Section 44 powers have been declared illegal by the European Court of Human Rights!

IF YOU ARE STOPPED UNDER SECTION 44 CONTACT A SOLICITOR IMMEDIATELY.

Over the last 12 months republicans and nationalists throughout the six counties have experienced an unprecedented level of harassment and intimidation through the operation of Section 44 of the Terrorism Act 2000 . Between 1 July and 30 Sept 2009 10,265 stop and searches were carried out under section 44. That compares to 1,657 in the same period in 2008!

The network has consistently challenged these searches which we deemed to be nothing other than political policing, aimed at stopping legal and legitimate political dissent. Yesterday, the European Court of Human Rights ruled that the powers used by the police are in fact illegal and breach Article 8 (right to respect for private and family) of the European Convention on Human Rights.The decision has been appealed to the Grand Chamber of the ECHR. However, every person stopped should now report the incident to a solicitor. It is important that this message is sent to all groups. It is very unlikely that the Grand Chamber will uphold the British governments appeal in any form, so if you are stopped under this illegal legislation report it!

Below we have included two additional quotes, one from the BBC and the other from the European Courts of Human Rights own press release.

The BBC stated" Police powers to use terror laws to stop and search people without grounds for suspicion are illegal, the European Court of Human Rights has ruled. The Strasbourg court has been hearing a case involving two people stopped near an arms fair in London in 2003. It said that Kevin Gillan and Pennie Quinton's right to respect for a private and family life was violated. Home Secretary Alan Johnson said he was disappointed with the ruling and would appeal against it. Chief Constable Craig Mackey of the Association of Chief Police Officers said officers would continue to use stop and search powers while the appeal was pending. 'Discriminatory use' Section 44 of the Terrorism Act 2000 allows the home secretary to authorise police to make random searches in certain circumstances. But the European Court of Human Rights said the pair's rights under Article 8 of the European Convention on Human Rights had been violated. The court said the stop and search powers were "not sufficiently circumscribed" and there were not "adequate legal safeguards against abuse".

It also concluded that "the risks of the discriminatory use of the powers" were "a very real consideration". The pair were awarded 33,850 euros (£30,400) to cover legal costs". They were both stopped outside the Defence Systems and Equipment International exhibition at the Excel Centre in London Docklands in 2003, where there had already been protests and demonstrations. Mr Gillan, 32, from London, was detained by police for about 20 minutes as he was cycling to join the demonstration. Ms Quinton, 39, a journalist from London, was in the area to film the protests. She said she felt she was detained for about 30 minutes, although police records said it was five minutes. Speaking to BBC Radio 4's The World At One, Ms Quinton said she hoped the ruling would lead to the government drawing up a "fairer body of legislation to protect us". She said: "The court hasn't said that there's no longer any scope for stops and searches, but that safeguards need to be in place to prevent misuse of these powers, because right now if somebody is stopped and searched, they have got no redress if they feel they were mistreated during the stop and search process. "It's not about saying that there's no need for stop and search. What we're really saying is people have a right to privacy and there needs to be a balance between police powers to ensure our safety but also our rights to a private life."

Parliamentarians must finally sort out this mess

Corinna Ferguson Liberty Mr Gillan said: "It's fantastic news after a long struggle. I look to the government for a strong response." Both were represented by Corinna Ferguson, legal officer for Liberty, who said the pressure group had "consistently warned" the government about the "dangers" of the powers. Ms Ferguson added: "The public, police and Court of Human Rights all share our concerns for privacy, protest, race equality and community solidarity that come with this sloppy law. "In the coming weeks, parliamentarians must finally sort out this mess." But Policing and Security Minister David Hanson said he was disappointed at the decision given that the government had won all previous challenges in the UK courts. He said: "Stop and search under section 44 of the Terrorism Act 2000 is an important tool in a package of measures in the ongoing fight against terrorism." A statement by the Metropolitan Police said the powers remained "an important tactic in our counter terrorism strategy". 'Balancing exercise' Lord Carlile, the government's independent reviewer of anti-terrorist legislation, told the World At One that the implications of the ruling were potentially "quite serious" and may require a change in the law. He added: "In my view, section 44 is being used far too often on a random basis without any reasoning behind its use. "The fundamental point that the court is making is that it increases the possibility of random interference with the legitimate liberties of the citizen. "On the other hand, we have to be safe against terrorism. There is therefore a very difficult balancing exercise to be done and I'm sure Section 44 will come under intelligent scrutiny in the coming months." The decision overturned a 2003 High Court ruling - subsequently upheld by the Court of Appeal and the House of Lords - that the use of stop and search, and any consequent violation of human rights, was proportionate under the European Convention on Human Rights and justified in the light of the threat of terrorism. The Section 44 search powers have proved controversial, and in May last year the Metropolitan Police in London said they would be scaled back. The force had faced criticism that such searches had been alienating people from ethnic minorities in the capital. Its commissioner, Sir Paul Stephenson, said the powers should be restricted to "iconic" sites, including Parliament and Buckingham Palace.



