Updated:- In a surprise decision, the EU Court of Human Rights has overturned a House of Lords judgement and told Britain that its police stop-and-search powers are invalid. The government must now reframe the laws to abide by human rights.
Controversial stop-and-search powers ruled invalid by human rights court
A ruling in the European Court of Human Rights (EUCHR) over police powers, applicable to Britain, may have impact in Australia in the ACT and Victoria where similar human rights laws apply.
The EU ruling may also influence the outcome of prosecutions brought under stop-and-search powers in states such as WA, where there is no human rights law but local police decisions to stop people are equally arbitrary and lacking in safeguards.
Certainly the EU ruling will encourage Australian defence lawyers to draw the local court’s attention to the EU case.
The EUCHR ruled on 12 Jan 2010 that Britain’s controversial stop and search powers were illegal. The powers, under the Terrorism Act 2000, allowed police to stop and search people without grounds for suspicion, and so violated article eight of the European Convention on Human Rights, the court ruled.
The cased involved Kevin Gillan, 32, a student,, and Pennie Quinton, 38 a freelance photojournalist, who were held under the act in 2003. They were stopped and searched while on their way to a demonstration at Europe’s biggest arms fair at the ExCel centre in Docklands, East London.
Seven judges sitting in the Strasbourg court ruled that the pair’s right to respect for a private and family life had been violated. The court awarded them $53,000 in compensation.
The judgment overturned a House of Lords ruling in 2006 when five Law Lords unanimously rejected Gillan and Quinton’s appeal.
The ruling will force the government to amend the legislation to comply with the human rights convention.
Section 44 of the Terrorism Act allowed the British Home Secretary to authorise police to make random searches in certain circumstances. The act removed the previous requirements that the police had to have grounds for suspicion in order to conduct a search. Instead officers only had to show it was “expedient” to do so.
The lack of a stricter legal test and the absence of sufficient safeguards meant that this was a breach of the European Convention on HR, the court said, adding that it was “struck” by how widely the powers had been used, with over 100,000 searches conducted.
Between 2004 and 2008 the number of such searches increased from 33,177 to 111,278.
In words which should reverberate around the streets of Perth, the court said:
“In the court’s view, the wide discretion conferred on the police under the 2000 act, both in terms of the authorisation of the power to stop and search and its application in practice, had not been curbed by adequate legal safeguards so as to offer the individual adequate protection against arbitrary interference.”
Update
The powers were supposed to be used in limited areas designated by the police, confirmed within 48 hours by the British Home Secretary and renewed every 28 days.
Instead of defining selected target areas, all of Greater London was quietly designated as suitable for random searches. Instead of applying the power for a limited time when there was escalated fear of a terrorist threat, the designation remained in force for years.
The stop and search counter-terrorism powers – under which police are supposed to be searching for “articles that could be used in connection with terrorism” – simply became another daily police tactic to use against the public. They were used against tourists taking photographs, peace protesters outside an arms fair, and newspaper photographers trying to do their jobs.
Use of the powers quadrupled since first being invoked – entirely inappropriately – to throw aged pensioner Walter Wolfgang out of the Labour party conference for heckling Home Secretary Jack Straw in 2005. Last year the Metropolitan Police tried to restrict the use of section 44 to certain areas, for example near parliament. But that move goes nowhere near complying with this judgment.
Lord Carlile, the official reviewer of terrorism laws, said the searches should be “necessary” rather than just “expedient”.
– further information:
http://www.guardian.co.uk/uk/2010/jan/12/euorpean-court-police-misuse-stop-search