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||Neutral Citation Number:  EWHC 1977 (Admin)
||Case No: CO/12660/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOSES
MR JUSTICE EADY
|| The Queen on the Application of Ann Juliette Roberts
||- and -
||The Commissioner of The Metropolitan Police
The Secretary of State for the Home Department
Mr Hugh Southey QC (instructed by Bhatt Murphy Solicitors) for the Applicant
Mr Jeremy Johnson QC and Ms Georgina Wolfe (instructed by Weightmans Llp) for the Respondent
Mr James Eadie QC and Mr Ben Jaffey for The Secretary of State for the Home Department (Interested Party)
Hearing dates: 3rd-4th May 2012
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Moses:
- The claimant was on a 149 bus on 9 September 2010 when a ticket inspector discovered that her Oyster card had insufficient funds to pay her fare. She was asked to leave the bus. She then gave a false name and address to the inspector, dishonestly stating she did not have any identification with her.
- When PC Reid, who arrived at the request of a police community support officer, asked her for a form of identification, she repeated that she did not have any.
- The place where she had been asked to leave the bus and was being questioned was within the borough of Haringey. About two hours before, Superintendent Barclay had granted an authority under s.60 of the Criminal Justice and Public Order Act 1994 for the period from 1.00 p.m. until 6.00 a.m. the following day in respect of the borough of Haringey, with the exception of six wards. This authorised a constable in uniform to stop any pedestrian and search him or anything carried by him for offensive weapons or dangerous instruments. There had in that area been a significant problem with gang-related violence, particularly between two rival gangs known as the Wood Green Mob and the Grey Gang. Twenty separate intelligence reports had been received relating to violent crime and the use of firearms, knives and other offensive weapons. Five days before, there had been an attempted murder and a stabbing, followed by a serious assault the day after. The day before, five more intelligence reports had been received, mostly relating to the use and storage of firearms. Superintendent Barclay feared that further incidents of serious violence were likely to take place in that area in the afternoon, evening and night, and in particular, that individuals would travel within the area in possession of weapons to be used in serious, violent incidents.
- PC Reid, aware of the s.60 authority, decided to deploy it to search the claimant. The claimant appeared to her to be nervous, and kept a tight hold of her bag, as if she was trying to conceal something. Accordingly, PC Reid explained her powers to the claimant and provided the claimant with the details required under s.2 of the Police and Criminal Evidence 1984 Act. The claimant would not co-operate, resisted the search, and walked away. PC Reid explained that she would be detained for the purpose of a search but she again walked off. She was then handcuffed, other officers came to PC Reid's assistance, and the claimant was taken to the ground, still holding on to her bag. The bag was searched, and the claimant finally gave her correct name and address. Bank cards in the claimant's name, her maiden name and her son's name were discovered, although it was not suggested they were held unlawfully or for unlawful purposes; she was arrested on suspicion of handling stolen goods and taken to Tottenham Police Station.
- The claimant, who is of good character, is 38 years-old. A caution she received following this incident has been quashed. She is married with a grown-up son and is a special needs assistant working with children and young adults with learning disabilities. This, she asserts, explains her reluctance to be searched in public; she preferred to be searched at a police station and did not wish to be searched in the street since she was concerned that other people in the area might witness the search.
- She now seeks relief, the terms of which are important in this application, for judicial review. She seeks a declaration pursuant to s.4 of the Human Rights Act 1998 that s.60 of the Criminal Justice and Public Order Act 1994 is incompatible with Articles 5 and/or 8 of the European Convention on Human Rights. Further, she seeks a declaration that the decision taken on 9 September 2010 to search her was unlawful.
- Whilst the remedy which the claimant seeks is confined to references to Articles 5 and 8, the process leading up to the hearing by this court has, to a substantial extent, focussed on a large amount of material relevant to a related but different issue. It is the claimant's concern, as a woman from African-Caribbean heritage, that there is a disproportionate use of searches under s.60 involving "black Londoners" (the description used on her behalf in her skeleton argument) in breach of Article 14 of the Convention. Much material has been provided to the Court attempting to show, by statistics, a disproportionate use of s.60 against black minority ethnic groups. That concern, which is, of course, of great importance, has prompted Liberty to intervene by way of written submissions and triggered an attempt by the Commission for Equality and Human Rights to join in that intervention.
