The Right to Liberty and Privacy Right in Europe and the UK: Case Comment

The case originated by the application of two British nationals, Mr Kevin Gillan and Ms Pennie Quinton, against the United Kingdom of Great Britain and Northern Ireland alleging that the powers of stop and search used against them by the police breached their rights under arts 5, 8, 10 and 11 of the ECHR. The applicants were stopped and searched by police officers On 9 September 2003 near the site of an arms fair in east London, which was the subject of protests and demonstrations. The police officers told the applicants that they were searched under s 44 of the Terrorism Act 2000.  The 1st applicant, a doctoral student, was riding a bicycle and carrying a rucksack near the arms fair, on his way to attend the protest against the arms fair. He was told that he was being stopped for articles which could be used for acts of terrorism and handed a notice to this effect. He claimed that what the police officers responded for his inquiry about the reason he was stopped was that a lot of protesters were about and the police were concerned that they would cause trouble. Despite the seized computer printouts that give information about the protest, nothing incriminating was found on the 1st claimant and he was allowed to go after around 20 minutes of detention. The second applicant, a freelance journalist, holding a camera, wearing a photographer's jacket and carrying a small bag was stopped near the arms fair after she had apparently emerged from some bushes to film the protests. She was searched and told to stop filming by a police officer notwithstanding that she showed her press cards to show who she was. She was allowed to go on her way as nothing incriminating was found. She claimed that her intention to make a documentary or sell footage of it was disrupted as she did not feel able to return to the demonstration, due to the feeling of intimidation and distress.

The claimants sought to challenge the legality of the power of the executive (the police) to stop and search that was used against them, through judicial review. First, they argued that the authorisation and confirmation in question (under section 44 of the 2000 Act) were ultra vires and unlawful on the grounds of their geographical (which covered the entire London area) and temporal (which formed part of a rolling programme for over 8 years) coverage. They claimed that the authorization is unlawful as it was not made under the ground of necessity, rather on expediency. Secondly, they complained that the deployment of the s 44 authorisation by the police to stop and search them was unlawful and against the legislative intention and that the direction given to officers was either non-existent or intentionally left to cause the abuse of the power by the officers. Thirdly, the applicants argued that the power of authorisations under s 44 and its exercise infringed their ECHR rights under article 5, 8, 10 and 11.

On 31 October 2003, the Divisional Court rejected their claims on all grounds, and declared the powers as lawful and proportionate. The court, however, accepted the lack of guidance for police officers as to how to exercise their power to stop and search and suggested the police institute to have proper training and briefing procedures for Section 44. The applicants appealed to the Court of Appeal. On 29 July 2004, the Court of Appeal held that s 44 and 45 of the Act did not contradict with the provisions of the ECHR. The court recognized the exceptional nature of the power under s 44, but it said that the power is under a number of safeguards. The court of appeal, like the divisional court, however, pointed a suggestion for the police institute to have proper training and briefing procedures for Section 44. The applicants appealed to the House of Lords. On 8 March 2006, The House of Lords dismissed the applicants' further appeals holding that the authorisation under s 44, as well as its confirmation by the Home secretary were lawful and both the geographical scope and the duration of the authorisation were justified. The court also found that the authorisation for the use of stop and search powers to be compatible with ECHR.

Having exhausted their domestic remedies, the applicants applied to the ECtHR alleging that the police’s act of stop and search against the applicants under s 44 to 47 violated their rights under arts 5, 8, 10 and 11 of the ECHR. The ECtHR held that there had been a violation of art 8 of the Convention. The court also, while declining to rule on art 5(1), stated that the coercion happened on the appellants was indicative of a deprivation of liberty within the meaning of art 5(1). The following pages will try to give explanation on article 5 and 8 and evaluate the court’s approach and reasoning on the case.

The first legal issue the court analysed relates to article 5 of the convention which provides for right of liberty of a person. The right to liberty regulates state powers of detention and provides safeguards against ill treatment of detainees. It seeks to prevent the arbitrary use of executive power and create a climate conducive to the realization of human rights.. The ECHR, rather than simply protecting individuals against illegal and arbitrary detention, on its article 5(1), provides for an exhaustive list of grounds upon which detention is justified. If the detention is based on grounds other than listed under article 5(1), it is not justifiable and not permitted. For example, in A and Others v United Kingdom case, which involved the law that authorise the detention of alien terror suspects, the ECtHR held that this power of detention would fall foul of the principle that paras (a) to (f) amount to an exhaustive list of exceptions and that only a narrow interpretation of these exceptions is compatible with the aims of Article 5. The fulfilment of the grounds listed under article 5(1) by itself does not justify detention. Rather the detention should also be lawful and not arbitrary.

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