Judgments - R (on the application of Gillan (FC) and another (FC)) (Appellants) v. Commissioner of Police for the Metropolis and another (Respondents)

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    12.  The appellants' applications for judicial review were dismissed by the Queen's Bench Divisional Court (Brooke LJ and Maurice Kay J) ([2003] EWHC 2545 (Admin), [2003] All ER (D) 526 (Oct)). The Court of Appeal (Lord Woolf CJ, Buxton and Arden LJJ) made no order on the appellants' claims against the Commissioner and dismissed their claims against the Secretary of State: [2004] EWCA Civ 1067, [2005] QB 388. The appellants' case has changed shape somewhat as it has progressed through the courts. It was presented to the House under four main heads.

A. Construction

    13.  The argument centred on the expression "expedient" in section 44(3). The appellants pointed to the Divisional Court's description of these stop and search powers as "extraordinary" and as "sweeping and far beyond anything ever permitted by common law powers" (para 44 of the judgment), a description echoed by the Court of Appeal (para 8), and suggested that Parliament could not have intended to sanction police intrusion into the freedom of individuals unless it was necessary that the police have such a power. Reliance was placed on the principle of legality articulated in R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, 130, 131. Reliance was also placed on Home Office Circular 038/2004 (July 2004), Authorisations of Stop and Search Powers under Section 44 of the Terrorism Act, addressed to Chief Officers of Police, which emphasised that "Powers should only be authorised where they are absolutely necessary to support a force's anti-terrorism operations". The appellants submitted that section 44(3) should be interpreted as permitting an authorisation to be made only if the decision-maker has reasonable grounds for considering that the powers are necessary and suitable, in all the circumstances, for the prevention of terrorism.

    14.  I would for my part reject this argument for one short and simple reason. "Expedient" has a meaning quite distinct from "necessary". Parliament chose the first word, also used in section 13A of the 1989 Act, not the second. There is no warrant for treating Parliament as having meant something which it did not say. But there are other reasons also for rejecting the argument. It is true, as already recognised, that section 45(1)(b), in dispensing with the condition of reasonable suspicion, departs from the normal rule applicable where a constable exercises a power to stop and search. One would therefore incline, within the permissible limits of interpretation, to give "expedient" a meaning no wider than the context requires. But examination of the statutory context shows that the authorisation and exercise of the power are very closely regulated, leaving no room for the inference that Parliament did not mean what it said. There is indeed every indication that Parliament appreciated the significance of the power it was conferring but thought it an appropriate measure to protect the public against the grave risks posed by terrorism, provided the power was subject to effective constraints. The legislation embodies a series of such constraints. First, an authorisation under section 44(1) or (2) 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 under sections 44(1) or (2) 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, which have in the event been made with commendable thoroughness, fairness and expertise by Lord Carlile of Berriew QC. 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.

    15.  The principle of legality has no application in this context, since even if these sections are accepted as infringing a fundamental human right, itself a debatable proposition, they do not do so by general words but by provisions of a detailed, specific and unambiguous character. Nor are the appellants assisted by the Home Office circular. This may well represent a cautious official response to the appellants' challenge, and to the urging of Lord Carlile that these powers be sparingly used. But it cannot, even arguably, affect the construction of section 44(3). The effect of that sub-section is that an authorisation may be given if, and only if, the person giving it considers it likely that these stop and search powers will be of significant practical value and utility in seeking to achieve the public end to which these sections are directed, the prevention of acts of terrorism.

B. Authorisation and confirmation

    16.  At 1.0 pm on 13 August 2003 Assistant Commissioner Veness of the Metropolitan Police (an officer of the rank required by section 44(4)(b) of the 2000 Act) gave an authorisation under section 44(4) of that Act. It covered the whole of the Metropolitan Police District and was expressed to have effect for 28 days, until 11.59 p.m. on 9 September, a time some hours after the appellants were stopped and searched. It was confirmed by the Secretary of State on 14 August 2003. Such authorisations had been made continuously for successive periods since section 44 came into force on 19 February 2001, and when this authorisation expired just before midnight on 9 September it was renewed by a further authorisation, also confirmed by the Secretary of State, continuing until 6 October.

