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Abstract
At the pre-trial stage of counter-terrorist investigations, an ‘Anglo-Saxon’ indulgence towards street-level policing powers has been brought to task by European human rights norms, especially privacy, which are exerting new forms of control over policing discretion and opening judicial oversight over traditional policing activity. This article examines these trends in relation to suspicionless counter-terrorist stop and search. While the European Court of Human Rights applied robust scrutiny in the case of Gillan v. United Kingdom, in stark contrast to the approach by the House of Lords, there exists a number of challenges which are threatening to weaken judicial scrutiny in this area. First, more recent European Court of Human Rights cases show a more indulgent stance being taken towards policing powers. Second, the precautionary nature of suspicionless counter-terrorist stop and search raises a number of difficulties in relation to effective oversight. In addition, it is a counter-terrorist measure of general application which, to date, has not been subjected to particularly rigorous scrutiny.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes on contributor
Genevieve Lennon is Chancellor's Fellow at the School of Law, University of Strathclyde. She holds a PhD in law from the University of Leeds. Her research interests lie in the areas of counter-terrorism law and policy, in particular in relation to human rights, accountability and counter-terrorist policing. She has published and presented on various aspects of counter-terrorism and policing. She was an invited attendee at Home Office/Homeland Security workshops on ‘Greenfield Aviation Security 2027′ (2010). She was a contributing editor to the Routledge Handbook of Law and Terrorism and is currently co-authoring a monograph, Protective Security against Terrorism (Cambridge University Press).
ORCID
Genevieve Lennon http://orcid.org/0000-0001-8275-5332
Notes
† This article takes account of the law up to February 2015.
1. Andrew Sanders and Richard Young, ‘Police Powers’, in Handbook of Policing, ed. Tim Newburn (Cullompton: Willan, 2003), 229.
2. See, for example: Simon Holdaway, ‘Discovering Structure: Studies of the British Police Occupational Culture’, in Police Research: Some Future Prospects, ed. Mollie Weatheritt (Aldershot: Avebury, 1989), 55–76; Michael Chatterton, ‘The Cultural Craft of Policing – Its Past and Future Relevance’, Policing and Society 5 (1995): 97; Richard Ericson, Making Crime: A Study of Detective Work (Toronto: University of Toronto Press, 1993).
3. Robert Reiner and Leonard Leigh, ‘Police Power’, in Individual Rights and the Law in Britain, ed. Gerald Chambers and Christopher McCrudden (Oxford: Clarendon Press, 1994), 69–108.
4. Gillan v. Commissioner of Police of the Metropolis [2006] UKHL 12 (Gillan(HL)).
5. App. No. 4158/05, (2010) 50 EHRR 45.
6. R v. Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115, 131 (per Lord Hoffmann).
7. R (on the application of Gillan) v. Commissioner of Police of the Metropolis [2003] EWHC 2545 (Admin) (Gillan (Divisional)) [44]. See also R (on the application of Gillan) v. Commissioner of Police of the Metropolis [2004] EWCA Civ 1067 [8].
8. Gillan (HL) [14].
9. Metropolitan Police Service, Section 44 Authorisation Data (London: Metropolitan Police Service 2010). The authorisation had to be limited to the police area, including internal waters, and need not extend that far (Terrorism Act 2000, ss.44(4), (4A), 44(4B) and 44(4ZA) (emphasis added)).
10. Gillan (Divisional) [44].
11. Terrorism Act 2000, s.46(2).
12. Approximately 997 square kilometres. Metropolitan Police Service, ‘About the Met’, http://content.met.police.uk/Site/about (accessed 1 December 2014).
13. Council of Civil Service Unions v. Minister for the Civil Service [1985] 1 AC 374, 412 (Lord Diplock).
14. Gillan (ECtHR).
15. Protected under Article 2 of Protocol 4, which the UK has not ratified.
16. Guzzardi v. Italy App. No. 7367/76, Ser A 39, (1981) 3 EHRR 333, [92].
17. Raimondo v. Italy App. No. 12954/87, Ser A 281-A, (1994) 18 EHRR 237.
18. Trijonis v. Lithuania App. No. 23333/02, 17 March 2005.
19. X v. Austria App. No. 8278/78, DR 18, 154, 13 December 1979.
20. App. No. 39692/09, (2012) 55 EHRR 14 (Austin (ECtHR)).
21. It was agreed the stop of the student lasted around 20 minutes but the journalist claimed her stop had taken around 30 minutes while the police claimed it was closer to five.
