Practice and Procedure


PUBLISHED November 21, 2003

Section 44(4)(b) Terrorism Act 2000 expressly envisaged that a stop and search authorisation could cover the whole of a police area. There were no grounds on which the subject authorisation could be set aside. The conduct of the Metropolitan police officers who stopped and searched the claimants did not entitle those claimants to a public law remedy.Applications by the claimants ('G' and 'Q') for judicial review of the legality of their stop and search by police officers on 9 September 2003, pursuant to an authorisation made under s.44 Terrorism Act 2000. Once an authorisation under s.44 had been given by the appropriate person no suspicion was needed for a police officer to stop and search, as long as the powers were exercised within the area and time specified. An authorisation, confirmed by the Secretary of State pursuant to s.46(4) of the 2000 Act, had been given by the appropriate senior police officer on 13 August 2003, under s.44(1) and (2) of the 2000 Act, in relation to the whole of the Metropolitan Police District. It was renewed on 9 September. The justification for the authorisation was the threat of terrorism against the background, inter alia, that it was near the anniversary of the 11 September 2001 terrorist attacks in America and that the Defence Systems and Equipment International Exhibition ('the arms fair') was being held at the Excel Centre in the Docklands, London. The authorising officer viewed the authorisation as both necessary and proportionate to the continuing high threat of terrorism in the UK and, in particular, London. G and Q were each separately stopped and searched under this authorisation whilst on their way to the arms fair. G was going to take part in a peaceful demonstration against the arms fair and Q was a press reporter. They were both permitted to go on their way after the search. G and Q submitted that the authorisation was unlawful because: (i) s.44 authorisations ought only to be given in response to an imminent terrorist threat to a specific location, in respect of which normal police powers of stop and search were inadequate; (ii) no guidance was given to the Metropolitan police officers as to how they should use the relevant stop and search powers or, alternatively, they were given guidance calculated to cause them to use the powers in an unlawful manner; and (iii) s.44 authorisations and the exercise of powers under them constituted a disproportionate interference with their rights under Art.8, Art.9, Art.10 and Art.11 of the European Convention on Human Rights.HELD: (1) The relevant senior police officer had a broad discretion as to the width of an authorisation. (2) Section 44(4)(b) of the 2000 Act expressly envisaged that an authorisation could cover the whole of a police area as a response to a general threat of terrorist activity on a substantial scale. (3) The formulation of measures to safeguard public and national security was primarily for the government and Parliament, on grounds of political legitimacy. A senior officer with major operational responsibility had made the authorisation and the Secretary of State had confirmed it. It was within their powers to do so. There were no grounds on which the authorisation should be set aside as a matter of law. (4) The conduct of the police officers did not entitle G and Q to a public law remedy. (5) The threat posed by terrorist activity and the risk that that threat could become a reality in London provided the necessary justification for any violation of the claimants' rights under Art.8, Art.9, Art.10 or Art.11 of the Convention that might otherwise be established. The exercise and use of the s.44 power was proportionate to the gravity of the risk and was prescribed by law. (6) (Obiter) As the s.44 powers went beyond anything permitted by common law powers, the police had to take particular care to ensure that the powers were not used arbitrarily or against any particular group of people. (7) (Obiter) There was just enough evidence that the arms fair was an occasion that concerned the police sufficiently to persuade them that use of s.44 powers was needed. It was however a close call and the Metropolitan Police would do well to review their training and briefing, and the language of the standard forms used for s.44 stop and searches. There was a need to revise the guidance notes in Code A Note 13, issued under the Police and Criminal Evidence Act 1984, so that s.44 considerations were not mixed up with considerations relevant to the stop and search powers under s.60 Criminal Justice and Public Order Act 1994.Applications dismissed.