R (on the application of Gillan (FC) and another (FC)) (Appellants) v. Commissioner of Police for the Metropolis and another (Respondents)

Under sections 44–46 of the Terrorism Act 2000, “expedient” means likely to have significant practical value in preventing terrorism. It does not mean necessary. An area-wide or successively renewed authorisation is lawful where each decision is reasonable, informed, directed to preventing terrorism and compliant with the statutory safeguards.

An ordinary, brief stop and search conducted at the place of the stop does not, without special circumstances, deprive a person of liberty under article 5 of the European Convention on Human Rights. A properly authorised search, confined to terrorist-related articles and conducted under Code A, satisfies Convention legality. If it engages private life or restricts expression or assembly, its proper exercise is proportionate to the prevention of terrorism.

The appellants were a peaceful protester and a journalist attending protests near an arms fair in Docklands. Uniformed police officers stopped and searched them under an authorisation covering the Metropolitan Police District. No incriminating articles were found.

The Divisional Court dismissed their applications for judicial review: [2003] EWHC 2545 (Admin). The Court of Appeal made no order on their claims against the Commissioner and dismissed their claims against the Secretary of State: [2004] EWCA Civ 1067; [2005] QB 388.

The House considered the construction of “expedient” in section 44(3) of the Terrorism Act 2000, the geographical extent and repeated renewal of the authorisation, and compatibility with articles 5, 8, 10 and 11 of the European Convention on Human Rights. Whether the officers had used the powers for an improper purpose depended on disputed evidence reserved for existing county court proceedings.

1. The appeals were dismissed unanimously. Lord Bingham delivered the leading speech. Lord Hope, Lord Scott, Lord Walker and Lord Brown agreed with his reasons and the disposition.

2. Per Lord Bingham, “expedient” in section 44(3) of the Terrorism Act 2000 did not mean necessary. An authorisation could be given only where the senior officer reasonably considered that the powers were likely to have significant practical value in preventing acts of terrorism. The principle of legality did not justify rewriting the provision because Parliament had used detailed, specific and unambiguous language. Lord Scott added that Parliament’s use of “expedient” in section 48(2) supported the same construction.

3. Per Lord Bingham, the authorisation and confirmation were lawful. The whole Metropolitan Police District could properly be covered because the uncontradicted evidence showed that potential targets and intelligence-gathering needs extended throughout it. Successive authorisations were not inherently unlawful. Each remained subject to the statutory limits, fresh consideration and confirmation. The House had no evidential basis for rejecting the informed assessments of the Assistant Commissioner and Secretary of State, particularly when the appellants had declined a proposed procedure for examining the underlying intelligence.

4. Per Lord Bingham, an ordinary stop and search under sections 44–45 did not, without special circumstances, amount to a deprivation of liberty under article 5. The procedure was ordinarily brief and involved no arrest, handcuffing, confinement or removal elsewhere. Alternatively, any deprivation arising from a lawful search would secure compliance with the obligation not to obstruct a constable and would fall within article 5(1)(b).

5. Per Lord Bingham, an ordinary superficial search might not reach the seriousness needed to engage article 8. Some searches could do so, particularly where private papers were examined. A properly authorised search conducted under Code A solely for terrorist-related articles would nevertheless be proportionate. Proper exercise of the power would likewise be unlikely to violate articles 10 or 11.

6. Per Lord Bingham, the regime satisfied Convention legality. The Act and publicly accessible Code A defined the power, its purpose and its safeguards with adequate precision. Advance publication of particular authorisations was unnecessary and would undermine their efficacy. A constable could act without reasonable grounds for suspicion but remained confined to the statutory purpose and liable to legal action for arbitrary or improper use.

7. Lord Hope and Lord Brown addressed discrimination in significant obiter observations. Ethnic origin alone could not justify selection; the person had to be assessed individually by reference to further threat-related considerations. Lord Brown considered that intuitive, selective use was legitimate and that searching persons presenting no conceivable threat could itself be arbitrary. Lord Scott expressed a different view on the possible effect of statutory authority under domestic discrimination law.

8. The House did not decide whether the individual searches had been conducted for an improper public-order purpose. Those fact-sensitive claims remained available for determination in the county court proceedings.

1. House of Lords: Dismissed both appeals unanimously and left the Court of Appeal’s disposition undisturbed: [2006] UKHL 12.
2. Court of Appeal: Made no order on the claims against the Commissioner and dismissed the claims against the Secretary of State: [2004] EWCA Civ 1067; [2005] QB 388.
3. High Court, Queen’s Bench Divisional Court: Dismissed the applications for judicial review: [2003] EWHC 2545 (Admin); [2003] All ER (D) 526 (Oct).