22. Terrorism Act 2000, s.47.
23. Gillan (ECtHR) [57]. See also Foka v. Turkey App. No. 28940/95, 24 June 2008.
24. The Police and Criminal Evidence Act 1984 Code A: Code of Practice for the Exercise by Police Officers of Statutory Powers of Stop and Search (London: Home Office, 2008).
25. Gillan (HL) [30].
26. The relevant version was the Code issued under Police and Criminal Evidence Act 1984 (Codes of Practice) (Revisions to Code A) (No.2) 2008, SI 2008/3146.
27. Police and Criminal Evidence Act 1984 s.67(10)–(11).
28. Gillan (ECtHR) [85].
29. See, for example, Joint Committee on Human Rights, Demonstrating Respect for Rights? (2008-09 HL 47-I/HC 320-I).
30. Gillan (HL) [28].
31. Ibid., [1].
32. Department of Transport, Air Traffic by Type of Service, Operator and Airport, UK: Time Series (London: Department of Transport, 2013).
33. Gillan (ECtHR) [64].
34. Ibid., [64].
35. Ibid., [63].
36. Ibid., [63].
37. Sunday Times v. United Kingdom App. No. 13166/87, Ser A 217, (1992) 14 EHRR 229.
38. S and Marper v. United Kingdom App. No. 30562/04, 4 December 2008, (2009) 48 EHRR 50.
39. Huvig v. France App. No. 11105/84, Ser A 176-B, (1990) 12 EHRR 528.
40. Gillan (HL) [75]; Gillan (ECtHR) [78].
41. Terrorism Act 2000 (TACT 2000), ss.44, 46.
42. Gillan (ECtHR) [80].
43. Genevieve Lennon, Policing Terrorist Risk: Stop and Search under the Terrorism Act 2000, Section 44 (unpublished PhD thesis, University of Leeds, 2011) quoting Lord Carlile (the Independent Reviewer of Terrorism Legislation).
44. Full data for all forces have never been released. However, see Lord Carlile, Report on the Operation in 2009 of the Terrorism Act 2000 and of Part I of the Terrorism Act 2006 (London: HMSO, 2010), para. 55 cf. Gillan v. UK [80].
45. Metropolitan Police Service, Section 44 Authorisation Data (London: Metropolitan Police Service, 2010).
46. Hansard (House of Commons) vol.511 cols.24WS-28WS 10 June 2010 (Nick Herbert, MP).
47. Metropolitan Police Service, Section 44 Authorisation Data.
48. Gillan (ECtHR) [80].
49. Gillan (HL) [35].
50. See, further Marc Sageman, Understanding Terror Networks (Philadephia: University of Pennsylvania Press, 2004).
51. Lennon, Policing Terrorist Risk.
52. Within the Home Office forces, there were 332 terrorism-related arrests from 578,048 stops (Home Office, Statistics on Race and the Criminal Justice System (London: Home Office, 2002–2004, 2006); Ministry of Justice, Statistics on Race and the Criminal Justice System (London: Ministry of Justice, 2007–2011)).
