R (Gillan) v Commissioner of Police of the Metropolis [2006] UKHL 12; [2006] 2 AC 307

Key point

The stop and search regime found in the Terrorism Act 2000 was not held to be unlawful or in breach of the European Convention on Human Rights
Lord Bingham laid down a test for lawfulness under the under the ECHR: an exercise of power is lawful provided that it is governed by clear and publicly accessible rules of law and the power must be exercised arbitrarily

Facts

The Assistant Commissioner of the Metropolitan Police authorised, under s44 and s45 Terrorism Act 2000, the police to stop and search members of the public for 28 days
This authorisation was subsequently confirmed by the Secretary of State for the Home Department
A student and a journalist were stopped and searched on their way to a demonstration in East London – nothing incriminating was found
They brought proceedings against the Commissioner of Police of the Metropolis and the Home Secretary, for judicial review of their treatment, the authorisation, and the confirmation

Issues

Was the use of stop and search powers incompatible with the claimants’ Convention rights to liberty, respect for private life, freedom of expression, and freedom of assembly under articles 5, 8 , 10 and 11?
Were the authorisations and confirmations “prescribed by law” under article 5(1), 5(1)(b), 10(1) and 11(2) and “in accordance with the law” under article 8(2)?

Held (House of Lords)

Appeal dismissed; the authorisation and confirmation were lawful and did not constitute a breach of the European Convention on Human Rights

Lord Bingham of Cornhill

Principle of legality

The authorisation and confirmation, despite being for a large geographical error and following a continuous line of authorisations, did not fail on this principle (as set out in Simms) because the powers were exercised under close regulation: see Lord Bingham’s eleven reasons at [14]

Article 5

The test for whether there has been a deprivation of liberty should follow the test set out in the ECtHR case HL v United Kingdom (2004) EHRR 761 at [89]: “the starting-point must be the concrete situation of the individual concerned and account must be taken of a whole range of factors arising in a particular case such as the type, duration, effects and manner of implementation of the measure in question”: [25]
The brevity of the stop-and-search, and the fact that the person is being detained in the sense of being kept from proceeding, rather than being detained in the sense of being confined or kept in custody, meant that there was no deprivation of liberty: [25]

Article 8

The stop-and-search procedure was ordinarily superficial and so was nothing other than proportionate for the prevention of the great danger of terrorism – the procedure could not be said to be a breach of the right to respect for private and family life: [28]

Article 10 and 11

Provided that the power was exercised within statute and in compliance with the “prescribed by law” condition, the restriction on articles 10 and 11 will fall under the heads of justification in the articles: [30]

The lawfulness requirement

The words “prescribed by law” and “in accordance with the law” are taken to have the same meaning
Lord Bingham laid down a test for lawfulness under the Convention: “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. This is the test which any interference with or derogation from a Convention right must meet if a violation is to be avoided.”: [34]
The fact that the stop-and-search authorisations and confirmations were not made publicly available did not mean that they met the test, giving his reasons at [35]:
1. The 2000 Act informs the public that the authorisation and confirmation procedure exists, and the Act defines and limits the power with precision
2. It is doubtful that the authorisation and confirmation process is really ‘law’, instead of being “procedure for bringing the law into potential effect”
3. The efficacy of a measure such as this will be gravely weakened if potential offenders are alerted in advance
4. In exercising the power the constable is not free to act arbitrarily, and will be open to civil suit if he does