- Section 60 of the 1994 Act provides:-
"(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 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. …
(4) This section confers on any constable in uniform 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.
(8) A person who fails
(a) to stop, or to stop a vehicle; or
(b) to remove an item worn by him,
when required to do so by a constable in the exercise of his powers under this section shall be liable on summary conviction to imprisonment for a term not exceeding one month or to a fine not exceeding level 3 on the standard scale or both."
The feature of those provisions which is particularly significant in this case is that a constable, exercising his powers under s.60(4), may conduct a random search within the limits of the time and place specified in the authorisation under s.60(1) and provided that the search is for an offensive weapon or dangerous instrument. This power of random search, uninhibited by the requirement of any reasonable suspicion, lies at the heart of this case. The power is to be contrasted with what Lord Brown has described as "our traditional understanding of the limits of police power" (Gillan and Quinton v Commissioner of Police of the Metropolis)  2 AC 307 ) of which the epitome is the power to search on reasonable grounds for suspicion conferred by s.1 of the Police and Criminal Evidence Act 1984.
- Article 5 of the Convention provides:-
"1. 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:
b. the lawful…detention of a person…in order to secure the fulfilment of any obligation prescribed by law."
- The claimant contends that s.60 is incompatible with Article 5 because a stop and search under s.60 amounts to a deprivation of liberty under Article 5. Section 60 is incompatible with Article 5 because it involves a deprivation of liberty which is not "in accordance with the procedure prescribed by law".
- The first question is whether the search in the instant case amounted to a deprivation of liberty. Resolution of this question depends upon all the facts and circumstances of the particular case: the type of search, its duration, the manner in which it was conducted and its effect (see, e.g., HL v United Kingdom  40 EHRR 761 paragraph 89, cited by Lord Bingham in Gillan and Quinton ). Mr Gillan was stopped pursuant to powers conferred by s.44 of the Terrorism Act 2000 whilst riding his bicycle and he and his rucksack were searched; the search lasted about 20 minutes. Miss Quinton was searched for about five minutes, said the police, but she estimated that it lasted for 30 minutes. Lord Bingham described the procedure as usually being "relatively brief". Usually the person would not be arrested, handcuffed, confined or removed. He concluded:-
"I do not think, in the absence of special circumstances, such a person (a person searched under ss.44 and 45 of the Terrorism Act 2000) 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." 
- The contrast between confinement and limitation of movement in the sense of being kept from proceeding or kept waiting is of significance. The United Kingdom has not ratified Protocol No. 4 of Article 2 to the Convention which guarantees the right to liberty of movement. It was this contrast which led to the view of the Grand Chamber of the European Court of Human Rights in Austin and Others v The United Kingdom (39692/09) that containment of a group of people carried out by the police on public order grounds, known as "kettling" did not amount to a deprivation of liberty. The Grand Chamber repeated that:-
"57. As mentioned above, Article 5 § 1 is not concerned with mere restrictions on liberty of movement, which are governed by Article 2 of Protocol No. 4. In order to determine whether someone has been "deprived of his liberty" within the meaning of Article 5 § 1, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation of and restriction upon liberty is one of degree or intensity, and not of nature or substance."
- Accordingly, the doubts expressed in the decision of the Fourth Section in Gillan v UK  50 EHRR 45, as to whether a stop and search not exceeding 30 minutes indicated a deprivation of liberty within the meaning of Article 5.1 have, to a large extent, been allayed by the subsequent decision of the Grand Chamber in Austin.
- The Grand Chamber's reasoning which led to the conclusion that the public order containment, which lasted for several hours, did not amount to a deprivation of liberty, is of particular significance, generally, in the instant case. That reasoning did not merely embrace questions as to the length, manner and effect of the confinement, but also the context of that confinement. The Court referred to the need to take account of the difficulties involved in policing modern societies, the unpredictability of human conduct, and the operational changes which must be made, having regard to priorities and resources (see paragraph 55). It concluded that the police must be afforded a degree of discretion in taking operational decisions and that Article 5 should not be interpreted:-
"in such a way as to make it impracticable for the police to fulfil their duties of maintaining order and protecting the public, provided that they comply with the underlying principle of Article 5, which is to protect the individual from arbitrariness" 
- In my view, the question of the arbitrary nature of the power conferred by s.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 s.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. 3.5 of the PACE Code of Practice Code A applies to s.60 searches and permits searching inside the pockets of outer clothing, feeling around the inside of collars, socks and shoes, and searching a person's hair. Had the claimant not resisted, the search would probably only have been as short as three minutes. The stop was recorded at 2.07 p.m. and the arrest at 2.10 p.m. It was, accordingly, far shorter than the detention considered in Gillan and in Austin. I conclude that there was no deprivation of liberty within the autonomous meaning of Article 5.1.
