R (on the application of Gillan (FC) and another (FC)) (Appellants) v. Commissioner of Police for the Metropolis and another (Respondents)
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. This is the test which any interference with or derogation from a Convention right must meet if a violation is to be avoided.
35. The stop and search regime under review does in my opinion meet that test. The 2000 Act informs the public that these powers are, if duly authorised and confirmed, available. It defines and limits the powers with considerable precision. Code A, a public document, describes the procedure in detail. The Act and the Code do not require the fact or the details of any authorisation to be publicised in any way, even retrospectively, but I doubt if they are to be regarded as "law" rather than as a procedure for bringing the law into potential effect. In any event, it would stultify a potentially valuable source of public protection to require notice of an authorisation or confirmation to be publicised prospectively. The efficacy of a measure such as this will be gravely weakened if potential offenders are alerted in advance. Anyone stopped and searched must be told, by the constable, all he needs to know. In exercising the power the constable is not free to act arbitrarily, and will be open to civil suit if he does. It is true that he need have no suspicion before stopping and searching a member of the public. This cannot, realistically, be interpreted as a warrant to stop and search people who are obviously not terrorist suspects, which would be futile and time-wasting. It is to ensure that a constable is not deterred from stopping and searching a person whom he does suspect as a potential terrorist by the fear that he could not show reasonable grounds for his suspicion. It is not suggested that the constables in these cases exercised their powers in a discriminatory manner (an impossible contention on the facts), and I prefer to say nothing on the subject of discrimination.
IV. The exercise of the powers in this case
36. In summarising the facts in paragraphs 2 and 3 above, I have deliberately omitted reference to matters mentioned by the respective appellants in their witness statements which, if accepted, might show that the stop and search powers were improperly exercised in their cases. This is an aspect which, because of the course these proceedings have taken, has not been explored in sworn evidence by the appellants, or tested in cross-examination, or made the subject of any evidence by the officers who conducted the searches. It is a matter which the appellants may, if so advised, pursue in county court proceedings which they have already issued. It is a matter which the House cannot fairly resolve at this stage in these proceedings. I therefore express no opinion upon it.
37. I would accordingly dismiss both appeals and invite the parties to make written submissions on costs within 14 days.
LORD HOPE OF CRAIGHEAD
38. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Bingham of Cornhill. I agree with it, and for the same reasons I too would dismiss both appeals. I should like however to add a few words on the two aspects of the case that seem to me to be the most troublesome.
39. They both relate to the discrimination issue to which my noble and learned friend Lord Brown of Eaton-under-Heywood very properly draws attention in his speech. How does the fact that it is likely to be difficult in practice to detect discriminatory use of the power square with the principle of legal certainty that requires that the use of such powers must be in accordance with the law if they are to be compatible with the Convention rights? And how in practice is discriminatory use of the power to be prevented, given the nature of the terrorist threats that it is designed for? I should like to take these questions in the reverse order, because the answer that I would give to the first question has a close bearing on the problem that is raised by the second.
40. The extent of the stop and search power in section 45 of the Terrorism Act 2000 is defined in subsection (1) of that section. This subsection provides (a) that it may be exercised only for the purpose of searching for articles of a kind which could be used in connection with terrorism, and (b) that it may be exercised whether or not the constable has grounds for suspecting the presence of articles of that kind. It is combined with a power to detain the person or vehicle that the constable proposes to search, but only for such time as is reasonably required to permit the search to be carried out at or near the place where the person is stopped: section 45(4). The power may only be exercised in an area or at a place specified in an authorisation given under section 44(1) or (2), and an authorisation may be given only if the person giving it considers it expedient for the prevention of acts of terrorism. An authorisation must be confirmed by the Secretary of State within 48 hours, failing which it ceases to have effect: section 46(4).
41. One has only to observe the huge numbers of people moving every day through this country's transport network to appreciate the fact that it would be wholly counter-productive for the police to be compelled to exercise the section 44 power in these circumstances on a basis that was a purely random one. Those they might wish to stop for very good reasons would slip through the net as the process of random selection was being conducted. A brief study of the selection process would be enough to guide the terrorist as to how to organise his movements so that he could remain undetected. A system that is to be effective has to be flexible. Precise rules cannot be laid down in advance. Much has to be left to the discretion of the individual police officer.