    17.  The appellants' first ground of attack on the authorisation and confirmation was based on their geographical coverage. This, they said, was excessive: even if there was justification for conferring such exceptional powers in areas of central London offering the most spectacular targets for terrorist violence, there could be no need for them in the dormitory suburbs of outer London, which offered no such targets. This is not, in my opinion, an unattractive submission, but it founders on two major obstacles. First, the Assistant Commissioner in his witness statement, having addressed the terrorist threat to the United Kingdom in general and London in particular in August-September 2003, expressly said:

    "(I was particularly conscious that the number and range of particular terrorism targets in London was numerous and geographically spread throughout the entire Metropolitan Police District)."

This aspect was also addressed in the witness statement of Catherine Byrne, a senior Home Office civil servant, on behalf of the Secretary of State:

    "17.  In this context it is also simply impracticable to attempt to differentiate between some parts of the Metropolitan Police area and others. As I have already indicated potential targets within the London area are not limited to central London, but exist throughout the metropolitan area. Moreover, the powers under sections 44 and 45 of the 2000 Act are aimed not simply at disrupting any attempted attack 'at the last possible moment' but are intended to enable police forces, where appropriate, to ensure that any attempted attack is disrupted at an early stage, and certainly well before any serious harm could be done to members of the public or to property. It must also be remembered that the powers under sections 44 and 45 of the 2000 Act are simply one element of the strategy adopted by the Metropolitan Police (in conjunction with the City of London police) to combat the risk posed by terrorists. This is a point made in the reasons supporting both authorisations made by the Commissioner. Further, the powers under sections 44 and 45 of the 2000 Act play a legitimate part in focussed intelligence gathering operations. These can be directed either for the purpose of disrupting identified risks or (equally legitimately) as a means of obtaining information that can lead to the identification of potential risks."

There is no evidence of any kind to contradict or undermine this testimony. Secondly, as both these witness statements make clear, the Assistant Commissioner and the Secretary of State independently paid attention to secret security intelligence when making the judgments which they respectively did. An offer to explore this evidence before the Divisional Court hearing, subject to procedural safeguards, was made to the appellants but not taken up. In the result, therefore, the House has before it what appear to be considered and informed evaluations of the terrorist threat on one side and effectively nothing save a measure of scepticism on the other. There is no basis on which the respondents' evidence can be rejected. This is not a question of deference but of what in A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68, para 29, was called "relative institutional competence".

    18.  The appellants' second, and main, ground of attack was directed to the succession of authorisations which had had effect throughout the Metropolitan Police District since February 2001, continuing until September 2003. It was, they suggested, one thing to authorise the exercise of an exceptional power to counter a particular and specific threat, but quite another to authorise what was, in effect, a continuous ban throughout the London area. Again this is not an unattractive submission. One can imagine that an authorisation renewed month after month might become the product of a routine bureaucratic exercise and not of the informed consideration which sections 44 and 46 clearly require. But all the authorisations and confirmations relevant to these appeals conformed with the statutory limits on duration and area. Renewal was expressly authorised by section 46(7). The authorisations and confirmations complied with the letter of the statute. The evidence of the Assistant Commissioner and Catherine Byrne does not support, and indeed contradicts, the inference of a routine bureaucratic exercise. It may well be that Parliament, legislating before the events of September 2001, did not envisage a continuous succession of authorisations. But it clearly intended that the section 44 powers should be available to be exercised when a terrorist threat was apprehended which such exercise would help to address, and the pattern of renewals which developed up to September 2003 (it is understood the pattern has since changed) was itself a product of Parliament's principled refusal to confer these exceptional stop and search powers on a continuing, countrywide basis. Reporting on the operation of the 2000 Act during the years 2002 and 2003, Lord Carlile (para 86) found that sections 44 and 45 remained necessary and proportional to the continuing and serious risk of terrorism, and regarded London as "a special case, having vulnerable assets and relevant residential pockets in almost every borough".