Compatibility of S.60 with Article 8 of the Convention
- The question is whether the power conferred by s.60 amounted to an interference with the claimant's right to respect for her private life. Article 8 provides:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There should be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety, or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
- In Gillan and Quinton Lord Bingham reached a tentative view that an ordinary superficial search of the person and opening of bags of the kind to which passengers were subjected at airports scarcely reached the level of an intrusion into personal autonomy such as to constitute a breach of Article 8.1 . But he did accept that some searches might constitute an interference with personal autonomy. Lord Brown thought that in some cases the procedure would be sufficiently intrusive to engage a person's Article 8 right . Lords Hope, Scott and Walker agreed with Lord Bingham. But the ECtHR in Gillan took the view that the use of the coercive powers under ss.44-47 of the Terrorism Act 2000 amounted to a clear interference with the right to respect for private life .
- It is correct, as the Commissioner and the Secretary of State submit, that this Court is not bound by the decision of the House of Lords in Gillan nor by the decision of the ECtHR because that court was dealing with the different provisions in the Terrorism Act 2000. Had the same measure been relevant, this court would have been bound by the decision of the House of Lords (Kay v Lambeth Borough Council  2 AC 465). It seems to me, however, that the reasoning of the ECtHR leads to a conclusion that the search in the instant case which involved an element of what the ECtHR described as humiliation and embarrassment, and included the search of the claimant's handbag, should be regarded as engaging Article 8.1. The Commissioner and the Secretary of State only argued faintly to the contrary. The real issue is whether the power conferred by s.60 was "in accordance with the law". It is on that aspect that the submissions focussed.
- The issue can be summarised in this way. The words "in accordance with the law" are designed to protect individuals against arbitrary interference by the executive. S.60 confers power on a police officer of or above the rank of inspector to give an authorisation which itself confers powers on a police constable to conduct a random search within the locality and time specified in the authorisation. Thus the question arises whether a random search conducted in exercise of powers conferred by authorisation under s.60 offends the requirement that the measure be "in accordance with the law".
- At first blush, the notion that this claimant can claim to be a "victim" of the arbitrary interference of her rights enshrined in Article 8.1 of the Convention seems curious. She had given a false name and address to the ticket inspector on the bus and falsely stated that she did not have any identification with her. She repeated those falsehoods to PC Reid. PC Reid had, that very day, already searched a middle-aged female under the Misuse of Drugs Act and discovered a canister of CS spray and other offensive weapons. When the claimant told PC Reid that she had no identification, PC Reid was surprised. We have already described the claimant's behaviour and PC Reid had every reason to believe that the claimant was concealing something and believed that she had an offensive weapon in her bag. PC Reid was also aware of the s.60 authorisation and that gang members were known to travel along the route of the 149 bus. The location was a hotspot for violence where people carried knives. It was in that context that she exercised her power to search the claimant under s.60. On the basis of that evidence, PC Reid had every justification for conducting the search. It was plainly not a random search, still less arbitrary.
