Gillan & Anor, R (on the application of) v Commissioner of the Police for the Metropolis & Anor

An authorisation under section 44 of the Terrorism Act 2000 may cover an entire police district and may respond to a substantial general threat of terrorism. The authorising officer has a broad discretion, subject to the statutory confirmation safeguards. Judicial scrutiny is necessarily limited where the decision depends on assessments of national security and operational risk. The resulting stop-and-search powers must nevertheless be used for counter-terrorism purposes and not capriciously, arbitrarily or against a particular group. Peaceful protest does not create immunity from a lawful search. On the evidence, the authorisations and their use were lawful and proportionate, although improved police guidance and procedures were desirable.

The claimants sought judicial review of their being stopped and searched by Metropolitan Police officers under authorisations made pursuant to sections 44(1) and 44(2) of the Terrorism Act 2000, while they were attending or approaching an arms exhibition. They challenged the geographical scope and duration of the authorisations, the alleged misuse of the powers against peaceful protesters, the adequacy of police guidance, and interference with rights under Articles 5, 8, 9, 10 and 11 of the Convention. The court also considered whether the authorisations and searches were disproportionate.

1. Authorisations. The claimants’ challenge to the authorisations failed. Parliament had deliberately created two different regimes: the terrorism regime could extend to any place within a police area, whereas the serious-violence regime was confined to a specified locality. Section 44(4) confirmed that an authorisation could cover the whole Metropolitan Police district. The word expedient conferred a broad discretion on the senior police officer, subject to confirmation by the Secretary of State where required.
2. Judicial review. Assessment of the risk to public safety and national security, and the formulation of protective measures, were primarily matters for the Government and Parliament. The court’s scrutiny was therefore limited. The authorisation was within the statutory powers and no legal ground for setting it aside was established.
3. Use of the powers. The powers were extraordinary and could not lawfully be used capriciously, arbitrarily, or for an ulterior purpose. Police guidance had to ensure that searches were connected with terrorism and did not target a particular group disproportionately. The evidence showed inadequate preparation and briefing, but was just sufficient to establish that the arms exhibition was regarded as a potential symbolic terrorist target and that the searches were not shown to have been habitually used for an improper purpose. The public-law challenge to the searches therefore failed.
4. Convention rights. Having regard to the assessed terrorist threat, the authorisations and their exercise were prescribed by law and proportionate to the gravity of the risk. Any interference with Articles 8(1), 9(1), 10(1) and 11(1) was justified. The claim under Article 5 was not established.
5. Observation. The court suggested that a person who did not want a written statement under section 45(5) should be able to waive it by a short written statement, avoiding unnecessary bureaucratic delay. The claims were dismissed, leaving any private-law remedies unaffected.