Roberts, R (on the application of) v The Commissioner of Police of the Metropolis & Ors

Section 60 of the Criminal Justice and Public Order Act 1994 was designed to provide police officers with additional powers to stop and search persons and vehicles for offensive weapons or dangerous instruments. Its unusual feature is that an officer exercising the power need not have grounds for suspecting that the person or vehicle is carrying weapons or articles of that kind. On this appeal, Ann Juliette Roberts is seeking to establish that section 60 offends Article 5 and/or Article 8 of the European Convention on Human Rights and Fundamental Freedoms. It is further suggested that section 60 is used disproportionately to stop and search black people in London in breach of Article 14.

It is clear that the purpose of section 60 is to enlarge police powers in the face of localised violence involving the use of offensive weapons, including knives. The power to stop and search conferred by it is subject to territorial and temporal limits and applies only when a valid authorisation is in place. The section is in the following terms:

“Dangerous instruments” are defined in section 60 (11) as “instruments which have a blade or are sharply pointed. “Offensive weapons” have the meaning given by section 1(9) of the Police and Criminal Evidence Act 1984, that is any article “(a) made or adapted for use for causing injury to persons; or (b) intended by the person having it with him for such use by him or by some other person”. In the case of an incident of serious violence in the locality, it includes “any article used in the incident to cause or threaten injury to any person or otherwise to intimidate …”.

On 9 September 2010 the appellant was travelling on a bus in Tottenham. She was fare-dodging. She was seen by a Transport for London ticket inspector. They both left the bus at the same stop. In an attempt to avoid liability, the appellant gave a false name and false address to the ticket inspector. The inspector, being suspicious, asked the appellant for proof of her identity. The appellant falsely claimed that she had no proof of identity on her. She was holding her handbag close to her body in a suspicious manner. The inspector checked the name and address provided by the appellant against the electoral register. It became apparent that the details were false. The inspector then secured the assistance of Police Constable Reid. The appellant again stated that she had no identification documents with her. PC Reid also noticed that the appellant was holding her bag tightly and that she did not want to open it in the presence of the officer. PC Reid suspected that the appellant might have an offensive weapon in her bag. It was not uncommon for middle-aged women to carry such weapons in that area. Indeed PC Reid had been involved in a search of a woman of a similar age earlier that day and that woman had been arrested for possession of a firearm and an offensive weapon (CS gas). PC Reid therefore decided to search the appellant pursuant to section 60, there being an authorisation in place. The appellant tried to walk away and then attempted to resist the search. Eventually she was handcuffed and searched.

The section 60 authorisation had been granted by Superintendant Barclay (Deputy Borough Commander). It ran from 1pm on 9 September until 6am on 10 September. It was granted because, in the previous weeks, there had been an escalation in gang violence in Tottenham. Specialist officers from the Territorial Support Group had been drafted in to parts of the Borough of Haringey. In the previous nine days there had been numerous gang-related violent crimes. Indeed, on the previous day five new intelligence reports were received indicating movements of firearms and further incidents of violence which were likely on the afternoon, evening and night of 9 September. The authorisation was targeted. Several wards within Haringey were excluded on the basis that they were outside the troublesome area and there was no evidence that weapons would be carried in them. Superintendant Barclay expressly considered whether the authorisation was proportionate and necessary. He was satisfied that it was. The location was considered to be a hot spot for violence where people carried knives. It is not disputed that the authorisation had a rational basis pursuant to section 60. The central issue is whether section 60 is compatible with Articles 5 and 8.

The judgment of Lord Justice Moses (with whom Mr Justice Eady agreed) was a robust rejection of the appellant’s contentions – [2012] EWHC 1977 (Admin). As to the compatibility of section 60 with Article 5, Lord Justice Moses said (at paragraph 15):

Turning to compatibility with Article 8 he said (at paragraph 42):

He later (at paragraph 45) emphasised the margin of appreciation, adding:

Lord Justice Moses then went on to consider the challenge pursuant to Article 14 when read with Article 8. He said (at paragraph 47):

Article 5.1 of the ECHR provides:

It is not suggested that subjection to a section 60 search falls within “the following cases” of permissible arrest and detention. The first question is whether subjection to a section 60 search involves a deprivation of liberty at all. In my judgment, this admits of a short answer. R (Gillan) v Commissioner of Police of the Metropolis[2006] 2 AC 307 was concerned with the stopping and searching of members of the public pursuant to sections 44 and 45 of the Terrorism Act 2000. On the question whether there had been breaches of Article 5, Lord Bingham (with whom the other members of the Judicial Committee agreed) said (at paragraph 25):

It is true that, when Gillan reached the Strasbourg Court [2010] 50 EHRR 45, the judgment was more equivocal. Thus, the Court stated (at paragraph 57):

In any event, it seems to me that the question whether section 60 involves a deprivation of liberty falls to be addressed by reference to the time it is likely to take a police officer to carry out the envisaged search. The fact that the subject’s behaviour or a positive result from the search may lead to consequential arrest, detention and criminal charges is, in my judgment, irrelevant. In fairness to Mr Hugh Southey QC, his oral submissions contained only the briefest reference to Article 5. I am entirely satisfied that it has no application in the present case.