42. Common sense tells us that the nature of the terrorist threat will play a large part in the selection process. Typically terrorist acts are planned, organised and perpetrated by people acting together to promote a common cause rather than by individuals. They will have a common agenda. They are likely to be linked to sectors of the community that, because of their racial, ethnic or geographical origins, are readily identifiable. That was true of sectarian violence during the troubles in Northern Ireland, as Simon Brown LJ pointed in R (European Roma Rights Centre) v Immigration Officer at Prague Airport (United Nations High Commissioner for Refugees intervening)  QB 811, 840G-H, para 86 In that passage he was contemplating the use of stop and search powers following a terrorist outrage. It is certainly true today, as the current wave of international terrorism is linked to groups that have an Islamic fundamentalist background.
43. What then if it is found that the police are using the section 44 power more frequently to stop Asians than other racial groups in the community? Does this amount to direct discrimination contrary to domestic law, as Mr Rabinder Singh QC suggested from time to time in the course of his argument? The issue does not arise directly in this case, of course, because neither of the appellants is of Asian origin. But it cannot be overlooked, especially in view of the concern that the House expressed in R (European Roma Rights Centre) v Immigration Officer at Prague Airport (United Nations High Commissioner for Refugees intervening)  2 AC 1 about the fact that all Roma applicants were being routinely treated, simply because they were Roma, with more suspicion and subjected to more intensive and intrusive questioning than non-Roma. As Baroness Hale of Richmond said, at p 64B-C, para 97, the setting up of an operation to meet the challenge of dealing with an influx of asylum seekers from one comparatively easily identified racial or ethnic group required enormous care if it was to be done without discrimination. The evidence showed that the operation that was being conducted in that case was inherently and systematically discriminatory and unlawful.
44. The decision in the Roma case reminds us that if a person discriminates on racial grounds the reason why he does so is irrelevant. The use of the section 44 power on racial grounds is not exempt for being treated as discriminatory simply because of the purpose for which it is being exercised. It is no answer to say that the time and place for the exercise of the section 44 power was selected in response to the threat of a terrorist outrage, any more than it was to say that the procedures that were being operated at Prague airport were designed to deal with an influx through that airport of asylum seekers of Roma origin. Nor is it an answer to say that a decision as to when and where to exercise the power was based on common sense, as Lord Brown points out: para 88. The whole point of making it unlawful for a public authority to discriminate on racial grounds is that impressions about the behaviour of some individuals of a racial group may not be true of the group as a whole. Discrimination on racial grounds is unlawful whether or not, in any given case, the assumptions on which it was based turn out to be justified.
45. Where then does this leave the police officer when he is deciding whom to stop and search in the exercise of the section 44 power? The key must surely lie in the point which Baroness Hale made in her speech in the Roma case, at p 59H, para 82, that the object of the legislation is to ensure that each person is treated as an individual and not assumed to be like other members of the group. That was the trap into which the immigration officers fell at Prague airport, as the evidence showed that all Roma were being treated in the same way simply because they were Roma. So a police officer who stops and searches a person who appears to be Asian in the exercise of the section 44 power must have other, further, good reasons for doing so. It cannot be stressed too strongly that the mere fact that the person appears to be of Asian origin is not a legitimate reason for its exercise.
46. Times and places will vary, of course, and the numbers and mixture of people of different races and ethnic backgrounds that one sees using buses, railways and the London Underground may not be typical of the places where authorisations are given throughout the country. But a decision to use the section 44 power will in practice always be based on more than the mere fact of a person's racial or ethnic origin if it is to be used properly and effectively, especially in places where people are present in large numbers. The selection process will be more precisely targeted, even if in the end it is based more on a hunch than on something that can be precisely articulated or identified. Age, behaviour and general appearance other than that relating to the person's racial or ethnic background will have a part to play in suggesting that a particular person might possibly have in his possession an article of a kind which could be used in connection with terrorism. An appearance which suggests that the person is of Asian origin may attract the constable's attention in the first place. But a further selection process will have to be undertaken, perhaps on the spur of the moment otherwise the opportunity will be lost, before the power is exercised. It is this further selection process that makes the difference between what is inherently discriminatory and what is not.