- Nonetheless, the claimant was a victim for the purposes of s.7(1) of the Human Rights Act 1998, read with Article 34 of the Convention (s.7(7)). The claimant was searched by virtue of powers exercised under s.60 which permitted a random search. Accordingly, the mere fact that there was good reason to search her in this particular case does not deprive her of the status of victim. The impugned measure, s.60, was applied to her detriment (Klass v Germany  2 EHRR 214). The principle was reiterated in Colon v The Netherlands App No. 49458/06; a judgment of the Third Section delivered after oral argument in the instant case:-
"60. Article 34 entitles individuals to contend that legislation violates their rights by itself, in the absence of an individual measure of implementation, if they run the risk of being directly affected by it; that is, if they are required either to modify their conduct or risk being prosecuted, or if they are members of a class of people who risk being directly affected by the legislation…"
- The nub of the complaint is that, absent any requirement of reasonable suspicion, the power to search under s.60 is insufficiently circumscribed and lacks sufficient safeguards against its arbitrary exercise and abuse. It affords an unchecked opportunity for a police officer arbitrarily to pick on whoever the officer chooses without any justification. A particular risk which this arbitrary exercise of power poses is the risk of racial discrimination. It is in that context that the claimant, supported by the written intervention of Liberty, advances statistics seeking to demonstrate how much more likely it is that if a person comes from a black minority ethnic group that person is likely to be subjected to stop and search under s.60.
- I shall return, subsequently, to the issue of the rival statistics advanced by the parties in relation to the likelihood of being stopped if the person comes from a particular ethnic group. But at this stage of the argument it is necessary to do no more than to highlight the potential for discrimination to which the exercise of power under s.60 gives rise. The claimant seeks to demonstrate that potential by reference to Ministry of Justice statistics available for 2009/10, which show that black people were stopped under s.60 around 25 times more than white people nationally, and more than nine times as much in the Metropolitan Police area. I should emphasise, straight away, that the figures and the inferences which may be drawn from them are disputed by the Commissioner and by the Secretary of State. But it cannot be disputed but that the power of random search does give rise to a potential for racial discrimination. In R(Gillan) v The Commissioner of Police for the Metropolis it was argued that the powers under s.44 of the Terrorism Act 2000 were all too easily capable of being used in an arbitrary fashion and all too difficult to safeguard against abuse . It would usually, so it was argued, be impossible to establish a misuse of a power exercised for racially discriminatory reasons where no particular grounds were required for its apparently lawful exercise [76B]. These arguments are deployed in relation to s.60. It too may be exercised on no particular grounds: this leads to the practical impossibility for any searched individual to establish that the search was conducted on racially discriminatory grounds.
- Despite the fact that the power under s.44 of the Terrorism Act 2000 could be exercised in a racially discriminatory manner, the House of Lords concluded that s.44 was not arbitrary but was a measure prescribed by law. Lord Bingham observed:-
"34. The lawfulness requirement in the Convention addresses supremely important features of the rule of law. The exercise of power by public officials, as it affects members of the public, must be governed by clear and publicly accessible rules of law. The public must not be vulnerable to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than that for which the power was conferred. This is what, in this context, is meant by arbitrariness, which is the antithesis of legality."
- Lord Bingham concluded, however, that the stop and search regime under the 2000 Act met that test . He pointed out that it was not suggested that the power to search, in the cases before the Judicial Committee, had been exercised in a discriminatory manner and he preferred to say nothing on the subject of discrimination . Lord Hope also concluded that a constable exercising powers under s.44 was not acting arbitrarily because of the background structure of the legislation and Code A (the Code published pursuant to s.66 of PACE 1984 which prescribed the manner in which the power was to be exercised). Lord Hope referred to the need for authorisation for the exercise of the s.44 power, its confirmation within 48 hours, and Code A which, he concluded, provided a system of regulatory control over the exercise of the power which enabled a person who is stopped and searched to test its legality in the courts .
- Lord Brown emphasised that the s.44 power could not be exercised effectively unless it enabled police officers to make what had been described by Mr John Rowe QC as intuitive stops  and . Lord Brown quoted paragraph 2.25 of Code A, warning that:-
"Officers must take particular care not to discriminate against members of minority ethnic groups in the exercise of these powers."
He said that ethnic origin could and probably should be taken into account in deciding whether to stop and search, provided the power was used sensitively and the selection made for reasons connected with the perceived terrorist threat, and not on grounds of racial discrimination. He did not however take up the challenge advanced by counsel for the claimants that it was impossible to police the instruction under Code A. No one subject to a stop and search would be able to establish that a particular police officer had selected him on grounds of racial discrimination. On the contrary, Lord Brown concluded:-
"92. Of course it is important, indeed imperative, not to imperil good community relations, not to exacerbate a minority's feelings of alienation and victimisation, so that the use of the supposed preventative powers could tend actively to promote rather than counter the present terrorist threat. But I cannot accept that…(stop and search powers when used sparingly) can be impugned either as arbitrary or as 'inherently and systematically discriminatory'…simply because they are used selectively to target those regarded by the police as most likely to be carrying terrorist-connected articles, even if this leads, as usually it will, to the deployment of this power against a higher proportion of people from one ethnic group than another. I conclude rather that not merely is such a selective use of the power legitimate; it is its only legitimate use. To stop and search those regarded as presenting no conceivable threat whatever (particularly when that leaves officers unable to stop those about whom they feel an instinctive unease) would itself constitute an abuse of the power. Then indeed would the power be being exercised arbitrarily."
