R (Roberts) v Comr of Police of the Metropolis

The Supreme Court considered whether the suspicionless stop and search power in section 60 of the Criminal Justice and Public Order Act 1994 is "in accordance with the law" for the purposes of article 8 of the European Convention on Human Rights. The court accepted that the exercise of a section 60 authorisation interferes with article 8 rights but concluded that the statutory scheme, read with PACE, the Codes of Practice, police Standard Operating Procedures and other accountability mechanisms (and in light of the duty under section 6 of the Human Rights Act 1998), provides sufficient safeguards against arbitrary or discriminatory use.

The court therefore refused to make a declaration of incompatibility under section 4 of the Human Rights Act. It also rejected any separate conclusion that the particular search of Mrs Roberts on 9 September 2010 was not "in accordance with the law". The court noted subsidiary findings made below that there was no article 5 deprivation of liberty and no successful article 14 discrimination complaint, and that the interference was conceded to be proportionate to the legitimate aim.

Background and facts:

• The appellant, Mrs Roberts, was stopped and searched under a section 60 authorisation in Haringey on 9 September 2010 after a period of gang-related violence and intelligence suggesting a risk of further serious violence. She was searched on a bus by a uniformed constable; the search led to an arrest for obstructing a search and a later caution which was quashed.
• Mrs Roberts is of African-Caribbean heritage and had no relevant convictions. The authorisation was given by a superintendent who completed Form 5096 recording grounds based on local intelligence.

Procedural posture:

• Mrs Roberts sought judicial review alleging breaches of articles 5, 8 and 14. The Divisional Court ([2012] EWHC 1977 (Admin)) and the Court of Appeal ([2014] EWCA Civ 69; [2014] 1 WLR 3299) held there was no article 5 deprivation and rejected the article 14 complaint; both held there was an article 8 interference but that the power was "in accordance with the law". The matter came to the Supreme Court on appeal limited to the article 8 legality point and the request for a declaration of incompatibility under section 4 of the Human Rights Act 1998.

Issues before the court:

1. Whether the section 60 stop-and-search power, which permits searches without reasonable suspicion once a valid authorisation exists, is "in accordance with the law" for article 8 purposes, given risks of arbitrariness and discriminatory use;
2. Whether the particular search of Mrs Roberts was unlawful in that it was not in accordance with the law;
3. Whether a declaration of incompatibility under section 4 of the Human Rights Act should be made.

Court's reasoning:

• The court reviewed relevant authorities (including Gillan, Gillan v UK (ECHR), R (T), Beghal and Colon v Netherlands) and emphasised that the Convention concept of legality requires sufficient safeguards against arbitrary or discriminatory exercise of power.
• The court analysed the safeguards in and around section 60: requirement that authorisation be given by an inspector or above, that the senior officer reasonably believes one of the statutory grounds in section 60(1) exists and that the belief be based on evidence, statutory limits on duration and geographic scope, statutory recording obligations, obligations in PACE (sections 2 and 3) and the Code of Practice (Code A), Metropolitan Police Standard Operating Procedures, supervisory review and reporting, community engagement and post-operation evaluation, and the duty under section 6 of the Human Rights Act and anti-discrimination law.
• The court held that these combined statutory and procedural safeguards made it possible to judge whether the interference was "necessary in a democratic society" and to protect against arbitrary or discriminatory use. That meant section 60, as a legal framework, met the Convention requirement of legality in the circumstances described and did not warrant a declaration of incompatibility. The court also held it was not appropriate to declare the particular search unlawful on the article 8 legality ground.

Relief sought:

• (i) A declaration of incompatibility under section 4 of the Human Rights Act 1998; and
• (ii) ancillary relief arising from alleged breaches of articles 5, 8 and 14.

Appeal dismissed. The Supreme Court held that section 60 of the Criminal Justice and Public Order Act 1994, when read with the safeguards in PACE, the Codes of Practice, Metropolitan Police Standard Operating Procedures and other accountability mechanisms and in the light of the duty under section 6 of the Human Rights Act 1998, is "in accordance with the law" for the purposes of article 8. For that reason no declaration of incompatibility under section 4 was appropriate and the particular search was not found to be unlawful on that ground. The court also noted that article 5 and article 14 complaints were unsuccessful below and were not pursued on appeal.

On appeal from the Court of Appeal [2014] EWCA Civ 69; before that proceedings at Divisional Court [2012] EWHC 1977 (Admin).