Reference: Application no. 4158/05
Court: European Court of Human Rights
Judge: Garlicki P, Bratza, Bonello, Mijovic, Hirvela, Bianku, Vucinic
Date of judgment: 12 Jan 2010
Summary: Terrorism Act 2000 - ss.44 and 45 - Stop and search powers - Whether disproportionate interference with Article 8 ECHR - Right to respect for privacy - Whether in accordance with the law
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Both applicants had been stopped and searched near an arms fair under s.44 of the Terrorism Act 2000 for articles which could be used in connection with terrorism. Nothing incriminating was found on either applicant. Both applicants complained to the courts but the High Court and Court of Appeal ruled that the exercised of the powers by the police were legitimate given the nature of the terrorist threat against the UK. The applicants’ appeals were unanimously dismissed by the House of Lords.
Under the 2000 Act a senior police officer may issue an authorisation if he or she considered it “expedient for the prevention of acts of terrorism”. The search can be carried out by a constable in a public place regardless of whether he or she has any grounds for suspicion.
Whether the authorisations and the exercise of stop and search powers under ss. 44 and 45 constituted a disproportionate interference with the applicants’ rights under Article 8.
The powers under ss.44-45 were neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. They were not therefore “in accordance with the law”, in violation of Article 8:
(1) There was no requirement at the authorisation stage that the stop and search be considered “necessary” and no assessment of the proportionality of the measure.
(2) The breadth of the discretion conferred on the individual police officer was unacceptable. The sole proviso was that the search be carried out for the purpose of looking for articles which could be used in connection with terrorism, with no requirement to demonstrate the existence of any reasonable suspicion. There was a clear risk of arbitrariness and discrimination.
(3) The availability of judicial review or an action in damages was not an adequate safeguard. It was likely to be difficult if not impossible to prove that the power was improperly exercised by a police officer.
A powerful judgment from Strasbourg. With respect to Article 8, the Court rejected the government’s argument that a superficial search undertaken in a public place could not amount to an interference with an individual’s right to privacy. Building on dicta from Peck v UK that certain incidents which take place in public can still fall within the ambit of Article 8, it held that “Although the search is undertaken in a public place, this does not mean that Article 8 is inapplicable. Indeed, in the Court’s view, the public nature of the search may, in certain cases, compound the seriousness of the interference because of an element of humiliation and embarrassment.”
Home Secretary Alan Johnson said that the Home Office is to seek referral of the case to the European Court’s Grand Chamber.