Roberts, R (on the application of) v The Commissioner of Police of the Metropolis & Ors

A brief stop and search under section 60 does not ordinarily constitute a deprivation of liberty for Article 5 purposes. Article 8 is engaged marginally by a random public search, but the section 60 scheme is in accordance with the law and is not arbitrary. Its safeguards include strict territorial and temporal limits, objectively constrained authorisation, and controls under Code A. The absence of suspicion by the individual searching officer is not decisive. Article 8(2) justification requires a pressing social need, proportionality, and relevant and sufficient reasons, subject to a margin of appreciation. Article 14 is not freestanding, although the circumstances may fall within Article 8’s ambit. Controversial statistics did not establish discriminatory use in this case.

The appellant was stopped and searched in Tottenham under section 60 of the Criminal Justice and Public Order Act 1994 while an authorisation relating to gang violence and weapons was in force. She challenged the statutory regime and its use against her under Articles 5, 8 and 14 of the European Convention on Human Rights and Fundamental Freedoms.

The Divisional Court rejected the challenge, holding that the search involved no deprivation of liberty, that the power was in accordance with the law, and that the Article 14 issue could not properly be resolved on the disputed statistical material: [2012] EWHC 1977 (Admin). The central issues on appeal were whether section 60 was arbitrary or disproportionate and whether its use disclosed discrimination.

Appeal dismissed unanimously.

1. Article 5. Following the approach in R (Gillan) v Commissioner of Police of the Metropolis, the relevant consideration was the time reasonably required to carry out the search. A person subjected to a brief search was not thereby confined or kept in custody. Any later arrest, detention or criminal charge resulting from the search was irrelevant to the initial Article 5 question.
2. Article 8 and arbitrariness. Article 8 was engaged, albeit marginally, because a random public search could cause humiliation and embarrassment. The section 60 scheme was nevertheless in accordance with the law. Unlike the regime considered in Gillan v United Kingdom, it operated only for a short, specified period and within a defined locality. Authorisation required reasonable belief in specified matters concerning serious violence or weapons. Those objective safeguards made the power susceptible to judicial review and prevented it from being arbitrary.
3. The individual officer did not need reasonable suspicion in relation to the person searched. That feature was not necessarily fatal. The power under section 60(5), controlled by Code A and consequential upon the objectively constrained authorisation, remained sufficiently circumscribed.
4. Article 8(2). Necessity was relevant to justification rather than to whether the power was in accordance with the law. The interference had to answer a pressing social need, be proportionate to the legitimate aim, and be supported by relevant and sufficient reasons, allowing a margin of appreciation to national authorities. Those requirements were satisfied in the statutory and factual context.
5. Article 14. Article 14 was not freestanding. The alleged discrimination had to fall within the ambit of another Convention right. Although Article 8’s ambit was accepted, the disputed statistics were unsuitable for determination without expert assistance. The appellant was searched because she attracted attention as a fare dodger in an authorised locality, not because of her ethnicity. No breach of Article 14 was established.

1. Court of Appeal (Civil Division): dismissed the appeal and upheld the rejection of the Convention challenge.
2. Divisional Court of the Queen’s Bench Division: rejected the challenge to the section 60 regime and its use against the appellant: [2012] EWHC 1977 (Admin).