The House of Lords concluded that authorisations under s.44 and the exercise of the power under such authorisations to stop and search were subject to effective constraints. The powers were, accordingly, exercised in accordance with the law.
- It is necessary to identify those features of s.44 which the Judicial Committee regarded as providing effective constraint so that s.44 may be compared with s.60. Firstly, authorisation to stop and search under s.44 could only be given where it was expedient for the prevention of acts of terrorism (s.44(3)). Lord Bingham observed that expedient had a meaning quite distinct from necessary. Despite the absence of restriction that would have been imposed by the word "necessary" the Judicial Committee took the view that there were sufficient effective constraints. The power could only be exercised where "expedient for the prevention of acts of terrorism" (14H). Secondly, it could only be given by a very senior police officer. Thirdly, authorisation could not be extended beyond the boundary of a police force area. Fourthly, the authorisation was limited to a period of 28 days. Fifthly, the authorisation must be reported to the Secretary of State forthwith. Sixthly, it lapses after 48 hours if not confirmed by the Secretary of State. Seventhly, it might be abbreviated or cancelled by the Secretary of State. Eighthly, a renewed authorisation is subject to the same confirmation procedure. Ninthly, the powers could only be exercised to search for articles of a kind which could be used in connection with terrorism. Tenthly, reports had to be made at least once a year and finally, any misuse would expose the authorising officer, the Secretary of State or the constable to corrective legal action (Lord Bingham, ).
- The ECtHR in Gillan took the opposite view. The Court observed that it was contrary to the rule of law for a legal discretion granted to the executive to be expressed in terms of "unfettered power". The law should indicate with sufficient clarity the scope of any such discretion and the manner of its exercise . The Court noted that authorisation could be granted not because it was necessary but because it was expedient. Thus there was no requirement of any assessment of the proportionality of the measure . The authorisation could last as long as 28 days, and was renewable. The authorisation had been in place permanently since the legislation came into force by virtue of a rolling programme of continuous authorisation . Moreover, the police force areas in which authorisation had been given covered extensive regions with concentrated populations. The Metropolitan Police Force area extended to the whole of Greater London .
- Further, although the independent reviewer provided an additional safeguard, that reviewer had no right to cancel or alter authorisations despite the fact that he recommended a less frequent use . The Court took the view that the discretion given to the individual police officer was too wide. There was no requirement for reasonable suspicion and the category of articles for which he was permitted to look was so wide that they could cover many articles commonly carried by people in the streets . Furthermore, none of the many thousands of searches had ever led to an arrest for a terrorism offence. Lord Carlisle's 2008 report noted many examples of poor and unnecessary use of the powers under s.44 .
- The Court further noted the risk of discriminatory use of the powers under s.44. It referred to "available statistics which showed that black and Asian persons were disproportionately affected by the powers although there had been a practice of stopping and searching white people to produce a greater racial balance" . The Court concluded that the powers of authorisation and confirmation were:-
"neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. They are not therefore 'in accordance with the law'." 
It ruled that there had been a violation of Article 8 of the Convention.
- The features of s.44, on which the ECtHR founded its decision, may be contrasted with s.60. Firstly, the legal test for granting an authorisation under s.60 is not the same as that under the 2000 Act. Under s.44 authorisations could, as Lord Bingham and the ECtHR pointed out, be issued on grounds of mere expediency. But under s.60 the inspector or more senior officer must "reasonably believe" that incidents involving serious violence may take place in a locality in his police area (s.60(1)(a)) or that an incident involving serious violence has taken place and that a dangerous instrument or offensive weapon used in the incident is being carried in a locality in his police area (s.60(1)(aa)) or persons are carrying such instruments in the area without good reason (s.60(1)(b)). The requirement that it be expedient to give an authorisation (s.60(3)) is additional to the requirement that the officer reasonably believes one of the three matters the Statute identifies. If it is reasonably believed that there exist such circumstances as are identified in s.60(1), it is difficult to envisage circumstances where authorisation would not be necessary. It may not be expedient to exercise the power to give authorisation, but, in my view, such authorisation would satisfy the requirement of necessity, within the meaning of "in accordance with the law", subject to a limitation of time and location.
