The European Court of Human Rights ruled Tuesday that ‘stop and search’ powers of police acting under Britain’s Terrorism Act 2000 (Act 2000) violated the right to respect for private and family life. They were “neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse”, and were thus not “in accordance with the law”, the judgment reads.

The Act permits police to stop and search individuals without reasonable suspicion of wrongdoing, and warrants searches based on suspicion that a person could be carrying ‘articles of a kind which could be used in connection with terrorism’. This may involve the request to remove headgear, footwear, outer clothing or gloves, feel around and inside collars, socks and shoes and search hair. The search takes place in public.

Facts and the law
Applicants Kevin Gillan and Pennie Quinton were stopped and searched by London police while on their way to protest at an arms fair in East London. They made a claim for judicial review of the Act but the British High Court rejected their claims, while both the Court of Appeal and House of Lords dismissed their appeal. The case brought before the European Court charged that the ‘stop and search’ powers breached their rights under Articles 5 (right to liberty and security); 8 (right to respect for private and family life), and 10 (freedom of expression).
 

The Court, including Britain’s own judge Nicolas Bratza, ruled entirely on the basis of the right to respect for private and family life under Article 8 of the ECHR. In doing so, it rejected any notion that these searches are comparable to the searches of travellers at airports who may be seen as consenting to the search by choosing to travel.
 

The issue under scrutiny was whether such interference was “in accordance with the law”, given that an officer’s decision to search an individual was based exclusively on a “hunch” or “professional intuition”. This carried the risk of arbitrary discrimination by the police against ethnic minorities.

Discrimination
Amnesty International, welcomed the ruling. The organization has long contended that freedoms breached by the ‘stop and search’ policy “contravene the liberty to freedom of expression and assembly, and freedom from arbitrary detention, guaranteed by the European Convention of Human Rights (ECHR), by which the UK government is bound,” says Kartik Raj, a campaigner with AI’s European Team.
 

Moreover, the “stop and search powers disproportionately affect black and Asian people,” Raj says, referring to “evidence examined by the government’s own independent review of counter terrorism legislation in 2009 [showing] that the powers are being used disproportionately against people from minority ethnic backgrounds”.
 

Tuesday judgment is, however, not yet final but open to further consideration or appeal. British policing and security minister David Hanson said the government would seek to appeal the decision and the powers would remain available to police pending the appeal outcome.
 

"Stop and search under section 44 of the Terrorism Act 2000 is an important tool in a package of measures in the on-going fight against terrorism," he said in a statement. "I am disappointed with the ECHR ruling in this case as we won all other challenges in the UK courts."