ECHR context) into the human rights of those who are searched in the absence of some identified specific threat. The 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.[51]Does the fact that we now know what has been taking place is an extensive blanket or “rolling” programme alter the situation? We do not think so. The evidence justifying this way of using the power could be more satisfactory, but in view of the evidence provided by the Secretary of State as to the process of confirmation, we are satisfied that the rolling programme is justified in the present situation. It did no more than enable the commander in a particular area to have the powers available when this was operationally required without going back to the Secretary of State for confirmation of a particular use. At this level there is nothing to support the suggestion of the appellants that authorisation and confirmation were not being granted and obtained for the purpose identified by the 2000 Act but rather for day-to-day policing. It is clear that there is no ground on which it would be appropriate for a court to interfere with or even criticise the authorisation and confirmation programme.

The Command Question

[52]This is confirmed by the evidence that is available relating to the use of the authorisation and confirmation in conjunction with the arms fair that led to these proceedings. Having regard to the nature of the fair, its location near an airport and a previous site of a terrorist incident (connected with the Northern Ireland problems) and the fact that a protest was taking place, Command Messenger was entitled to decide that section 44 powers should be exercised in connection with the arms fair.[53]The Commander’s responsibilities in relation to section 44 did not end with his designating the fair as an appropriate event in connection with which stop and search powers should be used. Indeed, we do not believe for a moment that he would regard it as all that was required. We expect that he would agree with us that officers who were to exercise the powers should receive carefully designed instructions (or if this had been done previously, a reminder) on their use. The evidence as to what happened is lamentable. There is reference to the officers being told they could use their powers and a slide being shown. There is little else, and there is no evidence of an explanation being given to the officers who would be dealing with the public as to the limits on their powers and as to how the powers should be deployed.[54]The inadequate nature of the evidence (of which the Divisional Court also complained without any attempt to rectify the position being made for the appeal, possibly for technical reasons) is particularly surprising because this is clearly a test case. It is important that, if the police are given exceptional powers (such as those under consideration here) because of threats to the safety of the public, they are prepared to demonstrate that they are being used with appropriate circumspection. This is in addition to the general obligation on parties conducting judicial review proceedings to do so openly or, as it has been said by Lord Donaldson of Lymington MR, with the cards face up. We appreciate that in this area discretion as to disclosure needs to be exercised so that information that could be operationally prejudicial is not disclosed. However, this consideration would not apply to making clear that proper instructions were given to officers exercising the powers. While it was legitimate to use the power if those doing so were made properly aware of their responsibilities, it is quite a different matter if the basic requirements of good administration were being neglected.

The Operational Question

[55]We received no satisfactory explanation from the first respondent as to the inadequacies of the evidence. However, it was clear to us that part of the explanation could be that while the nature of the appellants’ case has changed as the proceedings progressed, it has been, as Mr Rabinder Singh accepts, focused on the issues of principle and not on the circumstances of the individual appellants. It was no doubt also recognised that proceedings for judicial review are not the correct forum in which to investigate factual issues. Nonetheless, it is still regrettably the position that in answer to the respondents’ statements of what happened to them, the only response is the notes made by the police officers. We are without any statements from the officers.[56]The onus is on the first respondents to show that the interference with the appellants of which complaint is made was lawful. It is not possible to say that the onus has been discharged on the evidence before us. On the appellants’ evidence remarks were made that suggest that the powers could have been used in order “to police” the protest. This would not be a lawful use of the power. We have also pointed out in para. 49 above to the potential evidential difficulties under Articles 10 and 11 that are presented by some parts of the appellants’ evidence. As we have said, the form of these proceedings does not permit the resolution of those matters; but we feel sure that the respondents will wish to review very carefully those aspects of this operation, and of the briefing that the officers on the ground received before performing their powers and duties under the Act. This is the sum of what can be said on the limited evidence available.

Article 15

[57]Lastly, we should, for the sake of completeness, deal with Article 15. The appellants rely on Article 15. The argument is that if there is a terrorist or public emergency, this country could have derogated from the ECHR to the extent that was justified by the emergency. This did not happen so there cannot be an emergency that justifies the use of stop and search powers. This argument is based on a logical fallacy. If, as the respondents contend and we accept, the use of powers given by section 44 does not necessarily involve any violation of the Articles relied on that is not capable of being justified, it is unnecessary to take advantage of Article 15 as long as the power is used in a manner that does not offend the ECHR.

Remedies

[58]Mr Rabinder Singh accepted that, in view of the history of these proceedings, the only appropriate remedy to which the appellants could be entitled would be a declaration. We are prepared to hear the parties on the question of relief. However, it may be of assistance if we indicate that our provisional view is that this judgment is best left to speak for itself and that no order should be made on the appeal either as to the merits or costs.

Cited in 8 later judgments