- Secondly, the authorisation is narrow and limited in its scope. It may only cover a specified locality in a particular police area in contrast to the wide geographical area, such as the whole of Greater London, under s.44. Moreover, the authorisation under s.60 may only last for a maximum of 24 hours. It may be renewed for a further 24 hours but only if that is expedient, having regard to events which have or are reasonably suspected to have been committed in connection with any activity falling within the authorisation. This is to be contrasted with the continuous renewal of s.44 authorisations.
- Thirdly, a s.60 search is limited for the purpose of a search for dangerous instruments, blades or sharply-pointed items, or unlawful offensive weapons or weapons used in a particular seriously violent incident in that area. This is to be contrasted with articles which could be used in connection with terrorism which, as the ECtHR pointed out, could embrace many articles of a kind commonly carried by people in the streets.
- Like s.44, the manner in which the power to give authorisation is to be exercised is governed by Code of Practice A. These require the officer to "set the minimum period he or she considers necessary"… and not to set a geographical area wider than believed necessary . Police officers are warned, as they are warned in relation to s.44, against the use of the power in a racially discriminatory way.
- It is true that authorisation may originally be given by an inspector, a lower rank than the officers who are specified in s.44. But it is sensible to specify officers who hold a rank which is far more likely to be sensitive to and aware of the needs of a particular locality, based on local intelligence and local crime patterns. Authorisation has to be considered on a speedy, day-to-day basis, in individual boroughs or wards. Requiring authorisation at a higher level would not be a useful safeguard and would not provide adequate protection. It is the very fact that a reasonable belief is necessary which dictates the need for officers with their ears closer to the ground to consider authorisation.
- It is true that, under s.60, there is no independent reviewer. The Secretary of State seeks to explain that the purpose of the independent reviewer was to mitigate the difficulty that it was not possible to publicise the evidential foundation which supported the use of s.44. In any event, the ECtHR did not regard the independent reviewer as affording protection since he had no power to restrict the use of s.44 . Of far more significance is the requirement that the authorising officer makes an authorisation only in circumstances where it is proportionate and necessary for the purposes of protecting members of the public in respect of the incidents of serious violence identified in the section. That requirement is imposed by s.6(1) of the Human Rights Act 1998. It would be wrong therefore to say that in relation to s.60 there was no requirement of any assessment of proportionality of the measure, in contrast to the terms in which the ECtHR condemned s.44 .
- In the instant case the basis upon which the authorisation was granted is made clear. The superintendent of operations in Haringey Borough, Christopher Barclay, was concerned about an escalation of gang-related violence between June and August 2010, with 22 gang-related violent crimes. On 9 September 2010 an updated intelligence report revealed a number of incidents of serious violence concerning Turkish gangs believed to be involved in the drugs trade. One of the gangs was believed to have access to firearms and was looking to confront another gang, named individuals were looking to get hold of firearms to enhance their reputation, one individual was identified as storing a firearm for another, and another was suspected of involvement in a shooting incident which had taken place several days earlier. There had been an attempted murder five days before and a serious assault the day after. Superintendent Barclay, on the basis of this intelligence and his experience of working in the borough over the previous year and a half, believed that further incidents of serious violence were likely to take place during that afternoon, evening and night, and that it was essential that he should seek to prevent that and track down and seize weapons. He was aware that gang members involve others to move the weapons around so as to avoid police attention.
- He specifically considered whether the authorisation was proportionate, legal, accountable and necessary, as required in the form which he completed; he stated that the authorisation was for the purpose of protecting members of the public from being involved or surrounded by serious unlawful violence between opposing gang members. A Community Tension Indicator Assessment Return (replacing a Community Impact Assessment) had been completed the day before.
