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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Roberts, R (on the application of) v The Commissioner of Police of the Metropolis & Ors [2014] EWCA Civ 69 (04 February 2014) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2014/69.html Cite as: [2014] 1 WLR 3299, [2014] EWCA Civ 69, [2014] 2 Cr App R 6, [2014] WLR 3299, [2014] WLR(D) 50, [2014] HRLR 5 |
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ON APPEAL FROM THE QUEEN'S BENCH DIVISION, DIVISIONAL COURT
MOSES LJ AND EADY J
CO12660/2010
Strand, London, WC2A 2LL |
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B e f o r e :
Vice President of the Court of Appeal, Civil Division
LADY JUSTICE RAFFERTY
and
LADY JUSTICE MACUR
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The Queen on the application of Ann Juliette Roberts |
Appellant |
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- and - |
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The Commissioner of Police of the Metropolis & ors |
Respondent |
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WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
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Official Shorthand Writers to the Court)
Mr Jeremy Johnson QC and Ms Georgina Wolfe (instructed by Weightmans LLP) for the Respondent
Mr James Eadie QC and Mr Ben Jaffey (instructed by Treasury Solicitors) for the Secretary of State for the Home Department
Mr Alex Bailin QC and Ms Alison Macdonald and Ms Katherine Hardcastle(for Liberty, the Intervener)
____________________
Crown Copyright ©
Lord Justice Maurice Kay:
Section 60
"(1) If a police officer of or above the rank of inspector reasonably believes –
(a) that incidents involving serious violence may take place in any locality in his police area, and that it is expedient to give an authorisation under this section to prevent their occurrence,
(aa) that –
(i) an incident involving serious violence has taken place in England and Wales in his police area;
(ii) a dangerous instrument or offensive weapon used in the incident is being carried in any locality in his police area by a person; and
(iii) it is expedient to give an authorisation under this section to find the instrument or weapon; or
(b) that persons are carrying dangerous instruments or offensive weapons in any locality in his police area without good reason,
he may give an authorisation that the powers conferred by this section are to be exercisable at any place within that locality for a specified period not exceeding 24 hours.
…
(3) If it appears to an officer of or above the rank of superintendent that it is expedient to do so, having regard to the offences which have, or are reasonably suspected to have, been committed in connection with any activity falling within the authorisation, he may direct that the authorisation shall continue in being for a further 24 hours.
(3A) If an inspector gives an authorisation under subsection (1) he must, as soon as it is practicable to do so, cause an officer of or above the rank of superintendent to be informed.
(4) This section confers on any constable in uniform the power –
(a) to stop any pedestrian and search him or anything carried by him for offensive weapons or dangerous instruments;
(b) to stop any vehicle and search the vehicle, its driver and any passenger for offensive weapons or dangerous instruments.
….
(5) A constable may, in the exercise of the powers conferred by subsection (4) above, stop any person or vehicle and make any search he thinks fit whether or not he has any grounds for suspecting that the person or vehicle is carrying weapons or articles of that kind."
The facts
The decision of the Divisional Court
"In my view, the question of the arbitrary nature of the power conferred by section 60 ought properly to be considered in the context of Article 8 and not Article 5. In the instant case the claimant was not confined, nor required to move to a police station, handcuffed or restrained. This claimant was only restrained when she sought to resist the exercise of the police power under section 60. Had she not sought to escape, then the detention would have been brief, taking up only such time as was necessary to search for knives or other offensive weapons in her handbag or outer clothing. … I conclude that there was no deprivation of liberty within the autonomous meaning of Article 5.1."
"… authority given under section 60 is in accordance with the law and not arbitrary. The power conferred by section 60 to give authorisation is not unfettered. It is circumscribed by the provisions of section 60 and Code A, and subject to the control of the courts, as this very case demonstrates."
"To those citizens in the particular wards in Haringey at risk from serious gang violence, the possibility of being subjected to a random search must seem a justifiable price to pay for greater security and protection from indiscriminate use of weapons."
"There is no basis whatever for an assertion that the power of stop and search exercised pursuant to the section 60 authorisation in this case … was exercised in a racially discriminatory way or on the basis of racial discrimination … The challenge is to section 60, the legislation itself. There is nothing in the legislation which itself is racially discriminatory."
He proceeded to consider whether the legislation was being used in a racially discriminatory manner. He was critical of the way in which statistics were sought to be deployed in support of the allegation. He added (at paragraph 51):
"It seems to me that the issue as to whether section 60 is being used in a discriminatory manner must await a proper opportunity for the figures to be debated and for the witnesses who speak to these figures to be challenged, unless the statistics are agreed. In those circumstances, I would rule that issues under Article 14, read with Article 8, do not arise in this case, and should not be resolved in these proceedings."
Article 5
"Everyone has the right to liberty and security of person. No-one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law … "
"… the procedure will ordinarily be relatively brief. The person stopped will not be arrested, handcuffed, confined or removed to any different place. I do not think, in the absence of special circumstances, such a person should be regarded as being detained in the sense of confined or kept in custody, but more properly of being detained in the sense of kept from proceeding or kept waiting. There is no deprivation of liberty. That was regarded by the Court of Appeal [2005] QB 388, 406, para 46 as "the better view", and I agree."
"The Court observes that although the length of time during which each applicant was stopped and searched did not in either case exceed 30 minutes, during this period the applicants were entirely deprived of any freedom of movement. They were obliged to remain where they were and submit to the search and if they had refused they would have been liable to arrest, detention at a police station and criminal charges. This element of coercion is indicative of a deprivation of liberty within the meaning of Article 5.1. In the event, however, the Court is not required finally to determine this question in the light of its findings below in connection with Article 8 of the Convention."
