Howarth v Commissioner of Police of the Metropolis

A constable exercising a statutory search power must personally possess sufficient information to have reasonable grounds for suspicion, although that information may come from wider police intelligence. A suspicion directed to a defined group may justify searching individual members where the circumstances make that a reasonable response; individual suspicion of every member is not invariably required. The decision to search remains subject to rationality and proportionality limits. A moderate preventive search based on reliable intelligence of potential criminal damage may be lawful, including where those searched are travelling to a peaceful demonstration. Such a search may be compatible with Articles 8, 10 and 11 of the European Convention where it is authorised by law, directed to preventing crime, and proportionate.

Mr Howarth sought judicial review of a personal search carried out by a Metropolitan Police officer on a train carrying demonstrators to a planned protest. Police intelligence indicated that members of the group might possess chalk, molasses or similar articles intended for criminal damage. The searching officer understood that the intelligence concerned the group, rather than any identified individual, and searched Mr Howarth after identifying him as a protestor.

The claim alleged breach of section 1 of the Police and Criminal Evidence Act 1984, Articles 8, 10 and 11 of the European Convention, section 6 of the Human Rights Act 1998, and the common law relating to assault. The central issues were whether the officer had reasonable grounds for suspicion, whether group searching was lawful, and whether the search was a proportionate interference with Convention rights.

1. Disposition. The Divisional Court dismissed the claim. The search was lawful under section 1 of the Police and Criminal Evidence Act 1984, and did not breach Articles 8, 10 or 11 of the Convention.
2. Personal suspicion. The relevant question was the information and understanding of the officer who conducted the search. An officer may rely on information communicated through the police chain of command, but cannot lawfully act merely on superior orders. The officer must have equipped himself with sufficient information to possess reasonable grounds before exercising the power, applying the principle stated in O’Hara v Chief Constable of Northern Ireland [1997] AC 286.
3. Applicable test. The lawfulness of the search involved three questions: whether the officer actually suspected possession of prohibited articles; whether there was objectively reasonable cause for that suspicion; and whether the discretion to search was exercised within the bounds of reasonableness, applying the approach in Castorina v Chief Constable of Surrey. The threshold for reasonable suspicion is low, as explained in Raissi v The Commissioner [2008] EWCA Civ 1237.
4. Group searches. Suspicion of a group may, in appropriate circumstances, justify searching its members. The decisive question is whether the individual searches were a reasonable response to the intelligence. Relevant considerations included the anticipated scale of damage, the size and identification of the group, and the nature and intrusiveness of the searches. The searches here were confined to identifiable protestors on the train and were moderate. They therefore fell within the reasonable responses open to the officer.
5. Convention rights. The court left open whether the search engaged Article 8, noting the differing approaches in Gillan v The Commissioner [2006] 2 AC 307 and the European Court’s judgment in that litigation. Assuming Article 8 was engaged, the interference was in accordance with law and pursued the prevention of crime. The preventive search was necessary and proportionate. The importance of peaceful expression and assembly was accepted, but those rights did not prevent sensible, limited measures designed to prevent anticipated criminal damage. The search was materially different from the pre-emptive police action condemned in R (Laporte) v Chief Constable of Gloucestershire [2007] 2 AC 105.

First-instance judicial review proceedings. No earlier decision is stated in the judgment.