Back to top
News In Focus

European judges find "stop and search" illegal

13 January 2010

Police powers in the Terrorism Act 2000 to stop and search people without grounds for suspicion have been declared illegal by the European Court of Human Rights.

Judges yesterday upheld a case brought by two Londoners, Kevin Gillan and Pennie Quinton, who were both stopped and searched on a day in 2003. Mr Gillan was on his way to join a demonstration against an arms fair and Ms Quinton was a press photographer intending to film the protests. Nothing incriminating was found on either.

The English courts had upheld the legislation because of the risk of terrorism in London, but the European judges said the powers, in ss 44 and 45 of the Act, were in breach of article 8 the Convention, which protects the right to respect for private and family life.

With the concept of personal autonomy underlying article 8, the court said, "The Article also protects a right to identity and personal development, and the right to establish relationships with other human beings and the outside world. It may include activities of a professional or business nature. There is, therefore, a zone of interaction of a person with others, even in a public context, which may fall within the scope of 'private life'."

Although the complainers had each been detained for less than 30 minutes, they had been deprived of any freedom of movement during that time. Had they refused to comply they would have been liable to arrest.

Insufficient safeguards

The court considered "that the use of the coercive powers conferred by the legislation to require an individual to submit to a detailed search of his person, his clothing and his personal belongings amounts to a clear interference with the right to respect for private life".

Because the powers were "neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse", they did not fall within the exemption for measures "in accordance with the law and necessary in the interests of national security". In the court's view, "the safeguards provided by domestic law have not been demonstrated to constitute a real curb on the wide powers afforded to the executive so as to offer the individual adequate protection against arbitrary interference".

The European Court also commented that the element of coercion was "indicative of a deprivation of liberty within the meaning of article 5(1)", but it did not require to decide the point in view of its decision on article 8.

Lord Carlile, the independent reviewer of the anti-terrorism laws, said he had repeatedly argued that the police were making excessive use of their powers, and parts of the Act might now have to be rewritten. "I have said year on year that its use could be reduced by 50% without damaging national security, and I remain of that view."

Click here to view the judgment.

Have your say