THE ACTUAL PRESS RELEASE FROM EUROPE

Press release issued by the Registrar

Chamber judgment1

Gillan and Quinton v. the United Kingdom (application no. 4158/05).

POLICE STOP AND SEARCH POWERS UNDER ANTI-TERRORISM LEGISLATION TOO WIDE AND NOT ADEQUATELY SAFEGUARDED BY DOMESTIC LAW AGAINST ABUSE

Unanimously

Violation of Article 8 (right to respect for private and family life)

of the European Convention on Human Rights.

Principal facts

The case concerned the police power in the United Kingdom under sections 44-47 of the Terrorism Act 2000 (“the 2000 Act”) to stop and search individuals without reasonable suspicion of wrongdoing.

Under the 2000 Act a senior police officer may issue an authorisation, if he or she considers it “expedient for the prevention of acts of terrorism”, permitting any uniformed police officer within a defined geographical area to stop any person and search the person and anything carried by him or her. The authorisation must be confirmed by the Secretary of State within 48 hours. A search can be carried out by a constable in an authorised area whether or not he has grounds for suspicion, but may only be ‘for articles of a kind which could be used in connection with terrorism’. The police officer may request the individual to remove headgear, footwear, outer clothing and gloves and place his or her hand inside pockets, feel around and inside collars, socks and shoes and search hair. The search takes place in public and failure to submit to it amounts to an offence punishable by imprisonment or a fine or both.

Sections 44-47 of the 2000 Act came into force on 19 February 2001. A rolling programme of successive section 44 authorisations, each covering the whole of the Metropolitan Police district and each for the maximum permissible period (28 days), have been made and confirmed ever since that time.

Between 2004 and 2008 the total of searches recorded by the Ministry of Justice went from 33,177 to 117,278.

The applicants, Kevin Gillan and Pennie Quinton, are British nationals who were born in 1977 and 1971 respectively and live in London. On 9 September 2003 they were both stopped and searched by the police, acting under sections 44-47 of the 2000 Act, while on their way to a demonstration close to an arms fair held in the Docklands area of East London. Mr Gillan was riding a bicycle and carrying a rucksack when stopped and searched by two police officers. Ms Quinton, a journalist, was stopped and searched by a police officer and ordered to stop filming in spite of the fact that she showed her press cards. Mr Gillan was allowed to go on his way after having been detained for about 20 minutes; the record of Ms Quinton’s search showed she was stopped for five minutes but she thought it was more like 30 minutes.

The applicants applied for judicial review. On 31 October 2003 the High Court dismissed the application. The Court of Appeal, on 29 July 2004, made no order on the applicants’ claims against the Commissioner of the Metropolitan Police and dismissed the claim against the Secretary of State. On 8 March 2006 the House of Lords unanimously dismissed the applicants’ appeals. In particular, the Law Lords were doubtful whether an ordinary superficial search of the person could be said to show a lack of respect for private life, so as to bring Article 8 of the European Convention on Human Rights into operation. Even if Article 8 did apply, the procedure was in accordance with the law and it would be impossible to regard a proper exercise of the power as other than proportionate when seeking to counter the great danger of terrorism.

Complaints, procedure and composition of the Court

The applicants complained that the use of the section 44 power to stop and search each of them breached their rights under Articles 5 (right to liberty and security), 8 (right to respect for private and family life), 10 (freedom of expression) and 11 (freedom of assembly and association).

The application was lodged with the European Court of Human Rights on 26 January 2005 and declared admissible on 12 May 2009. A hearing was held on the case on Tuesday 12 May 2009.

Judgment was given by a Chamber of seven judges, composed as follows:

Lech Garlicki (Poland), President, Nicolas Bratza (the United Kingdom), Giovanni Bonello (Malta), Ljiljana Mijovic (Bosnia and Herzegovina), Päivi Hirvelä (Finland), Ledi Bianku (Albania), Nebojša Vucinic (Montenegro), judges,

and also Lawrence Early, Section Registrar.

