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Section 44 ‘breaches human rights’
14 Jan 2010

Police powers to stop and search people under anti-terror laws without grounds for suspicion are illegal, the European Court of Human Rights has ruled, but the Home Office has said it will appeal the decision.

The ruling, made on January 12, follows the case of two people stopped near an arms fair in London in 2003.

Kevin Gillan was detained by police for about 20 minutes as he cycled to join a demonstration. Pennie Quinton, a journalist, was in the area to film the protest but was detained, according to police records, for five minutes, though Ms Quinton claims it felt like 30.

Overturning a court ruling made in 2003, the European Court of Human Rights has said the actions of the police by misusing the anti-terror law violated the individual’s rights to respect for a private and family life.

They were awarded £30,400 to cover legal costs.

The Home Office has since announced plans to appeal the decision. Policing Minister David Hanson said: “I am disappointed with the European Court of Human Rights ruling in this case as we won all other challenges in the UK courts, including at the House of Lords. We are considering the judgement and will seek to appeal.”

Section 44 of the Terrorism Act 2000 allows the Home Secretary to authorise police to conduct random searches in certain circumstances.

But the European Court of Human Rights said that Mr Gillan’s and Ms Quinton’s rights had been violated under Article 8 of the European Convention on Human Rights.

The stop and search powers were “not sufficiently circumscribed” and there were not “adequate legal safeguards against abuse”, the court said.

Adding that “the risks of the discriminatory use of the powers” were “a very real consideration”.

The ruling made this week overturns decisions made by the High Court in 2003, and upheld by the Court of Appeal and the House of Lords.

The Section 44 search powers have often been deemed controversial, with the Metropolitan Police Service (MPS) scaling back use of the powers in May 2009. Commissioner Sir Paul Stephenson said the powers would be restricted to “iconic” sites, including Parliament and Buckingham Palace.

A spokesperson said that officers were not being issued with any new instructions in light of the European Court of Human Rights’ ruling.

Corinna Ferguson, legal officer for Liberty and acting for the applicants, said: “Liberty has consistently warned the Government about the dangers of stop and search without suspicion and actively campaigned for the tightening up of the infamous section 44 power. The public, police and Court of Human Rights all share our concerns for privacy, protest, race equality and community solidarity that come with this sloppy law. In the coming weeks, Parliamentarians must finally sort out this mess.”

Human Rights Charity Amnesty International, has said that the court ruling does not go far enough and that the legislation should be scrapped entirely, calling it “abusive, discriminatory and unlawful”.

Halya Gowan of Amnesty International’s Europe Programme said: “These police powers to stop and search under the Terrorism Act clearly violate people’s right to privacy and family life and the Government must act urgently to scrap them.

“They also contravene the rights to liberty, freedom of expression and assembly, and freedom from arbitrary detention, all of which the UK is bound to uphold.”

Solicitor advocate Simon McKay told Police Professional he was not surprised by the court’s ruling: “This is a decision that was to some extent predictable. Lord Carlile, the Terrorism Commissioner, has repeatedly expressed concern about the overuse of Section 44, a view shared by a number of other experts.

“The provision has failed on legal certainty and proportionality grounds. It is ambiguous and its use was, and is always going to be, vulnerable to the indiscriminate exercise of discretion by police officers; not necessarily deliberately, but through a process of natural evolution. It is the equivalent of the erosion of rights by osmosis.  

“The decision from Strasbourg may say more about the way the way legislation is being drafted than just an individual provision in the Terrorism Act 2000. In the aftermath of the unanimous decision against the United Kingdom on its DNA retention policy in Marper and now the Gillan and Quinton case, judgements that the legislature and to some extent the judiciary pay lip service to the Human Rights Act 1998 are perhaps inevitable.”



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