47. On balance, therefore, I think that it is not inevitable that stopping persons who are of Asian origin in the exercise of the section 44 power will be found to be discriminatory. But the risk that it will be employed in a discriminatory fashion cannot be discounted entirely. No more can the risk that the power will be used on occasions, as the appellants claim but has yet to be established by evidence, for a purpose that has nothing to do with the prevention of acts of terrorism. These thoughts lead to the problem of satisfying the test of legal certainty. This must be done if the use of the section 44 power is not to be open to the objection that it is, by its very nature, arbitrary.
48. The sight of police officers equipped with bundles of the stop/search form 5090 which is used to record the fact that a person or vehicle was stopped by virtue of sections 44(1) or 44(2) has become familiar in Central London since the suicide bombings that were perpetrated on 7 July 2005 and the attempts to repeat the attacks two weeks later. They can be seen inside the barriers at stations on the London Underground, watching people as they come through the barriers and occasionally stopping someone who attracts their attention and searching them. Most people who become aware of the police presence are there because they want to use the transport system. The travelling public are reassured by what they see the police doing at the barriers. They are in the front line of those who would be at risk if there were to be another terrorist outrage. But those who are singled out, stopped and searched in this way may well see things differently. They may find the process inconvenient, intrusive and irritating. As it takes place in public, they may well also find it embarrassing. This is likely to be the case if they believe, contrary to the facts, that they are being discriminated against on grounds of race. These features of the process give rise to this question. Are the limits on the use of the power sufficient to answer a challenge that the Convention rights of the person who is searched are being violated because its use is unforeseeable and arbitrary?
49. From that person's perspective the situation is one where all the cards are in the hands of the police. It is they, and not the general public, who know that an authorisation is in force and the area that it relates to. It is they who decide when and where within that area they should exercise the power that has been given to them. It is they who decide which persons or which vehicles should be stopped and searched. Sections 44(1) and 44(2) make it clear that the power may be exercised only by a constable in uniform. Section 45(1)(a) provides that the power may be exercised only for the purpose of searching for articles of a kind which could be used in connection with terrorism. But no criterion is laid down in the statute or in any published document as to the precise state of mind that the constable must be in before the power can be exercised.
50. Section 45(1)(b) provides that the power may be exercised whether or not the constable has grounds for suspecting the presence of articles of a kind which could be used in connection with terrorism. The definition of the word "terrorism" for the purposes of the Act is a wide one, and the matter is left to the judgment of each individual police officer. The first indication that members of the public are likely to get that they are liable to be stopped and searched is when the order to stop is given. Those who are well informed may get some indication as to what is afoot when they see the police with bundles of forms in their hands looking in their direction. But for most people the order to stop will come as a surprise. Unless they are in possession of articles of the kind that the constable is entitled to search for, they may well wonder why they have been singled out for the treatment that they are being subjected to.
51. There is, of course, a strong argument the other way. If the stop and search procedure is to be effective in detecting and preventing those who are planning to perpetrate acts of terrorism it has to be like this. Advertising the time when and the places where this is to be done helps the terrorist. It impedes the work of the security services. Sophisticated methods of disguise and concealment may be used where warnings are given. Those involved in terrorism can be expected to take full advantage of any published information as to when and where the power is likely to be exercised. So the police need to be free to decide when and where the use of the procedure is to be authorised and whom they should stop on the spur of the moment if their actions are to be a step ahead of the terrorist. Must this system be held to be unlawful under Convention law, as Mr Rabinder Singh submitted it should, on the ground that it is arbitrary?
