Guest Post: Asking the wrong questions?

[Guest post by @Super__Cyan]

Wrong Question

Has the Stop and Search Consultation made a glaring oversight regarding a particular question asked? Does it overlook the crucial question, that being whether the power itself to stop and search without reasonable grounds is sufficient to satisfy the United Kingdom’s obligations under the European Convention on Human Rights?

The key question is Q6, in relation to s.60 Criminal Justice and Public Order Act 1994 (particularly s.60(5)) which notes that:

“To what extent do you agree or disagree that the ‘without reasonable grounds’ stop and search powers described in the paragraphs above are used by police in a way which effectively balances public protection with individual freedoms?(page 8)

This issue arises because it asks about the use of that power rather than the power itself. The question implies that such a power may be acceptable on the condition that it effectively balances public protection with individual freedom. Is the very premise of that question missing the point? To answer it in the positive or negative would accept from the outset the use of stop and search without reasonable grounds as being acceptable.

Did the United Kingdom forget about Gillan and Quinton? Gillan and Quinton v United Kingdom concerned the lawfulness of stop and search powers under terrorism legislation. The applicants primarily argued that these laws violated their Article 8 rights. Article 8 of the European Convention of Human Rights (ECHR) stipulates that:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The European Court of Human Rights (ECtHR) concluded that stop and searches in the present case interfered with Article 8 (at para 65). The argument is that stop and search powers under s.60 (although are slightly different in form to s.44) apply a fortiori and therefore would too amount to an interference with Article 8. Once interference has been established it is necessary to move on to Article 8(2), as interference has to first be ‘in accordance with the law’ which requires some basis in domestic law for the power exercised.

This requirement can be further subdivided into what the ECtHR regards as ‘the quality of the law’(para 63) which needs to be compatible with the rule of law this requires the law to be accessible to the person concerned and foreseeable as to its effects (para 50). Publication (para 52-53) of the relevant law goes a long way in satisfying the ‘accessibility’ requirement which is the case with s.60. The foreseeable rule requires the law to be formulated with sufficient precision to enable any individual – if need be with appropriate advice – to regulate their conduct (para 56). It is difficult to envisage how someone can regulate their conduct if a search can occur irrespective of conduct and on grounds that do not need to exist or even be aired.

In Gillan the ECtHR stressed the importance of laws being in accordance with the law to protect against arbitrary interferences by public authorities (para 77). When rightly finding a violation of Article 8 the ECtHR noted that:

Not only is it unnecessary for him to demonstrate the existence of any reasonable suspicion; he is not required even subjectively to suspect anything about the person stopped and searched.(para 83)

The ECtHR was also struck by the statistical evidence showing the abuse and misuse of the s.44 powers and accepted there was a clear risk of arbitrariness in the grant of such a broad discretion to the police officers (para 84-85). Possibly the most essential sentence of the judgment is as follows:

[I]n the absence of any obligation on the part of the officer to show a reasonable suspicion, it is likely to be difficult if not impossible to prove that the power was improperly exercised. (para 86)

The ECtHR concluded that the relevant provisions were not in accordance with the law, which ultimately meant the stop and search powers failed at the first legal hurdle under Article 8(2). Academics have tended to agree with the ECtHR: Gray, providing a comparative perspective with Australia has argued that the police should be required to show ‘reasonable suspicion’ as a basis for conducting a search, rather than arbitrarily conducting searches on anyone they choose. This would, to a far greater degree effectively balance public protection with individual freedoms. J. Miller, N. Bland and P. Quinton recommended that s.60 needs to be considered carefully given their likely impact on community confidence and inefficiency at producing arrests. They also demonstrated that these searches are actually far less successful at producing arrests.

They also pointed out that officers were ‘more ready to search people under this power where evidence was not strong’: this clearly demonstrates the risk of arbitrariness the ECtHR were all too concerned about (for instance, searching more white people just to even up the number of searches on black and Asians. More recently Her Majesty’s Inspectorate of Constabulary raised concern regarding s.60 as they uttered ‘establishing a belief that is ‘reasonable‘is therefore of utmost importance.

What’s the conclusion? Well, perhaps question six should be redrafted to an extent which would give respondents the opportunity from the outset to consider whether the law itself is efficient because as pointed out there are serious concerns regarding stop and search without reasonable grounds in terms of legality and efficiency. Forcing them to accept question six in its current form is not a healthy way to debate such a serious issue. Furthermore, it would be better this way to urge Parliament to alter this provision rather than testing their luck in the courts. So it is suggested question six could be more appropriate and useful if it was redrafted to:

“To what extent do you agree or disagree that the ‘without reasonable grounds’ stop and search powers described in the paragraphs above effectively balances public protection with individual freedoms?(Please give reasons)”

And as Dr Lanning would say:

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