- The disclosure of this material provides a striking example of how the exercise of the power to give an authorisation may be scrutinised and subject to control. Once the claimant made her complaint, the contemporary forms and the evidence justifying the making of the authorisation were revealed. They are subject to the scrutiny of the claimant, and of the court. If there was evidence that the superintendent's belief had not been reasonable, or the authority was neither proportionate nor necessary, then the claimant would have had a remedy in court and the attempt to search her and her consequential arrest would have been shown to have been unlawful.
- It must be acknowledged that any search for an offensive weapon, by virtue of a s.60 authority, may be random. An officer may pick out those whom he seeks to search in exercise of a s.60 authority on the basis of "intuition", instinct or random choice. But the only alternative to the exercise of a random power of search is to require the officer to have a reasonable suspicion that the person he proposes to stop and search is indeed carrying an offensive weapon. It is difficult to see how that could be effective for the important purposes for which the power to give authority is conferred by s.60. If an officer was required to have a reasonable suspicion, it would be all too easy for those who wished to conceal weapons whilst travelling around the wards of Haringey to escape detection. It is the very random quality of the power that provides an effective deterrent and increases the chance of discovering the weapons. No one in the particular area can safely assume that they may not be stopped and searched. Section 44 searches did not result in a single arrest for terrorist offences, whereas searches under s.60 resulted in over 2,000 arrests in 2007-2008 and 4,273 in 2008-09.
- There is a stark choice. The alternative to a random search is to impose a requirement of reasonable suspicion. It is not possible to see how that would be effective for the purposes for which the power to give authorisation is conferred. That that is a relevant consideration is confirmed by recalling the approach of the ECtHR in Austin. The Court took the view that Article 5 should not be interpreted in such a way as to make it impractical for the police to fulfil their duties of protecting the public. Account had to be taken of the difficulties involved in policing modern societies and operational choices  and . It is true that the Court in Austin added the important proviso that measures must comply with the underlying principle of Article 5, to protect the individual from arbitrariness. But unless the power to give authorisation conferred by s.60 can itself be described as arbitrary, in my view, random searches, by virtue of that authorisation, cannot and should not be impugned. The authorisation can, in my view, only be effective if it permits random search.
- The contrast I have drawn between authorisation under s.60 and authorisation under s.44 demonstrates that authority given under s.60 is in accordance with the law and not arbitrary. The power conferred by s.60 to give authorisation is not unfettered. It is circumscribed by the provisions of s.60 and Code A, and subject to the control of the courts, as this very case demonstrates.
- I am fortified in my view that search may be random by the decision of the ECtHR in Colon. The decision of the Third Section reveals that the European Court does not regard all random searches as necessarily involving a breach of the requirement that the measure be in accordance with the law. Under the relevant law, the Burgomaster could designate an area as a "security risk area". He had designated most of the old centre of Amsterdam. In consequence the Public Prosecutor was permitted to order that for a period of 12 hours any persons in the designated area might be searched for the presence of weapons. The search times and places were not selected randomly because the Public Prosecutor had to explain, in his Order, the facts and circumstances on which the Order was based, making reference to the recent reports.
- The relevant measure was subject to greater democratic control. The elected representative body was required to adopt a bye-law. No single executive authority could order a search operation . The Burgomaster's Order was subject to an appeal . The effectiveness of the use of the search powers was reviewed by an independent body . That body produced evidence that demonstrated that search powers had assisted in reducing crime.
- It is true that those features were regarded as significant by the European Court in concluding that there had been no breach of Article 8. But the scheme in Colon does resemble the authorisation under s.60 in that the geographical area and the time of authorisation are limited. The purpose is confined to a search for unlawfully held weapons. Authorisations were granted on the basis of local intelligence. There were ample means of challenging the decision and unlawful designation would amount to a defence if charged for failure to comply with a search. It is also of note that the area in Amsterdam was far wider than in the instant case and had been re-designated every year for seven years . In conclusion, the Third Section echoed the approach of the Grand Chamber in Austin:-
"87. It is therefore primarily the responsibility of the national authorities to make the initial assessment as to where the fair balance lies in assessing the need for an interference in the public interest with individuals' rights under Article 8 of the Convention. Accordingly, in adopting legislation intended to strike a balance between competing interests, States must in principle be allowed to determine the means which they consider to be best suited to achieve the aim of reconciling those interests."