I shall have to return to the Court's reasoning in relation to Article 8 later. I do not consider that that requires us to depart from Lord Bingham's approach.
Article 8
"I am … doubtful whether an ordinary superficial search of the person can be said to show a lack of respect for private life. It is true that 'private life' has been generously construed to embrace wide rights to personal autonomy. But it is clear Convention jurisprudence that intrusions must reach a certain level of seriousness to engage the operation of the Convention, which is, after all, concerned with human rights and fundamental freedoms, and I incline to the view that an ordinary superficial search of the person and an opening of bags, of the kind to which passengers uncomplainingly submit at airports, for example, can scarcely be said to reach that level."
"may be given only if the person giving it considers it expedient for the prevention of acts of terrorism."
"First, an authorisation under section 44 … may be given only if the person giving it considers (and, it goes without saying, reasonably considers) it expedient 'for the prevention of acts of terrorism'. The authorisation must be directed to that overriding objective. Secondly, the authorisation may be given only by a very senior police officer. Thirdly, the authorisation cannot extend beyond the boundary of a police force area, and need not extend so far. Fourthly, the authorisation is limited to a period of 28 days, and need not be for so long. Fifthly, the authorisation must be reported to the Secretary of State forthwith. Sixthly, the authorisation lapses after 48 hours if not confirmed by the Secretary of State. Seventhly, the Secretary of State may abbreviate the term of an authorisation or cancel it with effect from a specified time. Eighthly, a renewed authorisation is subject to the same confirmation procedure. Ninthly, the powers conferred on a constable by an authorisation … may only be exercised to search for articles of a kind which could be used in connection with terrorism. Tenthly, Parliament made provision in section 126 for reports on the working of the Act to be made to it at least once a year … Lastly, it is clear that any misuse of the power to authorise or confirm or search will expose the authorising officer, the Secretary of State or the constable, as the case may be, to corrective legal action."
When the case moved to Strasbourg, the contrary conclusion prevailed. The following passages are relevant:
"79. … the safeguards provided by domestic law have not been demonstrated to constitute a real curb on the wide powers afforded to the executive so as to offer the individual adequate protection against arbitrary interference.
80. ... 'expedient' [in section 44(3)] means no more than 'advantageous' or 'helpful'. There is no requirement at the authorisation stage that the stop-and-search power be considered 'necessary' and therefore no requirement of any assessment of the proportionality of the measure.
81. … The failure of the temporal and geographical restrictions provided by Parliament to act as any real check on the issuing of authorisations by the executive are demonstrated by the fact that an authorisation for the Metropolitan Police District has been continuously renewed on a 'rolling programme' since the powers were first granted.
…
83. Of still further concern is the breadth of the discretion conferred on the individual police officer … Not only is it unnecessary for him to demonstrate the existence of any reasonable suspicion; he is not required even subjectively to suspect anything about the person stopped and searched."
"87. … the powers … are neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse."
Accordingly, they were not "in accordance with the law."
"88. An interference will be considered 'necessary in a democratic society' for a legitimate aim if it answers a 'pressing social need' and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are 'relevant and sufficient'." [Emphasis added]
Of course, at that stage, as the Court acknowledged (paragraph 89), a margin of appreciation must be left to the competent national authorities in this assessment. In the present case, once it is accepted that section 60 does not confer an arbitrary power, it is beyond dispute that all considerations pursuant to Article 8(2) have been satisfied.
"1.1 Powers to stop and search must be used fairly, responsibly, with respect for people being searched and without unlawful discrimination. The Equality Act 2010 makes it unlawful for police officers to discriminate against, harass or victimise any person on the grounds of the 'protected characteristics' of age, disability, gender reassignment, race, religion or belief, sex and sexual orientation, marriage and civil partnership, pregnancy and maternity when using their powers …
1.2 The intrusion on the liberty of the person stopped or searched must be brief and detention for the purposes of a search must take place at or near the location of the stop.
…
2.13 An authorisation under section 60 may only be given by an officer of the rank of inspector or above and in writing, or orally if paragraph 2.12(c) applies and it is not practicable to give the authorisation in writing. The authorisation (whether written or oral) must specify the grounds on which it was given, the locality in which the powers may be exercised and the period of time for which they are in force. The period authorised shall be no longer than appears reasonably necessary to prevent, or seek to prevent incidents of serious violence, or to deal with the problem of carrying dangerous instruments or offensive weapons or to find a dangerous instrument or offensive weapon that has been used.
…
2.14A The selection of persons and vehicles under section 60 to be stopped and, if appropriate, searched should reflect an objective assessment of the nature of the incident or weapon in question and the individuals and vehicles thought likely to be associated with that incident or those weapons … But powers must not be used to stop and search persons and vehicles for reasons unconnected with the purpose of the authorisation. When selecting persons and vehicles to be stopped in response to a specific threat or incident, officers must take care not to discriminate unlawfully against anyone on the grounds of any of the protected characteristics set out in the Equality Act."
"to prevent serious violence and the widespread carrying of weapons which might lead to persons being seriously injured by disarming potential offenders or finding weapons that have been used in circumstances where other powers would not be sufficient. They should not therefore be used to replace or circumvent the normal powers for dealing with routine crime problems …"
It is further provided that authorisation should be for the minimum period necessary and the narrowest geographical area necessary (paragraphs 12–13).
These are important provisions, governing the exercise of the section 60 power. I should add that there is now a later 2013 version of the Code.
Article 14
"Official statistics demonstrate that section 60 is used disproportionately to search black people in London. The official statistics are sufficient to mean that there is prima facie discrimination that the state must justify"
He seeks to rely on DH v Czech Republic (2008) 47 EHRR 3.
Conclusion
Lady Justice Rafferty
Lady Justice Macur