Decision of the Court

Article 8

Whether there was an interference

The Court considered that the use of the coercive powers conferred by the anti-terrorism legislation to require an individual to submit to a detailed search of their person, clothing and personal belongings amounted to a clear interference with the right to respect for private life. The public nature of the search, with the discomfort of having personal information exposed to public view, might even in certain cases compound the seriousness of the interference because of an element of humiliation and embarrassment. The interference could not be compared to searches of travellers at airports. An air traveller may be seen as consenting to such a search by choosing to travel. He knows that he and his bags are liable to be searched before boarding the aeroplane and has a freedom of choice, since he can leave personal items behind and walk away without being subjected to a search. The search powers under section 44 are qualitatively different. The individual can be stopped anywhere and at any time, without notice and without any choice as to whether or not to submit to a search.

Whether the interference was “in accordance with the law”

In the Court's view, the wide discretion conferred on the police under the 2000 Act, both in terms of the authorisation of the power to stop and search and its application in practice, had not been curbed by adequate legal safeguards so as to offer the individual adequate protection against arbitrary interference.

Firstly, at the authorisation stage there was no requirement that the stop and search power be considered “necessary”, only “expedient”. The authorisation was subject to confirmation by the Secretary of State within 48 hours and was renewable after 28 days. The Secretary of State could not alter the geographical coverage of an authorisation and although he or she could refuse confirmation or substitute an earlier time of expiry, it appeared that in practice this had never been done. Indeed, the temporal and geographical restrictions provided by Parliament had failed to act as any real check on the issuing of authorisations by the executive, demonstrated by the fact that an authorisation for the Metropolitan Police District had been continuously renewed in a “rolling programme” since the powers had first been granted.

An additional safeguard was provided by the Independent Reviewer appointed under the 2000 Act. However, his powers were confined to reporting on the general operation of the statutory provisions and he had no right to cancel or alter authorisations, despite the fact that in every report from May 2006 onwards he had expressed the clear view that “section 44 could be used less and I expect it to be used less”.

Of still further concern was the breadth of the discretion conferred on the individual police officer. The officer’s decision to stop and search an individual was one based exclusively on the “hunch” or “professional intuition”. Not only was it unnecessary for him to demonstrate the existence of any reasonable suspicion; he was not required even subjectively to suspect anything about the person stopped and searched. The sole proviso was that the search had to be for the purpose of looking for articles which could be used in connection with terrorism, a very wide category which covering many articles commonly carried by people in the streets. Provided the person concerned was stopped for the purpose of searching for such articles, the police officer did not even have to have grounds for suspecting the presence of such articles.

The Court was struck by the statistical and other evidence showing the extent to which police officers resorted to the powers of stop and search under section 44 of the Act and found that there was a clear risk of arbitrariness in granting such broad discretion to the police officer. While the present cases did not concern black applicants or those of Asian origin, the risks of the discriminatory use of the powers against such persons was a very real consideration and the statistics showed that black and Asian persons were disproportionately affected by the powers. There was, furthermore, a risk that such a widely framed power could be misused against demonstrators and protestors in breach of Article 10 and/or 11 of the Convention.

Although the powers of authorisation and confirmation exercised by the senior police officer and the Secretary of State respectively were subject to judicial review, the breadth of the discretion involved meant that applicants faced formidable obstacles in showing that any authorisation and confirmation were ultra vires or an abuse of power. Similarly, as shown in the applicants’ case, judicial review or an action in damages to challenge the exercise of the stop and search powers by a police officer in an individual case were unlikely to succeed. The absence of any obligation on the part of the officer to show a reasonable suspicion made it almost impossible to prove that that power had been improperly exercised.

In conclusion, the Court considered that the powers of authorisation and confirmation as well as those of stop and search under sections 44 and 45 of the 2000 Act were neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. They were not, therefore, “in accordance with the law”, in violation of Article 8.

Other Articles

Given the finding above, the Court held that it was not necessary to examine the applicants’ complaints under Articles 5, 10 and 11.

Article 41 (just satisfaction)

The Court held that the finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage suffered by the applicants. They were awarded 33,850 euros (EUR) for costs and expenses.

*** The judgment is available only in English. This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its website (http://www.echr.coe.int).

Press contacts

Tracey Turner-Tretz (telephone : 00 33 (0)3 88 41 35 30) Stefano Piedimonte (telephone : 00 33 (0)3 90 21 42 04) Kristina Pencheva-Malinowski (telephone : 00 33 (0)3 88 41 35 70) Céline Menu-Lange (telephone : 00 33 (0)3 90 21 58 77) Frédéric Dolt (telephone : 00 33 (0)3 90 21 53 39) Nina Salomon (telephone: 00 33 (0)3 90 21 49 79)

The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.

1 Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.