The threshold question in relation to Article 8 is whether someone stopped and searched pursuant to section 60 thereby suffers an interference with his rights to respect for his private life such as to require justification pursuant to Article 8.2. The Divisional Court considered that Article 8.1 is engaged. However, on behalf of the Commissioner, Mr Jeremy Johnson QC has sought to reopen this question before us. The authority upon which he relies is another passage from the speech of Lord Bingham in Gillan where he said (at paragraph 28):

For my part, I consider that Article 8 is engaged, albeit marginally, in the present circumstances. For present purposes, I simply refer (as did the Divisional Court) to the potential humiliation and embarrassment of being subjected to a random search in a public place by a police officer who need not have reasonable suspicion of criminality in any form. I refer also to Colon v The Netherlands (see paragraph 22 below) where, in reasonably similar circumstances, Article 8 was held to be engaged.

The real Article 8 battleground in this case is whether the power conferred by section 60 is “in accordance with the law”. That is where Mr Southey focuses his attack. He submits that, even before one gets to proportionality and the balancing exercise required by Article 8.2, the section 60 power is not “in accordance with the law” because it permits the police to stop and search a subject arbitrarily.

Much of the debate about arbitrariness has been based upon Gillan in which the stop and search powers contained in sections 44-46 of the Terrorism Act 2000 were considered. Section 44 enabled a senior police officer (at least an Assistant Chief Constable or, in London, at least a Commander) to issue an authorisation whereby a uniformed police officer was permitted to stop and search vehicles or pedestrians without a requirement of reasonable suspicion. By section 44(3) such an authorisation

The authorisation could last for up to 28 days and was subject to confirmation by the Secretary of State (section 46). It could cover the whole of the area of the particular police force and a 28-day authorisation could be renewed on a rolling basis. A search pursuant to a section 44 authorisation had to be for “articles of a kind which could be used in connection with terrorism”. Authorisations were subject to statutory oversight on an annual basis by the Independent Reviewer.

The challenge to the section 44 regime in the domestic courts failed: [2006] 2 AC 307. In essence, the Supreme Court considered that the rule against arbitrariness was satisfied by the safeguards written into the scheme. Lord Bingham enumerated them as follows (at paragraph 14):

The Court also referred to statistical material to which I shall return later. It was further concerned about the difficulty which it considered a claimant could face if he chose to litigate an alleged misuse of power. It concluded:

It is not suggested that Gillan is dispositive of the present case. The statutory provisions are different. However the decisions of the House of Lords and of the Strasbourg Court (which we are bound to “take into account” by section 3 of the Human Rights Act 1998) contain material which assists our consideration. We also have to keep in mind that, when dealing with the decisions in Gillan, it is not for us to defer to Strasbourg at the expense of the House of Lords. That would be a matter for the Supreme Court: Kay v Lambeth LBC [2006] 2 AC 465.

Before addressing the question of arbitrariness in relation to section 60, I should refer to one other Strasbourg case which is relied upon by both sides, namely Colon v The Netherlands (Application no. 49458/06, 15 May 2012). Like the present case, it was concerned with authorisation of a power to stop and search for weapons within territorial limits in the absence of a need for reasonable suspicion. The principal argument for the applicant was that the judicial remedies were ineffective, in particular because “an essential guarantee in the form of prior judicial control was missing” (paragraph 74). The Court rejected that and other arguments on behalf of the applicant and concluded (at paragraph 79) that the interference was “in accordance with the law”.

Where does all this leave the present case? In my judgment, the scheme of section 60 cannot be said to be arbitrary. It permits the use of stop and search powers only for a very limited period of time – up to 24 hours, extendable by a maximum of a further 24 hours. Its temporal limitation is accompanied by a territorial limitation. The authorisation must relate to a “locality” within a police area. Accordingly, there is no question of a “rolling programme” across the whole area covered by a police authority. It is based on local intelligence of a specific kind, namely serious violence involving weapons. These factors differentiate the present context from that in Gillan. It is particularly significant that, unlike the scheme contained in sections 44-46 of the Terrorism Act, section 60 requires that the authorising officer reasonably believes specified things relating to serious violence, dangerous instruments and offensive weapons. That incorporates an objective criterion which is more readily susceptible to judicial review than a purely subjective basis for authorisation. On behalf of the appellant, Mr Southey points to the word “expedient” and refers to the passage in the Strasbourg judgment in Gillan (paragraph 80) which attached significance to the fact that the authorising officer had only to “consider it expedient” to issue an authorisation under section 44(3). However, it seems to me that expediency underwritten by reasonable belief as to the existence of specified prerequisites is a more robust safeguard.

