Roberts, R (on the application of) v The Commissioner of the Metropolitan Police

A stop and search under section 60 of the Criminal Justice and Public Order Act 1994 does not necessarily deprive a person of liberty under Article 5. The assessment depends on the type, duration, effects, manner and context of the measure.

Such a search engages Article 8, but the statutory power is sufficiently circumscribed to be in accordance with the law where authorisation is based on reasonable belief, limited by locality and time, directed to weapons, governed by Code A, proportionate and subject to judicial scrutiny. The power may lawfully permit random searches. A general challenge based on alleged racial disproportionality cannot be resolved through disputed, undigested statistics.

The claimant was stopped and searched under an authorisation issued pursuant to section 60 of the Criminal Justice and Public Order Act 1994. The authorisation covered part of Haringey during a period of concern about gang-related serious violence and weapons. The search followed the claimant’s false account of her identity and her apparent attempts to conceal something in her bag. She was briefly restrained and later arrested.

She sought judicial review, a declaration that section 60 was incompatible with Articles 5 and 8 of the Convention, and a declaration that the search was unlawful. Her materials also raised alleged racial discrimination contrary to Article 14 read with Article 8. The central questions were whether the search deprived her of liberty, whether section 60 contained adequate safeguards against arbitrary interference, and whether the disputed statistical material established discriminatory use.

1. Article 5. The claimant was not deprived of liberty. The relevant inquiry is fact-sensitive and considers the type, duration, effects, manner and context of the measure. The anticipated search would have been brief; the claimant was restrained only after resisting and attempting to leave. The search therefore amounted to a restriction on movement, not detention within Article 5.
2. Article 8. The search engaged private life because it involved coercion, embarrassment and examination of the claimant’s handbag. The question was whether the statutory power was in accordance with the law, namely whether it protected individuals against arbitrary executive interference.
3. Section 60 safeguards. The power was sufficiently circumscribed. Authorisation required reasonable belief in one of the statutory circumstances, was limited to a specified locality and period, and could be extended only on the statutory basis. Searches were confined to dangerous instruments or offensive weapons. Code A required the minimum necessary period and geographical area and warned against racial discrimination. The authorisation was also subject to proportionality under section 6(1) of the Human Rights Act 1998 and to scrutiny by the courts.
4. Random searches. The absence of individual reasonable suspicion did not make the power arbitrary. Randomness was central to the preventive purpose of section 60 and helped prevent those carrying weapons from avoiding detection. The statutory scheme did not grant an unfettered discretion.
5. Discrimination evidence. The court did not determine whether section 60 was used discriminatorily in general. The statistics were disputed and the late expert material was not properly prepared. Such an issue required agreed evidence or properly tested expert reports. The application was rejected.

First-instance judicial review proceedings in the Administrative Court. The application was rejected by Moses LJ, with whom Eady J agreed.