You Have The Right – To Be Searched Without Being Under Suspicion

In 2010, North London resident Mrs Roberts failed to pay her bus fare, and was caught by an inspector. She refused to give her real name, and held on to her bag to prevent being identified and fined. The inspector therefore called the police.

At that time, certain London police districts had given themselves extra stop and search powers, following the recent London Riots. Under  Section 60 of the Criminal Justice & Public Order Act (1994), a senior police officer can, acting upon intelligence that there is a credible risk of violence due to “offensive weapons,” and acting reasonably and proportionately to to the threat to public order and safety, grant officers the power to stop and search people for weapons such as knives in a very specific area, for no longer than 24 hours. Officers in that area during that time can stop and search those they believe may be carrying weapons, and do not necessarily need to believe that someone is acting suspiciously to stop them.

Following the London Riots, Superintendent Barclay in Haringey authorised such a Section 60 order. This was done in accordance with correct procedure and the law.

With the s60 order in force at that time and place, when PC Jacqui Reid investigated, the matter carried on as previously. Mrs Roberts refused to allow her bag or herself to be searched, and refused to give her real name to the police. With the police intelligence in mind, and with the additional s60 powers, PC Reid persisted. From PC Reid’s perspective, Mrs Roberts was acting suspiciously, and could potentially be carrying a weapon in an area known for weapons and gang violence. When Mrs Roberts sought to walk away from the questioning, she was arrested for her non cooperation.

A search at a police station revealed no weapon – but found bank cards that established her identity. Further suspicion was raised by bank cards on her person under other names. She was cautioned for handling stolen goods: but the caution was dropped when it was established that the bank cards were in her maiden name, and her son’s.

She was later released, and all the charges dropped. Mrs Roberts then proceeded to take the police to court, alleging a breach of human rights. The rights allegedly breached were Article 5, Article 8 and Article 14. The Article 5 challenge (right to liberty of person) was rejected, as was the Article 14 challenge. Article 14 concerns discrimination; however, the Court of Appeal found that there was no discrimination on the grounds of race in the stop and search (Mrs Roberts is of African – Caribbean ancestry). It was the Article 8 (right to private life) claim that was interfered with – but the question before the court was whether that was “in accordance with law” under the Police & Criminal Evidence Act (1984) (PACE) and the Criminal Justice & Public Order Act (1994). The police argued that the search was carried out in line with the law, and with the proportionate and legitimate aim of preventing crime.

That was the matter before the Supreme Court in December 2015. Lady Hale gave a comparatively brief verdict, the only speech given. In that, she sets out and defines the exact nature of the s60 powers, and admits that this is the first time that s60 has been brought before the Supreme Court. However, there are two other similar cases relating to police stop and search powers that are referred to. The first case is R (Gillan) v Commissioner of Police of the Metropolis [2006] UKHL 12; [2006] 2 AC 307, which concerned comparable powers in Sections 44 to 46 of the Terrorism Act (2000) – which subsequently was heard before the European Court of Human Rights in Strasbourg. The second case is Beghal v Director of Public Prosecutions [2015] UKSC49.

In Gillan, a comparable emergency and temporary stop and search power to s60 was under debate. The Supreme Court found that, in this case, that power had been exercised proportionately, legitimately, and without any personal bias or discrimination. The Strasbourg court, by comparison, held that the nature of the powers meant that there could be a risk of misuse and discrimination by police officers. Both cases debated what reasonable and suspicions grounds there could be to warrant such a search.

In Beghal, the powers under debate concerned Schedule 7 of the Terrorist Act (2000). Under those powers, relevant authorities can detail passengers at ports and airports for a limited time if there are reasonable grounds for suspicion. Here, the Supreme Court found that French citizen Sylvie Beghal (whose Algerian  husband had been arrested and jailed in France for terrorism offences). Once again, the legality and proportionality of the powers was under debate – as was the risk of discrimination, and how a reasonably suspicious person could be defined without risking discrimination. Again, the Supreme Court found that the Schedule 7 powers had been used properly, with the correct oversight, and without any breach to her human rights. By contrast, it must be noted that January 2016 saw the Court of Appeal ruling that a Schedule 7 stop of Brazilian journalist David Miranda was actually  in contravention of human rights.

Indeed, of such “suspicionless” stops, particularly under s60, Lady Hale had remarked earlier that

(3) It is now common ground that the power of “suspicionless”

stop and search which [s60] contains is an interference with the right to respect for

private life, protected by article 8 of the European Convention on Human Rights,

although perhaps not at the gravest end of such interferences. It is also common

ground that the power pursues one of the legitimate aims which is capable of

justifying such interferences under article 8(2), namely the prevention of disorder or

crime. The argument is about whether it is “in accordance with the law” as is also

required by article 8(2). In one sense, of course it is, because it is contained in an

Act of the United Kingdom Parliament. But the Convention concept of legality

entails more than mere compliance with the domestic law. It requires that the law be

compatible with the rule of law. This means that it must be sufficiently accessible

and foreseeable for the individual to regulate his conduct accordingly.

In a brief discussion and summary, Lady Hale finds in favour of the Metropolitan Police. Heavily using and citing those two cases, and with supporting police policy and procedure, she clearly finds that there was no breach of Article 8 regarding Mrs Roberts’ stop and search under s60.

Although Lady Hale admits that it is possible for such searches to be conducted improperly, or have a lack of legal basis – this was not one of those cases. Section 60, although there might be human rights issues with it, is perfectly in accordance with domestic human rights law.

Whilst finding so, Lady Hale does have this caveat:

(42) It cannot be too often stressed that, whatever the scope of the power in

question, it must be operated in a lawful manner. It is not enough simply to look at

the content of the power. It has to be read in conjunction with section 6(1) of the

Human Rights Act 1998, which makes it unlawful for a police officer to act in a

manner which is incompatible with the Convention rights of any individual. It has

also to be read in conjunction with the Equality Act 2010, which makes it unlawful

for a police officer to discriminate on racial grounds in the exercise of his powers.

 

There are countless times where the state has erred. Case law is full of challenges brought against the state – in recent years, predominantly on human rights grounds. Again and again the courts have had to device whether a course of action of the state had basis in law, or was conducted in line with the law. Statutory provisions and internal governmental department polices have been dissected in detail in open court to determine that.

If an error has been made by that State – then challenge it. Do not be afraid to take the state to court. The Court of Appeal and indeed the Supreme Court have held both the Executive and the State to account countless times. It is worth consulting with a lawyer if there is a strong belief or evidence that the State has acted improperly or unlawfully. It is possible in many such cases to make a judicial review or similar legal challenge to see whether the state had indeed acted in error.

In a democracy, such a challenge is a legal and moral right. Even the government and the state has to act in accordance with the law Parliament has enacted.

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