While ECHR’s judgment as described below seemed pretty final, the Labour government still attempted a final appeal – asking for the case to be heard in the ‘Grand Chamber’ (i.e. throwing another few ECHR judges in to the pot). They didn’t have any new arguments or grounds for appeal though and so today I heard that the ECHR has refused the government request. Labour were probably trying to kick it into the long grass until after the election, knowing that it would soon be somebody else’s problem. The judgment should hopefully ensure that the shiny new coalition government’s review of civil liberties should have section 44 high on the agenda, along with the raft of other shameful laws that Labour introduced in its muddle-headed, knee-jerk reactions to the terrorist threat. They will be getting continuing pressure from the Police and other security services to keep these easy to use laws, of course, so its still important, at any opportunity, to support the call for the return of our fundamental civil liberties. Liberty have a few ideas on how to do that; making a donation to the Civil Liberties Trust would also help.
The European Court of Human Rights today issued its judgement on the case that Penny Quinton and I have been taking against the government over section 44 of the Terrorism Act 2000. They have agreed that this piece of legislation offends against Article 8 of the European Convention on Human Rights, and does not contain sufficient safeguards for members of the public. [1]
The case stems from events in September 2003, when Penny and I were independently subject to stop and search under the Terrorism Act. We’d both been attending protests at the DSEi arms fair, myself partly for research purposes and Penny as an independent journalist. The campaigning legal firm Liberty agreed to take our cases and we spent several years going though the judicial review process, before finally taking it to the European Court last year.[2]
To finally win is fantastic news and sends a very strong signal to government about the limits to what is acceptable in combating terrorism. Section 44 is regularly abused by police who find it convenient for general policing. The problem is the legislation itself, which is screaming out to be abused. The Terrorism Act encourages police to perform stop and search ‘for the purpose of searching for articles of a kind which could be used in connection with terrorism’ (e.g. phones, maps, laptops, notepads, car keys) and ‘may be exercised whether or not the constable had grounds for suspecting the presence of articles of that kind‘ (Section 44(1)). When challenged by those seeking redress for misuse of these powers the constable should properly claim in court that he or she had no suspicion of the person they stopped and searched. Another reply might risk saying something that could be perceived as discriminatory or otherwise unreasonable, so why make your thoughts public? This is indeed how the officers reacted when we challenged their use of the Terrorism Act against protesters – we just don’t know why we stopped them. The Terrorism Act makes it easier to search people than any other police power and officers are encouraged not to disclose (or indeed use) any reasoning. So its hardly a surprise that hundreds of thousands [3] of stops under this legislation have created suspicion and fear of the state, while not one has led to an arrest on terrorism charges.
News reports are now available from the BBC, The Times, The Guardian, and quite a few more!
Notes
[1] The full judgement is available here: Gillan & Quinton vs. The United Kingdom (4158/05).
[2] Elsewhere I’ve written about why the judicial review process is blind to certain kinds of systematic misuse of police powers.
[3] 250,000 stops were made in 2008/9 and 117,278 in 2007/8.
This lecture presented a personal view of the judicial review process to law students at Queen’s University, Belfast. In 2003 I was subject to a stop and search by police, while on my way to a demonstration. The police used powers conferred on them by the Terrorism Act 2000. Ever since I have been involved with a case that has tested that piece of legislation, and the ways in which it has been used by the police. Essentially, our argument is on two levels. First, the legislation itself is not in keeping with the weight and tradition of British law and is in conflict with aspects of the European Convention on Human Rights (referred to as the Convention throughout), so the ultimate solution would be to rewrite it. Second, the way the legislation is being used by the police is not as Parliament intended, so the solution would be limitations on use to the police.
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The lecture explains sections 44-47 of the Terrorism Act and gives an overview of the judicial review process. I then look at three issues brought up by the case. First, the relationship between the judiciary and the state in the context of national security is examined. I argue that we see a complex and shifting relationship that belies any simple view of the ‘separation of powers’. Second, I look at the degree to which the judiciary takes a role in governing use of discretionary powers by the police. I argue that the judicial review process contains a blind spot where the complaint is systematic, but informal misuse of exceptional police powers whether that be against peaceful protesters or against people on the basis of race or religion. Third I run through some aspects of human rights legislation, to the degree that they are relevant to our case.
The full lecture may be downloaded here: The Terrorism Act and the Judicial Review Process.
The accompanying powerpoint slides may be downloaded here: Judicial Review Process Slideshow.