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

The Court of Appeal rejected the challenge to section 60 of the Criminal Justice and Public Order Act 1994. The court held that a stop and search under section 60 engages Article 8 ECHR (marginally) but, on the facts and given statutory and administrative safeguards, the power is "in accordance with the law" and is not arbitrary. Article 5 was held not to be engaged because an ordinary section 60 stop and search does not amount to a deprivation of liberty. The asserted breach of Article 14 (racial discrimination) was not made out on the material before the court and contested statistics were not resolved in the appeal.

Background and parties: The appellant, Ann Juliette Roberts, challenged the lawfulness of stop and search powers exercised under section 60 of the Criminal Justice and Public Order Act 1994. The respondents included the Commissioner of Police of the Metropolis and others. The Secretary of State and Liberty intervened. The appeal was from the Divisional Court (Moses LJ and Eady J, [2012] EWHC 1977 (Admin)).

Facts: On 9 September 2010 the appellant was stopped on a Tottenham bus after fare evasion and provision of false identity details. Police Constable Reid, with an authorisation in force under section 60, searched her after she resisted; the section 60 authorisation covered a limited locality and limited hours and had been granted because of recent gang-related violence and intelligence about weapons.

Nature of the application: The appellant sought declarations that section 60 was incompatible with Articles 5 and/or 8 ECHR and that its use breached Article 14 when read with those rights, relying in part on official statistics alleged to show disproportionate use against black people.

Issues framed: (i) Whether a section 60 stop and search involves a deprivation of liberty for Article 5; (ii) whether a section 60 stop and search interferes with Article 8 and, if so, whether the statutory scheme is "in accordance with the law" and proportionate; (iii) whether use of section 60 engages Article 14 read with Article 8 in light of statistical material.

Court's reasoning: On Article 5 the court followed the approach in Gillan (House of Lords) and held that an ordinary stop and search, brief and on the spot, does not amount to deprivation of liberty absent special circumstances. On Article 8 the court accepted that a random public search can cause humiliation and therefore engages Article 8, but concluded that section 60 is not arbitrary: authorisations are temporally (24 hours, extendable once) and territorially limited, require an officer of inspector rank or above to reasonably believe specific matters about serious violence and weapons, and the exercise of the power is subject to Code A PACE and other safeguards. The court distinguished the Terrorism Act 2000 regime considered in Gillan (noting differences of duration, geography and authorising criteria) and found Colon v Netherlands supportive. The proportionality/necessity assessment under Article 8(2) was satisfied and a margin of appreciation applied. On Article 14 the court refused to determine contested statistical claims on the papers, observed that section 60 is not in itself discriminatory and that the appellant’s stop arose from her conduct in an area subject to a lawful authorisation; the Article 14 complaint was not established. The court therefore dismissed the appeal.

Appeal dismissed. The Court of Appeal held that (i) a routine stop and search under section 60 does not amount to a deprivation of liberty for Article 5 purposes; (ii) Article 8 is engaged but the section 60 scheme is "in accordance with the law", not arbitrary, and justified under Article 8(2) given its temporal and territorial limits, the objective reasonable-belief requirement for authorisation and the controls in Code A; and (iii) the Article 14 complaint was not established on the contested statistical material.

Appeal from the Queen's Bench Division, Divisional Court (Moses LJ and Eady J) [2012] EWHC 1977 (Admin) to the Court of Appeal, Civil Division, which delivered judgment [2014] EWCA Civ 69.