53. Lennon, Policing Terrorist Risk.
54. Gillan (HL) [29], [30], [35] (Lord Bingham); [55] (Lord Hope); Gillan (ECtHR) [83].
55. Gillan (ECtHR) [83].
56. Ibid., [84].
57. Idid., [85]. See also Gillan (HL) [43]–[47] (Lord Hope) and [76]–[92] (Lord Brown).
58. Gillan (ECtHR) [85].
59. HC vol. 513 col. 540 8 July 2010 (Theresa May, MP).
60. Terrorism Act 2000 (Remedial) Order 2011, SI 2011/631.
61. Protection of Freedoms Act 2012, s.61.
62. TACT, s.47A(1)(b).
63. Home Office, Code of Practice for the Exercise of Stop and Search Powers (London: Home Office, 2012), para. 4.3.
64. TACT, s.47A(4).
65. David Anderson, The Terrorism Acts in 2013 (London: Home Office, 2014), paras 6.9–6.11.
66. See further: Ed Cape, ‘The Counter-Terrorism Provisions of the Protection of Freedoms Act 2012: Preventing Misuse or a Case of Smoke and Mirrors?’, Criminal Law Review (2013): 385; John Ip, ‘The Reform of Counterterrorism Stop and Search after Gillan v United Kingdom’, Human Rights Law Review 13 (2013): 729.
67. Although note that the lower UK courts must follow the ratio decidendi of the House of Lords in Gillan rather than that of the ECtHR if the case is indistinguishable (Kay v. Lambeth London Borough Council [2006] 2 AC 465). Two subsequent cases in which this issue has been raised, one concerning non-counter-terrorist suspicionless stop and search (R (on the application of Roberts) v. Commissioner of Police of the Metropolis [2014] EWCA Civ 69) and the other concerning stop, search and question under the Terrorism Act 2000, schedule 7, have both distinguished Gillan (Beghal v. DPP [2013] EWHC 2573 (Admin)).
68. Colon v. Netherlands (2012) 55 EHRR SE5 App. No. 49458/06.
69. Municipalities Act, s.155.
70. A 24-month designation was issued in June 2005 but reduced to 12 months that October (Colon [15]–[16]).
71. In fact section 44 was amended with relative ease, the government passing an urgent Remedial Order under the Human Rights Act 1998, s.10 (Terrorism Act 2000 (Remedial) Order 2011 SI 2011/631).
72. Netherlands Criminal Code, Art.184.
73. Colon [68].
74. Joanne van der Leun and Maartje van der Woude, ‘Ethnic Profiling in the Netherlands? A Reflection on Expanding Preventive Powers, Ethnic Profiling and a Changing Social and Political Context’, Policing & Society 21 (2011): 444, 449. See also COT Institute for Safety and Crisis Management, Evaluatie Preventief Fouilleren in Amsterdam: opbrengsten, wapenincidenten en hot spots (The Hague: COT, 2007); COT Institute for Safety and Crisis Management, Evaluatie Preventief Fouilleren in Amsterdam: de stand van zaken (The Hague: COT, 2006).
75. Home Office, Statistics on Race and the Criminal Justice System; Ministry of Justice, Statistics on Race and the Criminal Justice System.
76. See van der Leun and van der Woude, ‘Ethnic Profiling in the Netherlands?’, 450–1.
77. R (Roberts).
78. Austin (ECtHR) [20] cf Austin v. Commissioner of Police of the Metropolis [2009] UKHL 5 [3].
79. Austin (HL) [6].
80. See further Austin v. Commissioner of Police of the Metropolis [2005] EWHC 480; Genevieve Lennon, ‘Police Powers: Article 5 ECHR and Crowd Control’, Web Journal of Current of Current Legal Issues 3 (2009); Genevieve Lennon, ‘The Purpose of the Right to Liberty under the ECHR, Article 5’, Web Journal of Current of Current Legal Issues 3 (2012).
81. Austin (ECtHR) [59].
82. Ibid.
83. Ibid.
84. Austin (HL) [6].
85. David Mead, ‘Kettling Comes to the Boil Before the Strasbourg Court: It is a Deprivation of Liberty to Contain Protesters En Masse?’, Cambridge Law Journal 71 (2012): 472, 473.
86. Austin (ECtHR) [65].
87. Guzzardi v. Italy, fn.16. See also Engel v. Netherlands App. No. 5100/71, Ser A 22, (1979–80) 1 EHRR 706.
88. Austin (ECtHR) [56]; [61].
89. Ibid., [62], [66]–[67].
90. Austin (ECtHR) [63] cf. dissenting opinion [11] and R (on the application of Laporte) v. Chief Constable of Gloucestershire [2006] UKHL 55.