52. The question whether the process is in accordance with the law for the purposes of the Convention is not answered merely by a finding that it is lawful under domestic law. That is only the first stage in the analysis: see R v Governor of Brockhill Prison, ex p Evans  2 AC 19, 38B-E. There are two further questions that must be answered. One is whether, assuming that the process is lawful under domestic law, it nevertheless fails to comply with the general requirements of the Convention as to the quality of the law in question. These requirements are based on the principle that any restrictions on the rights and freedoms of the individual must be prescribed by law in a way that is sufficiently accessible and sufficiently precise to enable the individual to foresee the consequences. The other is whether, assuming again that the two previous criteria are met, the process is nevertheless open to criticism on the ground that it is arbitrary. The appellants submit that the criterion of foreseeability is not met because the powers are widely drawn, and because the public does not have access to the authorisations which are not published. They also submit that, because it is so difficult to detect an improper or discriminatory use of it, the power that is given to the constable is arbitrary.
53. The criterion of lawfulness can be examined in four stages. First there is the legislation. Next, there is the general guidance that is given by Code A as to how the powers under section 44 are to be exercised. Then there are the authorisations themselves, whose issue is a necessary preliminary to the exercise of the section 44 power and which the Secretary of State must confirm. Finally, and crucially, there is the exercise of the power by the police officers who are authorised to make use of it.
54. Guidance as to how the question should be approached is provided by the Strasbourg authorities. The European Court recognised in Kuijper v The Netherlands, Application no 64848/01, 3 March 2005, pp 13-14, that legislation may have to avoid excessive rigidity if it is to keep pace with changing circumstances. It may be couched in terms which, because they are to a greater or lesser extent vague, must be left to interpretation and application to the facts by the courts. In Huvig v France (1990) 12 EHRR 528, paras 33-34, the court also recognised the value, in the context of telephone tapping, of regulatory control, including supervision by the courts if need be, even though it was found to be lacking in that case in the absence of legislation or case law. In Malone v United Kingdom (1985) 7 EHRR 14, para 67, the court said that the requirement of foreseeability did not mean that an individual had to be able to foresee when his communications were likely to be intercepted by the authorities. Nevertheless the law had to be sufficiently clear in its terms to give citizens an adequate indication of the circumstances in which and the conditions on which the authorities were empowered to resort to this.
55. I think that one can draw together the guidance to be found in these authorities, and in the others to which Lord Bingham has referred, in this way. The use of the section 44 power has to be seen in the context of the legislation that provides for it. The need for its use at any given time and in any given place to be authorised, and for the authorisation to be confirmed within 48 hours, provides a background of law that is readily accessible to the citizen. It provides a system of regulatory control over the exercise of the power which enables the person who is stopped and searched, if he wishes, to test its legality in the courts. In that event the authorisation and the confirmation of it will of necessity, to enable the law to be tested properly, become relevant evidence. The guidance in para 2.25 of Code A warns the constable that the power is to be used only for reasons connected with terrorism, and that particular care must be taken not to discriminate against members of minority ethnic groups when it is being exercised. It is no more precise than that. But it serves as a reminder that there is a structure of law within which the power must be exercised. A constable who acts within these limits is not exercising the section 44 power arbitrarily.
56. As the concluding words of para 67 of the decision in Malone v United Kingdom (1985) 7 EHRR 14 indicate, the sufficiency of these measures must be balanced against the nature and degree of the interference with the citizen's Convention rights which is likely to result from the exercise of the power that has been given to the public authority. The things that a constable can do when exercising the section 44 power are limited by the provisions of section 45(3) and 45(4). He may not require the person to remove any clothing in public except that which is specified, and the person may be detained only for such time as is reasonably required to permit the search to be carried out at or near the place where the person or vehicle has been stopped. The extent of the intrusion is not very great given the obvious importance of the purpose for which it is being resorted to. In my opinion the structure of law within which it is to be exercised is sufficient in all the circumstances to meet the requirement of legality.
57. It should be noted, of course, that the best safeguard against the abuse of the power in practice is likely to be found in the training, supervision and discipline of the constables who are to be entrusted with its exercise. Public confidence in the police and good relations with those who belong to the ethnic minorities are of the highest importance when extraordinary powers of the kind that are under scrutiny in this case are being exercised. The law will provide remedies if the power to stop and search is improperly exercised. But these are remedies of last resort. Prevention of any abuse of the power in the first place, and a tighter control over its use from the top, must be the first priority.LORD SCOTT OF FOSCOTE
58. I have had the advantage of reading in advance the opinion of my noble and learned friend Lord Bingham of Cornhill and am in full agreement with his reasons for concluding that these appeals should be dismissed. I want to add just a few words of my own.