There is a further aspect to the concept of “necessity”. Although it does not appear in section 60(1), that does not mean that it is without relevance. Although it is absent from what is “in accordance with the law”, it remains relevant, in its ECHR sense, to any consideration of justification pursuant to Article 8(2). As the Court said in Colon:

I acknowledge that, under section 60, the authorising officer will usually be of a lower rank than under section 44. That is the consequence of the “local” nature of the section 60 power. Mr James Eadie QC refers to it as “a short-term power exercised in a particular locality, based on local intelligence and violent crime patterns”. I believe that to be an apt description. It is not significant that the section 60 scheme does not attract the oversight of a statutory independent reviewer. The need for such a person in the context of counter-terrorism powers is accentuated by the constraints on disclosure of intelligence material to those minded to challenge the lawfulness of the use of such powers. The same constraints do not exist (at least, not to the same extent) in the section 60 context, as the disclosed material in the present case demonstrates.

So far I have concentrated on the safeguards surrounding authorisation. Part of Mr Southey’s submission on arbitrariness is directed to the power of the officer who actually stops and searches, without the need for even a subjective belief in relation to the person stopped and searched. It is true that this, too, was a concern of the Strasbourg Court in Gillan (paragraph 83). However, it is clear from Colon that the absence of such a requirement is not necessarily fatal. As I said earlier, the present case bears more resemblance to Colon than it does to Gillan. In my judgment, the power pursuant to section 60(5), underscored as it is by the Code of Practice, and consequential as it is on the objectively constrained authorisation, does not fall into the category of arbitrariness.

So far as the individual officer who stops and searches is concerned, it is significant that, whilst section 60 does not require him to have reasonable grounds of suspicion in relation to the person stopped, he is at all times controlled by Code A issued under the Police and Criminal Evidence Act 1984. The following provisions of the Code (which I take from the 2011 version, which was not materially different from the 2009 version in force at the material time) are material:

In Notes for Guidance appended to Code A, it is stated that authorisations under section 60 are only to be used

In summary, I am entirely satisfied that section 60 does not provide an arbitrary power. It is “in accordance with the law”. It is circumscribed by specific requirements so that, notwithstanding its exceptional nature, it is justified pursuant to Article 8(2).

Article 14 of ECHR is not in the form of a free-standing, all-embracing protection against discrimination. It is concerned with securing “the enjoyment of the rights and freedoms set forth in this Convention”. Thus, the alleged discrimination must come “within the ambit” of another Convention right. The Convention rights sought to be relied on are Articles 5 and 8. The mere fact that no substantive breach of Article 5 or Article 8 is established does not necessarily mean that discrimination on a prescribed ground is absent. The circumstances may still come within their ambit. Whilst I am not persuaded that we are even within the ambit of Article 5 (see paragraph 13, above), I am prepared to accept that, for the reasons explained in paragraph 15, above, we are within the ambit of Article 8.

In his skeleton argument for this appeal, Mr Southey stated:

As I have related (at paragraph 9, above), the Divisional Court declined to involve itself with the statistics upon which Mr Southey sought to rely. Since then, he has sought to adduce further statistics in this Court. Mr Johnson opposes such an application but submits that, if this further material is admitted, we should also receive the Commissioner’s latest statistics. For my part, I do not think that we should become embroiled in tendentious statistical material. It is true that the Strasbourg Court used statistical material in DH. However, it did so following Hoogendijk (2005) 40 EHRR SE22 where the Court had referred to “undisputed official statistics” which established a prima facie case of indirect discrimination. Also, the reference to statistics in Gillan vUnited Kingdom (at paragraph 83) was to the Ministry of Justice’s own figures which do not seem to have been disputed. In the present case, on the other hand, it is readily apparent that the statistics are controversial and give rise to difficult issues of interpretation which it would be difficult to resolve without expert assistance of a kind with which we have not been provided. (For a recent critique of a statistical assessment of the use of police power, see Report on the Operation in 2012 of the Terrorism Act 2000 and of part 1 of the Terrorism Act 2006 , by David Anderson QC, paragraph 9.19 - 9.20).

It is appropriate to stand back and take stock of Article 14 in the circumstances of this case. It is not suggested, nor could it be, that section 60 is intrinsically discriminatory. Nor is it suggested that the grounds for authorisation were not established. It is true that the area covered by the authorisation has a sizeable proportion of black residents (although “residence” is not directly relevant to authorisation or use of the stop and search power). However, the assumed facts of this case demonstrate that Miss Roberts was not subjected to section 60 because of her ethnicity. She drew attention to herself as a fare dodger at a time and in a place where a section 60 authorisation was in place in accordance with the statutory requirements.

I am sensitive to the fact that the use of stop and search powers, including those under section 60, attract criticism, particularly among some ethnic minority communities in London. That is a proper subject for debate elsewhere. However, it does not have the potential to render justiciable a specific allegation of discrimination in this particular case. I am wholly unpersuaded that a breach of article 14 has been established. I have preferred to deal with the issue in this way rather than on the basis of a pleading point taken by Mr Johnson.

It follows from what I have said that I would dismiss this appeal.

I agree.

I also agree.