91. Austin (ECtHR) Dissenting judgment [10].
92. Most recently the Conservative Party have pledged to withdraw from the ECHR if they are not permitted to veto the judgments of the ECtHR, see: Conservative Party, Protecting Human Rights in the UK (London: Conservative Party, 2014).
93. Clive Walker, ‘“Know Thine Enemy as Thyself”: Discerning Friend from Foe under Anti-terrorism Laws’, Melbourne University Law Review 32 (2008): 275, 277.
94. See further Andrew Ashworth and Lucia Zedner, Preventive Justice (Oxford: Oxford University Press, 2014); and Andrew Ashworth, Lucia Zedner, and Patrick Tomlin, eds, Prevention and the Limits of the Criminal Law (Oxford: Oxford University Press, 2013).
95. Genevieve Lennon, ‘Precautionary Tales: Suspicionless Counter-terrorist Stop and Search’, Criminology and Criminal Justice 15 (2015): 44.
96. Lucia Zedner, ‘Fixing the Future? The Pre-emptive Turn in Criminal Justice’, in Regulating Deviance: The Redirection of Criminalisation and the Futures of Criminal Law, ed. Bernadette McSherry, Alan Norrie, and Simon Bronnit (Oxford: Hart, 2009), 49.
97. See further Genevieve Lennon, ‘Security Inspections: Suspicionless Counter-terrorist Stop and Search in the USA and UK’, in Routledge Handbook of Law and Terrorism, ed. Genevieve Lennon and Clive Walker (London: Routledge, 2015), 334–348.
98. British Oxygen Co Ltd v. Board of Trade [1971] AC 610.
99. Gillan (HL) (n. 67); Gillan (ECtHR) (n. 31).
100. See Terrorism Act 2006, s.36.
101. Colon [75].
102. Ibid.
103. Terrorism Investigation and Prevention Measures Act 2011.
104. See further Clive Walker, ‘“Protect” Against Terrorism: In Service of the State, the Corporation, or the Citizen?’, in The Long Decade: How 9/11 Changed the Law, ed. David Jenkins, Amanda Jacobsen, and Anders Henriksen (New York: Oxford University Press, 2014), 199–200; and Amos Guiora, Genevieve Lennon, and Clive Walker, ‘Homeland Security’, in Routledge Handbook of Law and Terrorism, ed. Genevieve Lennon and Clive Walker (London: Routledge, 2015), 315–333.
105. See, for example: Lord Carlile, Report on the Operation in 2009 of the Terrorism Act 2000 and of Part I of the Terrorism Act 2006; The Metropolitan Police Authority, Review of Police Use of Counter-terrorism Stop and Search Powers in London (London: MPA, 2007); Liberty, The Impact of Anti-Terrorism Powers on the British Muslim Population (London: Liberty, 2004); Home Affairs Committee, Terrorism and Community Relations (2004-05 HC 165-I); Joint Committee on Human Rights, Demonstrating Respect for Rights? (2008-09 HL 47-I/HC 320-I).
106. Anti-social Behaviour, Crime and Policing Act 2014, s.148 and Schedule 9.
107. CC v. Commissioner of Police of the Metropolis [2011] EWHC 3316 (Admin) (where CC, already the subject of a control order, was detained and questioned so as to obtain information untainted by torture allegations which would confirm the propriety of the control order; held that the power had been used for improper purposes).
108. Elosta v. Commissioner of Police of the Metropolis [2013] EWHC 3397 (Admin) (holding that, having requested a solicitor, the detainee should not have been questioned until the solicitor arrived).
109. Beghal fn.66; R (on the application of Miranda) v. Secretary of State for the Home Department [2014] EWHC 255 (Admin).
110. See Malik v. United Kingdom (admissibility) App. No. 32968/11, (2013) 57 EHRR SE13. The case was not subject to judicial review domestically.
111. See further John Ip, ‘Terrorism Laws and Constitutional Accountability’, in Routledge Handbook of Law and Terrorism, ed. Genevieve Lennon and Clive Walker (London: Routledge), 99–115.; Fiona de Londras and Fergal Davis, ‘Controlling the Executive in Times of Terrorism: Competing Perspectives on Effective Oversight Mechanisms’, Oxford Journal of Legal Studies 30 (2010): 19.