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31/10/03 HIGH COURT RULING - ANALYSIS & EXCERPTS

This page has a short analysis and some excerpts from the recent ruling from the High Court on the anti-terror searches. To view a page of shorter excerpts from the ruling, click here. For the complete text of the ruling available at BAILII, click here. The case has the Neutral Citation Number [2003] EWHC 2545 (Admin).

The judgement came as a disappointment to many activists who expect that the police will now continue to target protesters for anti-terror searches. The police seem to target activists with anti-terror searches for three reasons. First, it delays/disrupts/intimidates protesters as they attempt to protest. Secondly, it allows discovery and seizure of items which could be used for criminal damage (eg- bolt cutters, spray paint, lock-ons). Finally, their is evidence from protesters that police gather intellegence during searches by seizing written materials, and taking down information that they find in people's personal effects (eg- phone numbers they find, drivers licence details, name of individual). Ordinary methods of policing should be used to achieve these ends. The justices clearly articulate that the purpose of anti-terror searches should be restricted to the attemps to discover items connected with terrorism. The jusctices clearly felt that groups unconnected with terrorism should not be targetted for anti-terror searches, and they also recommended ways in which the searches could be speeded up (to minimise the inconvenience for persons searched).

The following excerpts are from the 64 paragraphs of the judgement (accurate as of 4 November 2003). The original version did not feature any of the bold text or comments [found in italics within square brackets]. The bold and [italic] text was added by this website to highlight particular aspects of the text. The paragraphs are numbered, but sometimes the excerpts are not the complete paragraph numbered. To view each of the paragraphs in their correct and accurate context, click here.

Para 15

In addition to the guidance, such as it is, contained in Code A and its guidance notes, the Metropolitan Police have issued police officers with Form 5090, a standard Stop and Search form, which is given to people who have been stopped and searched. In the middle of the form is a tear-off sheet on which the police write details of the particular stop/search. They keep the top copy of the sheet themselves, and the person searched receives a carbon copy which is not always legible.

Para 16

This form is not really suited to stop/searches under section 44 where no grounds of suspicion are required. It presupposes, for instance, that the police are entitled to ask the person stopped his name, address, date of birth and height, and to record details about his personal appearance. So far as the actual search is concerned, the police officer is confronted with one line which starts "Object" and a number of lines which start "grounds". As the essence of the statutory power is that the police are entitled to stop people at random, search them to see if they have "articles of a kind which could be used in connection with terrorism", and then allow them to go on their way if no such articles are found (or nothing which might lead the police reasonably to suspect some matter which might give them further powers), this form seems to be inappropriate for a section 44 search. This is evidenced by the difficulties police officers encountered in filling it up during the arms fair stop/searches that are at the centre of this case.

Para 44

We have held that it was lawful for successive authorisations to remain in place for the whole of the Metropolitan Police district if the threats from terrorism were considered to be substantial enough to warrant these extraordinary powers being kept in place month after month. But because the powers are so sweeping and far beyond anything ever permitted by common law powers - the police can stop and search anybody at any time anywhere without any prior grounds of suspicion within a huge metropolitan district - it behoves the police to take particular care to ensure that these powers are not used arbitrarily or against any particular group of people. If they do not take this care, they will be at risk of being unable to defend themselves against challenges like those made in the present case.

Para 55

Of course these powers must not be used capriciously and arbitrarily, and if in any particular case a person has grounds for complaint that the police were misusing their powers he/she will have a private law action against the police officer(s) concerned. Similarly, if a court was satisfied that in a collective way the police were abusing their powers for an improper purpose, a public law remedy would be available.

Para 56

It is obvious that the police were not at all well prepared for the storm of protest that understandably broke out on 9th September. [Note: the protest referred to here is the press and public outcry at police use of anti-terror searches at DSEi.]  Important lessons have no doubt been learned. The powers conferred on the police under section 44 are powers which most British people would have hoped were completely unnecessary in this country, particularly in time of peace. People have always been free to come and go in this country as they wish unless the police have reasonable cause to stop them.

Para 57

It is elementary that if the police abuse these powers and target them disproportionately against those whom they perceive to be no particular friends of theirs the terrorists will have to that extent won. The right to demonstrate peacefully against an arms fair is just as important as the right to walk or cycle about the streets of London without being stopped by the police unless they have reasonable cause. If the police wish to use this extraordinary power to stop and search without cause they must exercise it in a way that does not give rise to legitimate complaints of arbitrary abuse of power.

Para 58

We are not, however, satisfied that the police's conduct on 9th September entitles either Mr Gillan or Ms Quinton to a public law remedy. There is just enough evidence available to persuade us that in the absence of any evidence that these powers were being habitually used on occasions which might represent symbolic targets, the arms fair was an occasion which concerned the police sufficiently to persuade them that the use of section 44 powers was needed (see paras 49-52 above). But it was a fairly close call, and the Metropolitan Police would do well to review their training and briefing and the language of the standard forms they use for section 44 stop/searches if they wish to avoid a similar challenge in future.

Para 62

Assistant Commissioner Veness and the Secretary of State used their powers after taking into account expert assessments of the threat posed by terrorist activity and the risk that that threat would become a reality in London.

Para 64

But people also want to get on with what they are doing. If they make it clear to the police that they do not and will not want to have a section 45(5) written statement [...] they should be allowed to sign a short statement to that effect. This will provide a complete answer to any application they might otherwise make under section 45(6) during the following 12 months. Absent explicit Parliamentary sanction, if they have given this written waiver, it is wholly unnecessary for them to be delayed while anything comparable to the present Form 5090 is completed. It seems to us that a lot of the trouble in this case has arisen because what should be a very quick random stop/search procedure has been elevated into a slow bureaucratic process that would be far more appropriate for a stop/search where there is reasonable cause for police suspicion. No wonder people got annoyed.