Searching questions
R (Gillan) v Commissioner of Police of the Metropolis [2006] UKHL 12


In this case, the House of Lords had to consider the compatibility of the powers under sections 44 and 45 of the Terrorism Act 2000 with the European Convention on Human Rights.


These provisions empowered the police to give an authorisation for a 28-day period to allow constables to search for 'articles of a kind which could be used in connection with terrorism', and provided that the power might be exercised 'whether or not the constable has grounds for suspecting the presence of articles of that kind'.


The Metropolitan Police commissioner had in fact given repeated authorisations - which the home secretary had confirmed - continuously since the Act came into force in February 2001. The claimants had been stopped and searched on their way to an arms trade fair in London.


The House of Lords gave short shrift to the claimants' argument that the power to grant an authorisation had not been intended to allow repeated authorisations over a massive geographical area such as London - an approach more targeted in both time and space is what was envisaged when this wide-ranging power was passed, said the claimants.


Having disposed of this point, the next issue was whether there had been any interference with the individuals' convention rights. Lord Bingham, with whom the other members agreed, was unimpressed with this aspect of the claim - any stop for the purpose of search was too brief to amount to detention and, if it were detention, it was justified to secure the fulfilment of an obligation prescribed by law, namely the obligation to submit to a search and not to obstruct a constable while he conducted it. A superficial search did not amount to an interference with the right to respect for private life and, said the judges, if properly used, it would be hard to conceive of the power interfering with freedom of expression or assembly, but any such interference would be justified.



This approach is too dismissive of the right to respect for private life. Stopping and searching someone - even a limited search - clearly invades privacy. The limited nature of the search is a factor to be taken into account when assessing the proportionality of its justification, but the judges' approach suggests that even a wholly unjustified superficial search would not interfere with the right to respect for private life at all. Clearly, that cannot be right. And asserting that proper use of the power would not interfere with free speech or assembly appears to assume what is in issue - for example, was the use of section 44 to stop Walter Wolfgang (the heckler at the last Labour Party conference) a proper use, even though it interfered with his freedom to attend the gathering?



But the main issue in the case was whether the use of sections 44 and 45 met the requirement that interference with convention rights must be 'lawful' or 'in accordance with the law'. It is well established that this means that the operation of the law must be accessible and foreseeable, and there must be adequate safeguards against abuse or arbitrariness. For the appellants, the law did not meet these requirements, because the existence of these continuous authorisations was not made public and because the law did not contain adequate safeguards.


The Lords rejected these contentions. For Lord Bingham, lawfulness did not require publication of the existence of the authorisations; others added that such publicity would reduce their effectiveness, although it is now public knowledge. The existence of a legal power to interfere with convention rights should be known to the public, and it is difficult to imagine how this could do other than discourage the carrying of articles that might be used for terrorist purposes.


If there is to be an element of surprise, it will relate to the occasions on which the police might choose to use the power, not to its existence at all. People should know that they might be subject to spot checks, even if they are not suspects, so that they will more readily comply with them.


It is also worrying that the Lords were prepared to accept that this power met the requirement of lawfulness. Although it specified the purpose for which it might be exercised - searching for articles that could be used in connection with terrorism - this is of the widest import. More particularly, a constable is not required to have any grounds for suspecting that a person is carrying such articles.


Lord Bingham put it this way: 'It is true that he need have no suspicion before stopping and searching a member of the public. This cannot, realistically, be interpreted as a warrant to stop and search people who are obviously not terrorist suspects, which would be futile and time-wasting. It is to ensure that a constable is not deterred from stopping and searching a person whom he does suspect as a potential terrorist by the fear that he could not show reasonable grounds for his suspicion.'


This passage departs from Lord Bingham's usual clarity. Does the constable have to suspect the individual or not? The first sentence asserts he need have no suspicion. The second suggests that it would be unlawful to search someone who is 'obviously not' a terrorist suspect, although whether it must be obvious to the constable or the judge is unclear. The third sentence, on the other hand, appears to suggest that the constable should have a suspicion, even if it is not one for which he can show reasonable (or any?) grounds. It is difficult to make out from this what is intended, although the section itself appears to envisage that it is lawful to undertake spot checks without any suspicion whatsoever.


Most worrying, however, are the passages in the speeches of other members of the judicial committee sanctioning racial profiling for search purposes. Lord Brown said it was 'inevitable... that so long as the principal terrorist risk against which use of the section 44 power has been authorised is that from al-Qaeda, a disproportionate number of those stopped and searched will be of Asian appearance'. The House of Lords had held in R (European Roma Rights Centre) v Immigration Officer at Prague Airport [2004] QB 811 (overruling Lord Justice Simon Brown) that targeting Roma for immigration questioning had been racial discrimination. He conceded that he was unable to find a satisfactory reason for what he described as his 'common sense' view.


If one is looking for someone who has been identified as appearing to be of a particular racial group, it would be silly to stop those not of that group; likewise, if a particular individual arouses suspicion, regardless of his racial group. But it is racial discrimination to target a person for random search solely because of characteristics that his group is said to share, where there is no particular evidence in respect of the individual beyond the race to which the authorities perceive him to belong. This principle is particularly important where police are empowered to search without having to show any suspicion whatsoever, so that the checks on their power are limited.


Lord Brown's assertion takes us down a dangerous path. After the Birmingham pub bombing, police targeting of Irish people not only led to a number of miscarriages of justice but also fuelled understandable and entirely predictable resentment in the Irish community. Avoiding discrimination is about treating people as individuals and avoiding stereotypical assumptions based on supposed characteristics of the group. The Lords got the law right in Roma Rights, and this attempt to reverse the position is to be deprecated, since the issue was not squarely before the judges and full argument was not addressed to it.


By Stephen Grosz, Bindman & Partners, London