This acknowledgement of the margin of appreciation, the breadth of which varies according to the nature of the right in issue, to its importance for the individual, to the nature of the interference, and to the object pursued by the interference , is of particular relevance in the instant case. 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 remains one feature of the exercise of the power to give authorisation under s.60 which must not be overlooked, that is, the potential inherent in any random search for racial discrimination. That potential gave rise to a large amount of material and debate in the instant case. The concern of Liberty, and the Equality and Human Rights Commission, which was not permitted to intervene but submitted a report, related to what was asserted to be the use of s.60 searches in a directly discriminatory fashion. It was suggested that statistics demonstrated that searches were targeted explicitly on the basis of racial characteristics. This is an issue of great importance. As the police well understand, (see 1.1 and 1.3 in Coda A), the exercise of police powers in a racially discriminating manner is not only unlawful but is inefficient, ineffective and may have disastrous consequences. But it is essential to appreciate that that issue does not arise in the instant case.
- There is no basis whatever for an assertion that the power of stop and search exercised pursuant to the s.60 authorisation in this case against Ann Roberts was exercised in a racially discriminatory way or on the basis of racial discrimination. The claimant suggests in her written argument that there is an issue as to whether s.60 is being used in a manner which breaches Article 14 of the Convention when read with Article 8. But the challenge is to s.60, the legislation itself. There is nothing in the legislation which itself is racially discriminatory.
- There is an important issue as to whether the legislation is being used in a racially discriminatory manner. But that issue cannot be determined in these proceedings. In order to establish that the power of stop and search exercised under a s.60 authorisation is being used in a racially discriminatory manner it is not sufficient merely to swap written statistics and expect the court to resolve the issue. Liberty and the claimant have advanced a substantial quantity of statistics in an attempt to prove that the powers are being used in a racially discriminate manner. The statistics on which they rely are challenged by the Commissioner of Police on the basis that they do not accurately represent the proportion of black minority ethnic groups in the areas in which such searches are authorised. Moreover, the Commissioner challenges the inferences which might be drawn from the statistics. These issues cannot be resolved merely by assertion and counter-assertion founded on figures and percentages. Indeed, it would be highly dangerous to do so. If a court permitted itself to reach a conclusion on the basis of challenged and disputed statistics it might only exacerbate a fraught and sensitive subject.
- In this case, the claimant sought, at the last minute, to present a statement from Dr Michael Shiner, a senior lecturer in the Department of Social Policy at LSE. Its 55 paragraphs contain not so much a report which a court could use, as a detailed paper which required a separate note from counsel on behalf of the claimant to pick out certain sections and to explain. The Commissioner rightly objected to the late submission of that report.
- If a court had to rule on the use of the power of stop and search under s.60, it would require properly prepared expert reports identifying those issues upon which the experts were agreed and those on which they disagreed. The areas for resolution by the court where the experts disagreed would have to be identified. Issues simply cannot and should not be resolved merely by reading undigested material in the hope that the court's own expertise in statistical analysis will enable it to reach a conclusion.
- There is an important means of testing the assertions that the powers have been used in a racially discriminatory way. That is through the machinery of the Commission for Equality and Human Rights and the exercise of their powers under the Equality Act 2006. The Commission is, at the moment, analysing figures which they have accumulated from various police forces. I understand that there are discussions taking place between the Commission and the Commissioner in relation to s.60. If the Commission is not satisfied as to the manner in which the powers under s.60 are being used, then it is open to them to invoke their powers to serve "unlawful act" notices (s.21 of the 2006 Act). That would be a far more appropriate way of resolving these issues than seeking, in judicial review proceedings, to establish a breach of Article 14, read with Article 8. It is true that from time to time the ECtHR deploys statistics as they deployed them in a Roma education case, in DH v Czech Republic  47 EHRR 3. Statistical data may be the only means of proving that a measure has a discriminatory effect . But it is to be noted that in DH the figures were not disputed by the government. The Czech Republic did not produce any alternative statistical evidence . It seems to me that the issue as to whether s.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 those 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.
- For the reasons I have given, I would reject this application.
Mr Justice Eady:
- I too would reject the application for the reasons given by Moses LJ.
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