    19.  There is no material before the House to justify the conclusion that the authorisation of 13 August and the confirmation of 14 August 2003, or either of them, were unlawful.

C. The Human Rights Act and the European Convention

    20.  The appellants addressed argument on articles 5, 8, 10 and 11 of the European Convention on Human Rights. It is necessary to consider these articles separately.

Article 5

    21.  So far as relevant to this appeal, article 5 provides:

    "Right to liberty and security

    1.  Everyone has the right to liberty and security of the 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 arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law…."

It is unnecessary to recite the other sub-heads of exception: they provide an exhaustive list of the cases in which, in accordance with a procedure prescribed by law, a person may be deprived of his liberty (Ireland v United Kingdom (1978) 2 EHRR 25, para 194), but none of the other exceptions is capable of applying here. Reference must, however, be made to article 2 of the Fourth Protocol to the Convention. This protocol has not been ratified by the United Kingdom, but has been relied on by the European Court when considering what amounts to a deprivation of liberty under article 5. Article 2 of the Fourth Protocol is entitled "Freedom of Movement" and provides in paragraph 1

    "Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement …."

    22.  It is clear that the giving of an authorisation by a senior officer and its confirmation by the Secretary of State cannot, of themselves, infringe the Convention rights of anyone. Thus the threshold question is whether, if a person is stopped and searched in accordance with the procedure prescribed by sections 44-45 and Code A, he is "deprived of his liberty" within the autonomous meaning of that expression in article 5(1). The appellants contend that he is so deprived, even if only for a short time, since the police officer has the power to require compliance with the procedure; a member of the public will not feel that his compliance is voluntary; the officer has a power to detain, which he may or may not exercise (section 45(4)); reasonable force may be used to enforce compliance (section 114(2)); and non-compliance is criminally punishable. Thus a member of the public has no effective choice but to submit, for as long as the procedure takes. The respondents for their part do not, I think, contend that compliance with the procedure is in any meaningful sense voluntary; but they submit that viewed objectively, and in the absence of special circumstances, the procedure involves a temporary restriction of movement and not anything which can sensibly be called a deprivation of liberty.

    23.  The House was referred to a mass of authority relied on to show that one or other of these approaches should be preferred. There is, however, no European decision on facts closely analogous with the present, and it is not in my view helpful to consider whether a stop and search under section 45 is more closely analogous with, for instance, the case of a man forcibly compelled to submit to a blood test (X v Austria (1979) 18 DR 154: held, deprivation of liberty) or with that of a ten year-old girl kept at a police station for two hours for questioning, for part of the time in an unlocked cell (X v Germany (1981) 24 DR 158: held, no deprivation of liberty). The Strasbourg jurisprudence is closely focused on the facts of particular cases, and this makes it perilous to transpose the outcome of one case to another where the facts are different. Still more perilous is it, in my opinion, to seek to transpose the outcome of Canadian cases decided under a significantly different legislative regime.

    24.  The task of the House is eased by the substantial agreement of the parties on the correct approach in principle. Perhaps the clearest exposition of principle by the Strasbourg court is to be found in Guzzardi v Italy (1980) 3 EHRR 333, an exposition repeatedly cited in later cases. The case concerned an applicant who, pending his criminal trial, was subject for over 16 months to a form of internal exile on an island off the coast of Sardinia. He was specially supervised in an area of 2.5 square kilometres. He was held to have suffered a deprivation of his liberty. The Commission reached this conclusion (para 90) because of the small area in which the applicant had been confined, the almost permanent supervision to which he had been subject, the all but complete impossibility of his making social contacts and the length of his enforced stay. The Italian Government challenged this analysis on a number of grounds (para 91). In paragraphs 92-93 the Court observed:

    "92.  The Court recalls that in proclaiming the 'right to liberty', paragraph 1 of Article 5 is contemplating the physical liberty of the person; its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion. As was pointed out by those appearing before the Court, the paragraph is not concerned with mere restrictions on liberty of movement; such restrictions are governed by Article 2 of Protocol No. 4 which has not been ratified by Italy. In order to determine whether someone has been 'deprived of his liberty' within the meaning of Article 5, 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.

