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Arbitrary stop and search powers breach privacy rights

19 January 2010

The European Court of Human Rights has ruled that the privacy rights of two protestors were breached when they were stopped and searched by police on their way to an arms fair.

Kevin Gillan and Pennie Quinton were heading for a demonstration outside the Defence Systems and Equipment International Exhibition at the Excel Centre in London’s Docklands in September 2003, when they were searched by police under section 44 of the Terrorism Act 2000.

Gillan was cycling when police officers asked to search his rucksack for articles that could be used in connection with terrorism.

Quinton, a journalist, was already on location. She apparently emerged from bushes holding a camera. She was told to stop filming and was also searched.

Police records show that the two were stopped for 20 and five minutes respectively.

Their claims that the police had breached their rights to privacy, liberty, freedom of expression and freedom of assembly were rejected by all three English courts hearing the case.

The law lords found in 2006 that the intrusive search of a person could reach a level of seriousness likely to engage the operation of the Convention but that superficial searches, “the kind to which passengers uncomplainingly submit at airports”, could scarcely be said to reach that level.

The European Court of Human Rights, however, was “unpersuaded by the analogy drawn with the search to which passengers uncomplainingly submit at airports or at the entrance of a public building”.

“The search powers under section 44 are qualitatively different. The individual can be stopped anywhere and at any time, without notice and without any choice as to whether or not to submit to a search,” the court said.

Such searches, the court continued, constituted interferences that could only be lawful if made “in accordance with the law” and “necessary in a democratic society”.

Upholding the claimants’ contention, the Strasbourg judges found that the powers vested to the police under sections 44-47 of the Act could not be regarded as “in accordance with the law” because they dispensed with the condition of reasonable suspicion.

“The powers of authorisation and confirmation as well as those of stop and search under sections 44 and 45 of the 2000 Act are neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse,” the court ruled.

The judges pointed, in particular, to the breadth of the discretion conferred on the individual police officer whose decision to stop somebody could be “based exclusively on the ‘hunch’ or ‘professional intuition’ of the officer concerned”.

The court continued: “There is a clear risk of arbitrariness in the grant of such a broad discretion to the police officer.”

Gillan and Quinton were awarded €35,000 for costs, minus £1,150 received by way of legal aid. Their legal bill includes £8,178.92 costs of the civil liberties organisation Liberty, which took on the case, and the fees of three barristers totalling £32,473.14.

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