R v Commissioner of Police of the Metropolis and another

A suspicionless stop-and-search power is compatible with article 8 where the legal framework is accessible and foreseeable and contains sufficient safeguards against arbitrary or discriminatory use. The court must examine the statutory power together with binding codes, published operational policies, practical safeguards and the duty of public authorities to act compatibly with Convention rights.

Section 60 of the Criminal Justice and Public Order Act 1994 satisfies that standard. Authorisations require an evidence-based reasonable belief, are confined by purpose, place and time, and are subject to review and record-keeping. Individual searches must pursue the statutory purpose and comply with identification, explanation and recording requirements. Unlawful operation in an individual case attracts legal remedies but does not make the statutory power itself incompatible.

A police superintendent authorised suspicionless searches under section 60 of the Criminal Justice and Public Order Act 1994 in part of Haringey following intelligence about gang violence and weapons. A uniformed constable stopped and searched the appellant after a fare dispute. The appellant ultimately conceded that the constable complied with section 60 and that the particular interference with her article 8 rights was proportionate.

The Divisional Court, [2012] EWHC 1977 (Admin), and the Court of Appeal, [2014] EWCA Civ 69; [2014] 1 WLR 3299, rejected her claims. The appeal concerned only whether the suspicionless power was itself insufficiently protected against arbitrary or discriminatory use and therefore failed the requirement that interference with private life be “in accordance with the law” under article 8(2).

1. Appeal dismissed unanimously. Lady Hale and Lord Reed, with whom Lord Clarke, Lord Toulson and Lord Hodge agreed, held that section 60 of the Criminal Justice and Public Order Act 1994 was compatible with article 8. No declaration of incompatibility, declaration concerning the guidance, or declaration concerning the particular search was appropriate.

2. The Convention concept of legality requires more than compliance with domestic law. A power must be sufficiently accessible and foreseeable and must contain safeguards against arbitrary or discriminatory use. The assessment extends beyond the statutory text to the operation of the system in practice, including other legislation, statutory codes and published police policies.

3. Section 60 contains important intrinsic limits. A senior officer must reasonably believe, on an evidential basis, that one of the tightly framed statutory grounds exists. The authorisation must serve the statutory purpose, specify a limited locality and operate for no more than 24 hours, subject to one limited renewal. Although an individual constable needs no reasonable suspicion, the constable must be uniformed and may search only for offensive weapons or dangerous instruments.

4. Further safeguards arose under sections 2 and 3 of the Police and Criminal Evidence Act 1984, Code A and the Metropolitan Police Standard Operating Procedures. They required identification, an explanation of the power, object and grounds, a written record, access to a copy, operational briefing and review, and monitoring for discriminatory or disproportionate use. Published policies were legally significant because failure to comply with them could render compulsory action unlawful.

5. The power also had to be read with section 6(1) of the Human Rights Act 1998 and the Equality Act 2010. Police officers could neither act incompatibly with Convention rights nor discriminate on racial grounds. Those requirements, together with judicial remedies and disciplinary accountability, made it possible to assess whether an authorisation or search was necessary and proportionate.

6. Every suspicionless search power carries some risk of misuse, but the law does not become incompatible merely because safeguards cannot guarantee perfect compliance. Section 60’s randomness served legitimate deterrent and detection purposes. Where an officer acts unlawfully, the individual has a remedy; an individual failure does not establish that the governing law lacks adequate safeguards.

1. United Kingdom Supreme Court: The appeal was dismissed unanimously. The court affirmed that section 60 was compatible with article 8 and declined to grant any declaration.

2. Court of Appeal: In [2014] EWCA Civ 69; [2014] 1 WLR 3299, the court held that the article 8 interference was in accordance with the law. It also rejected the article 5 and article 14 claims.

3. Divisional Court: In [2012] EWHC 1977 (Admin), the court rejected the article 5 and article 14 claims and held that the article 8 interference was in accordance with the law.