R (on the application of Gillan and another) v Commissioner of Police for the Metropolis and another

The appeals challenged the lawfulness of the stop and search regime in sections 44-47 of the Terrorism Act 2000, both as applied in the appellants' individual cases and as a statutory scheme under the European Convention on Human Rights. The House held that the word "expedient" in section 44(3) is not to be read as meaning "necessary" and that Parliament plainly intended a stop and search power usable without reasonable suspicion but subject to the statutory safeguards in the Act and Code A. The authorisation and its confirmation for the Metropolitan Police District in August 2003 were not shown to be unlawful on the evidence before the court. The House took the view that, ordinarily, a stop and search under sections 44-45 involves a temporary restriction on movement rather than a deprivation of liberty for the purposes of article 5; in any event, the scheme met the Convention requirements of being "in accordance with the law" and, when properly authorised and exercised for the statutory purpose, could be justified under article 8(2) and, if engaged, articles 10 and 11. The court recognised risks of discriminatory or arbitrary use and emphasised the importance of the statutory safeguards, Code A, training, supervision and the availability of legal remedies.

Background and parties:

• The first appellant (Gillan) and the second appellant (Quinton) were stopped and searched near an arms fair at the ExCel Centre, Docklands, on 9 September 2003 under an authorisation said to be given under section 44 of the Terrorism Act 2000. Both alleged unlawful use of the stop and search powers.
• The respondents were the Commissioner of Police for the Metropolis and the Secretary of State for the Home Department.

Procedural history: The appellants' judicial review claims were dismissed by the Divisional Court ([2003] EWHC 2545 (Admin)). The Court of Appeal made no order on claims against the Commissioner and dismissed claims against the Secretary of State ([2004] EWCA Civ 1067, [2005] QB 388). The appeals proceeded to the House of Lords.

Nature of the claims and relief sought:

• The appellants sought declarations that the authorisation, confirmation and exercise of stop and search powers under ss.44–47 Terrorism Act 2000 were unlawful; and, in substance, challenged compatibility with Articles 5, 8, 10 and 11 of the European Convention on Human Rights and the principle of legal certainty.

Issues framed:

1. How should "expedient" in section 44(3) be construed; does it import a requirement of necessity?
2. Were the authorisation and Secretary of State's confirmation for the Metropolitan Police District in August 2003 ultra vires or otherwise unlawful?
3. Do stops and searches under ss.44–45 involve a "deprivation of liberty" for article 5 purposes, and if so are they "in accordance with the law" and otherwise justified under the Convention?
4. Are the statutory scheme and its practical operation sufficiently precise and with adequate safeguards to avoid arbitrariness and unlawful discrimination?

Reasoning:

• Construction: The court rejected an interpretation importing "necessary" into "expedient". Parliament used "expedient" deliberately and provided detailed controls (senior authorising ranks, geographical and temporal limits, Secretary of State confirmation within 48 hours, limited purpose in s.45(1)(a), reporting and review mechanisms) which showed awareness and regulation of the power.
• Authorisation/confirmation: The House concluded there was no basis on the evidence to impugn the August 2003 authorisation or its confirmation. Secret intelligence material considered by the decision-makers (not explored in closed evidence by the appellants) supported the respondents' position and the courts should respect relative institutional competence in assessing such material.
• Convention issues: Ordinarily a stop and search under ss.44–45 is a temporary restriction rather than a deprivation of liberty under article 5. Even if a deprivation could arise in special circumstances, the scheme would, if lawfully applied, fall within an article 5(1)(b)-type exception. On article 8 the court held that an ordinary superficial search may not reach the requisite seriousness but, if article 8 is engaged, the interference can be "in accordance with the law" and proportionate given the statutory purpose and Code A. Articles 10 and 11 were unlikely to be infringed by a proper exercise but, if they were, justifications in the Convention could apply.
• Legal certainty and discrimination: The regime (statute plus Code A and available judicial review and civil remedies) was sufficiently accessible and foreseeable for Convention purposes. The court acknowledged risks of discriminatory practice, emphasised paragraph 2.25 of Code A and the need for proper training, supervision and top-level control, and observed that selective use targeted at a perceived terrorist risk (even if affecting a particular ethnic group more often) is lawful provided individuals are treated as individuals and powers are used for the statutory purpose.

Disposition: Both appeals were dismissed.

Appeals dismissed. The House concluded that (1) "expedient" in section 44(3) does not import a requirement of necessity; Parliament provided detailed statutory safeguards that make the power compatible with the rule of law; (2) on the evidence before the court the August 2003 authorisation and its confirmation were lawful; (3) ordinarily a stop and search under ss.44–45 involves only a temporary restriction of movement not amounting to deprivation of liberty for article 5, and in any event the statutory scheme met the Convention requirement of being "in accordance with the law" and could be justified under article 8(2) and, if engaged, articles 10 and 11; and (4) care must be taken to avoid arbitrary or discriminatory use and safeguards including Code A, supervision and legal remedies are important.

Divisional Court: R (Gillan) v Commissioner of Police for the Metropolis [2003] EWHC 2545 (Admin) (claims dismissed). Court of Appeal: [2004] EWCA Civ 1067; reported [2005] QB 388 (claims against Secretary of State dismissed; no order on claims against Commissioner). Appeal to House of Lords: [2006] UKHL 12 (this judgment).