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

Sections 44 and 45 of the Terrorism Act 2000 permit random stop and search without reasonable suspicion, but only for preventing terrorism and subject to statutory safeguards. The word ‘expedient’ bears its ordinary meaning of advantageous. No specific terrorist threat is required before an area-wide or rolling authorisation may be made. Courts must construe the power restrictively and retain responsibility for legality, necessity and proportionality, while giving weight to the authorities’ security assessment. The statute itself does not inherently conflict with Convention rights. Improper operational use, including policing or deterring lawful protest, would be unlawful. The police must show that each interference was lawful and must provide adequate instructions for exceptional powers.

The appellants challenged their stops and searches near a defence exhibition under authorisations made pursuant to sections 44 and 45 of the Terrorism Act 2000. The Divisional Court, in a decision dated 31 October 2003, dismissed the judicial review claims.

On appeal, the appellants challenged the interpretation and use of the statutory powers, including the legality of area-wide and rolling authorisations, the adequacy of police instructions, proportionality, and compatibility with Articles 5, 8, 9, 10, 11 and 15 of the European Convention on Human Rights. The central issues were whether the powers could be used without reasonable suspicion and whether their authorisation, command and operational use were lawful.

The supplied judgment records the Court’s conclusions but ends before a final operative order on relief.

1. Statutory construction. Sections 44 and 45 of the Terrorism Act 2000 had to be construed restrictively because they authorised significant interference with individual freedom, backed by criminal sanctions. That did not justify departing from the ordinary statutory language. ‘Expedient’ in section 44(3) meant advantageous. Parliament had deliberately permitted random stop and search without reasonable suspicion, subject to a defined terrorism-prevention purpose, senior police authorisation, confirmation by the Secretary of State and limited duration.
2. Judicial supervision. Courts should generally respect the authorities’ assessment of terrorist risk and operational need. They nevertheless retain responsibility for ensuring that the statutory power is used within its limits, for its proper purpose, and in a necessary and proportionate manner. The ultimate question of proportionality remains for the court, applying the approach indicated by Lord Steyn in R (Daly) v Home Secretary [2001] 2 AC 532.
3. Authorisation and command. In the circumstances, the area-wide rolling authorisations were justified and were not shown to have been made for ordinary day-to-day policing. The commander was entitled to approve use of section 44 powers in connection with the arms fair. However, officers exercising exceptional powers should receive carefully designed instructions explaining their limits and proper deployment. The evidence of briefing was lamentable.
4. Operational use. The police bore the onus of showing that the interference with each appellant was lawful. On the evidence, that onus had not been discharged. Using the powers to police or deter a protest would be unlawful, although the judicial review proceedings did not permit the disputed factual matters to be finally resolved.
5. Convention rights. The statute itself did not conflict with the Convention; any infringement depended on how the powers were exercised. Article 8 applied to stop and search. Properly used, the powers did not threaten Articles 10 and 11 because they were limited to searching for terrorist articles and imposed only limited detention. A short stop and search would normally fall outside Article 5, although the Court also expressed the alternative view that any detention would be justified under Article 5(1)(b). Non-publication of authorisations did not prevent the procedure being prescribed by law. Article 15 derogation was unnecessary where the powers could be exercised compatibly with the Convention.

The Court indicated a provisional view that the judgment should speak for itself and that no order should be made on the appeal as to the merits or costs.

• Court of Appeal (Civil Division) Determined the statutory, Convention and operational issues on appeal. The supplied text records no final order on relief.
• Divisional Court On 31 October 2003 dismissed the appellants’ judicial review claims challenging their stop and search under section 44 authorisations.