Gillan, R (on the application of) v. Commissioner of Police for the Metropolis & Anor

Facts

A section 44 authorisation was in force for the area of London in which an arms fair was held. The claimants, a student on his way to a demonstration and a journalist, were stopped and searched by police officers. Nothing was found, they were not arrested, and each was detained for a short time.

History

The Divisional Court and the Court of Appeal rejected the claim, and the claimants appealed to the House of Lords.

Issue

Whether the authorisation and the use of the powers under sections 44 and 45 of the Terrorism Act 2000 was lawful, in particular where no reasonable suspicion was required, and whether the stop and search engaged or breached Articles 5, 8, 10 or 11 of the European Convention on Human Rights.

Held

Appeal dismissed. The powers had been lawfully authorised and exercised, and the stop and search did not infringe the Convention rights of the claimants.

Ratio

• Sections 44 and 45 of the Terrorism Act 2000 allow an officer to stop and search a person in an authorised area without reasonable suspicion, but only for the purpose of searching for articles of a kind that could be used in connection with terrorism.
• A brief stop and search of this kind was not a deprivation of liberty within Article 5.
• The search did not breach Article 8 or the rights of expression and assembly, since any interference was in accordance with law as it was sufficiently clear and subject to safeguards, and was proportionate to the aim of preventing terrorism.

The judgments

Key reasoning

• Parliament had chosen to dispense with the requirement of reasonable suspicion because suspicion would hinder the search for terrorists who were not easily identified, and the court respected that policy choice.
• The legislation contained safeguards, namely the requirement of an authorisation by a senior officer and confirmation by the Secretary of State, and the court considered that the power was not used arbitrarily.
• The restraint of a person for a short period during a search was not a deprivation of liberty within Article 5, and the level of intrusion was too low to engage Article 8, or if it did was justified.

Where it fits in the module

In the study of civil liberties and counter-terrorism, the case sets the trade-off between security and individual freedom. It raises questions about the rule of law when a power is given without the usual safeguard of reasonable suspicion, and about how far courts defer to Parliament and the executive when national security is invoked.

Criticisms

• A power exercisable without reasonable suspicion leaves the decision to search to the unstructured discretion of an officer, which creates a risk of arbitrary and discriminatory use that statutory safeguards on authorisation did not cure.
• Holding that a search did not engage Article 8 was a narrow view of private life, and the European Court of Human Rights later held that the power breached Article 8 because it was neither sufficiently circumscribed nor subject to adequate legal safeguards.
• The reliance on the authorisation procedure as a safeguard is weak, since in practice authorisations were renewed continuously for an area as large as the whole of Greater London, and judicial review of the authorisation was largely deferential.