    93.  The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5 depends."

The Court continued (para 95):

    "95.  The Government's reasoning (see para 91 above) is not without weight. It demonstrates very clearly the extent of the difference between the applicant's treatment on Asinara and classic detention in prison or strict arrest imposed on a serviceman. Deprivation of liberty may, however, take numerous other forms. Their variety is being increased by developments in legal standards and in attitudes; and the Convention is to be interpreted in the light of the notions currently prevailing in democratic States."

The Court went on to review the special features of the applicant's situation, and held:

    "It is admittedly not possible to speak of 'deprivation of liberty' on the strength of any one of these factors taken individually, but cumulatively and in combination they certainly raise an issue of categorisation from the viewpoint of Article 5. In certain respects the treatment complained of resembles detention in an 'open prison' or committal to a disciplinary unit."

    25.  It is accordingly clear, as was held in HL v United Kingdom (2004) 40 EHRR 761, para 89, that

    "in order to determine whether there has been a deprivation of liberty, 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."

I would accept that when a person is stopped and searched under sections 44-45 the procedure has the features on which the appellants rely. On the other hand, 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 as "the better view" (para 46), and I agree.

    26.  If, however, a stop and search carried out in accordance with sections 44-45 and Code A, in the absence of special circumstances, does involve a deprivation of liberty, it is necessary to consider (as the Court of Appeal did) (a) whether that deprivation is in accordance with the law and, if so, (b) whether it is a lawful detention in order to secure the fulfilment of an obligation prescribed by law. Whether the deprivation is in accordance with the law and whether the relevant obligation is prescribed by law are questions separately considered in paragraphs 31 to 35 below. If not, and if there is a deprivation of liberty, the appellants must succeed, for the respondents cannot rely on the exception. But if, for purposes of the argument at this stage, compliance with the law be assumed, the respondents in my opinion bring themselves within the exception, for the public are in my opinion subject to a clear obligation not to obstruct a constable exercising a lawful power to stop and search for articles which could be used for terrorism and any detention is in order to secure effective fulfilment of that obligation.

Article 8

    27.  Article 8(1) provides that

    "Everyone has the right to respect for his private and family life, his home and his correspondence."

By article 8(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 …. for the prevention of disorder or crime …. or for the protection of the rights and freedoms of others."

    28.  The appellants contended that exercise of the section 45 stop and search power necessarily involves an interference with the exercise of the article 8(1) right, and therefore had to be justified under article 8(2). The respondents did not accept that there would necessarily be such interference, but accepted that there might, as where (for instance) an officer in the course of a search perused an address book, or diary, or correspondence. I have no doubt but that the respondents' concession is rightly made. I am, however, 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.

    29.  If, again, the lawfulness of the search is assumed at this stage, there can be little question that it is directed to objects recognised by article 8(2). The search must still be necessary in a democratic society, and so proportionate. But if the exercise of the power is duly authorised and confirmed, and if the power is exercised for the only purpose for which it may permissibly be exercised (ie. to search for articles of a kind which could be used in connection with terrorism: section 45(1)(a)), it would in my opinion be impossible to regard a proper exercise of the power, in accordance with Code A, as other than proportionate when seeking to counter the great danger of terrorism.