59. Lord Bingham, in paragraphs 14 and 15 of his opinion, has rejected the appellants' contention that the adjective "expedient" in section 44(3) of the Act of 2000 should be construed as meaning "necessary and suitable in all the circumstances". This construction, say the appellants, is required in order to comply with the principle of legality. The stop and search powers of the police where a section 44 "authorisation" is in place are exercisable without the need for a prior reasonable suspicion that the object of the search is engaged in any wrongful conduct and, therefore, interfere with "fundamental notions of liberty and privacy of the individual" (para.40 of the appellants' Case). Parliament, it is argued, cannot have intended the general words of sub-section (3) to permit the infringement of fundamental common law liberties. "Expedient" should be read as "necessary".
60. My Lords, I would reject this argument for all the reasons given by Lord Bingham and would add that the adjective "expedient" was deployed in Part V of the Act ("Counter-Terrorist Powers") not only in section 44(3) but also in section 48(2). In section 44(3) the adjective was used to describe the only purpose for which stop and search authorisations could be given. In section 48(2) the adjective was used to describe the only purpose for which an authorisation enabling a police officer "to prohibit or restrict the parking of vehicles on a [particular] road specified in the authorisation" could be given. A section 48 parking authorisation may only be given "if the person giving it considers it expedient for the prevention of acts of terrorism". It is not remotely arguable that a power to impose parking restrictions interferes with fundamental notions of liberty or privacy; nor can it be supposed that the word "expedient" can have a stricter construction in section 44(3) than it has in section 48(2). Parliament's use of the same language in section 48(2) as in section 44(3) reduces greatly, in my opinion, the weight of the appellants' argument on construction. I am therefore in respectful agreement with what Lord Bingham has said in paragraph 15 of his opinion and, in particular, with the last sentence of that paragraph.
61. The appellants, in challenging the validity of the stop and search authorisation in reliance on which the police officers stopped and searched them, contend that the authorisation, and its confirmation by the Home Secretary, constituted an excessive and disproportionate response to the threat of terrorist activity in London at that time. They say that the authorisation and confirmation went outside the boundaries of a reasonable response to that threat.
62. The problem, to my mind, with a challenge of this character is that an assessment of the reasonableness of the response requires an assessment of the degree of seriousness of the terrorist threat to which the authorisation was a response. This latter assessment will in most cases require some knowledge of the intelligence material on which the police and the Home Secretary relied when making their own assessment of that threat and of what should be done in response to it. The appellants have not contended that the giving of a section 44 authorisation could never be a proportionate response to a threat of terrorist activity. They accept, and indeed contend, that a balance must be struck between, on the one hand, the degree of interference with ordinary liberties brought about by police exercising their section 44 stop and search powers and, on the other hand, the degree of risk to the public posed by the terrorist threat as it appears from the available intelligence material.
63. The appellants say that when this balance is struck the giving of the authorisation can be judged to be a disproportionate response. I disagree for two reasons. First, the interference with the fundamental rights of individuals brought about by a police power to stop and search without the need for reasonable suspicion of wrongdoing is not, in my opinion, of overwhelming weight. It is not an interference of the same order as, for example, an indefinite detention on undisclosed grounds. A stop and search will often be very annoying to the person concerned, and may sometimes produce a feeling of humiliation or a perception of victimisation or discrimination; but any invasion of privacy will be shortlived and any deprivation of liberty will usually be no more than theoretical. These are the matters that must go into one side of the scale when the balance is struck. What goes into the other side of the scale must depend on the intelligence material that has been relied on as justifying, or requiring, the giving of the authorisation. I would not, speaking for myself, expect a challenge to the validity of a section 44 stop and search authorisation, based on the alleged disproportionate nature of that response to a perceived threat of terrorism, to be able to succeed without the court having had an opportunity to review the intelligence material that had been relied on.