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Stop and search powers used by police under anti-terrorism laws violate basic human rights, according to the European Court of Human Rights.
In a judgement passed on 12 January of this year, in the case of Gillan and Quinton v United Kingdom, the ECHR held unanimously that powers used under ss 44-47 of the Terrorism Act 2000 violated article 8 of the European Convention on Human Rights.
In July of last year, Medway photographer Alex Turner, aka monaxle, made local headlines after being arrested under s 44 of the Terrorism Act 2000, after taking photographs in Chatham High Street.
In Turner’s case, he had already received confirmation that “complaints relating to unlawful and unnecessary arrest and detention have been recorded as proven”, after a complaint to the Professional Standards Department of Kent Police.
Turner was de-arrested before anything more serious could happen against him, although he had received rougher treatment than the Applicants in the above case.
Gillan and Quinton, both British nationals, were stopped near a demonstration close to an arms fair in London. Mr Kevin Gillan was riding a bicycle and carrying a rucksack, and was searched for 20 minutes. Ms Pennie Quinton, a journalist, was stopped and searched for five minutes, although she was also ordered to stop filming, despite carrying – and showing – her press cards.
The pair applied for judicial review, which the Queen’s Bench Divisional Court, the Court of Appeal and the House of Lords all dismissed. A complaint was subsequently made before the Human Rights Court that the use of s 44 to stop and search them breached their rights under articles 5, 8, 10 and 11 of the Convention.
Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which the Court upheld the application under, reads:
Article 8 – Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall 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 upholding the application, the Court expressed its concern that the provisions were open to a clear risk of arbitrary interference with privacy and that such provisions could be misused.
The Court stated that a search for articles could take place, even where no grounds existed for the suspicion that the person being searched could be in possession of such articles.
Finally, the Court was also concerned that, although not in the case of the application at hand, statistics showed that black and Asian people were disproportionately affected, and that there was a very real risk of discrimination against such people.
It therefore held unanimously that ss 44 and 45 were not in accordance with the law, under article 8, as they were not sufficiently circumscribed, nor subject to adequate legal safeguards against abuse.
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