Articles 10 and 11

    30.  The power to stop and search under sections 44-45 may, if misused, infringe the Convention rights to free expression and free assembly protected by articles 10 and 11, as would be the case, for example, if the power were used to silence a heckler at a political meeting. I find it hard to conceive of circumstances in which the power, properly exercised in accordance with the statute and Code A, could be held to restrict those rights in a way which infringed either of those articles. But if it did, and subject always to compliance with the "prescribed by law" condition discussed below, I would expect the restriction to fall within the heads of justification provided in articles 10(2) and 11(2).

D. Lawfulness

    31.  The expressions "prescribed by law" in article 5(1), 5(1)(b), 10(2) and 11(2) and "in accordance with the law" in article 8(2) are to be understood as bearing the same meaning. What is that meaning?

    32.  The appellants relied on a number of authorities such as Malone v United Kingdom (1984) 7 EHRR 14, paras 66-68, Huvig v France (1990) 12 EHRR 528, Hafsteinsdóttir v Iceland (App No 40905/98, 8 June 2004, unreported), paras 51, 55-6 and Enhorn v Sweden (2005) 41 EHRR 633, para 36, to submit that the object of this requirement is to give protection against arbitrary interference by public authorities; that "law" includes written and unwritten domestic law, but must be more than mere administrative practice; that the law must be accessible, foreseeable and compatible with the rule of law, giving an adequate indication of the circumstances in which a power may be exercised and thereby enabling members of the public to regulate their conduct and foresee the consequences of their actions; that the scope of any discretion conferred on the executive, which may not be unfettered, must be defined with such precision, appropriate to the subject matter, as to make clear the conditions in which a power may be exercised; and that there must be legal safeguards against abuse. These requirements, the appellants argued, were not met in the present case. They acknowledged, of course, that sections 44-47 of the 2000 Act were adequately accessible to the public. But they contended that "law" in this context meant not only the Act but also the authorisation and confirmation, and these were not accessible. Thus a member of the public would know that the section 44 power to stop and search could be conferred on the police, but would not know at any given time or in any given place whether it had been. He could not know whether, if he went to Battersea Park, he would be liable to be stopped and searched. Nor, if stopped and searched, could he know whether the constable was authorised to stop and search him. When, unknown to a member of the public, the power had been conferred on a constable, the constable's discretion to stop and search was broad and ill-defined, requiring no grounds of suspicion and constrained only by the condition that the power could be exercised only for the purpose of searching for articles of a kind which could be used in connection with terrorism.

    33.  The respondents did not, I think, challenge the principles advanced by the appellants, which are indeed to be found, with minor differences of expression, in many decisions of the Strasbourg court. But they strongly challenged the appellants' application of those principles to the present facts. They did not accept that the authorisation and confirmation were "law" in this context. They pointed to the court's acceptance in Malone, above, para 67, a case concerned with the covert interception of telephonic communications, that

    "the requirements of the Convention, notably in regard to foreseeability, cannot be exactly the same in the special context of interception of communications for the purposes of police investigations as they are where the object of the relevant law is to place restrictions on the conduct of individuals. In particular, the requirement of foreseeability cannot mean that an individual should be enabled to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly."

The court had recognised that in some fields legal rules could not be laid down with total precision (Bronda v Italy (1998) 33 EHRR 81, para 54) and that a measure of vagueness was inevitable if excessive rigidity was to be avoided Kuijper v Netherlands (App No 64848/01, 3 March 2005, unreported). There were, moreover, strong reasons for not publishing the details of authorisations, which would by implication reveal those places where such measures had not been put in place, thereby identifying vulnerable targets, and could undermine the ability of the police to use such powers effectively in cases where they suspected that terrorists might be operating and wished to conduct random stopping and searching in a particular area in the hope of catching them without giving them warning in advance. The respondents contended that the constable's discretion was closely constrained by the sole purpose for which the power could be properly exercised. An improper authorisation and confirmation were susceptible to challenge by judicial review. An improper stop and search would expose the constable to claims in tort for wrongful imprisonment, trespass to the person and goods, and breach of Convention rights.

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