Gillan & Anor, R (on the application of) v Commissioner of the Police for the Metropolis & Anor

In these proceedings the claimants Kevin Gillan and Pennie Quinton seek to challenge by way of judicial review the legality of their treatment by police officers who purported to stop and search them on 9^th September 2003 pursuant to an authorisation made under section 44 of the Terrorism Act 2000 (“the 2000 Act”).

Mr Gillan is a 26-year old student from Sheffield. He was stopped on his red mountain bicycle in Royal Albert Way when he was engaged in trying to join a demonstration being conducted against the Defence Systems and Equipment International Exhibition (“the arms fair”) which was being held at the Excel Centre, Docklands, in East London. Ms Quinton was stopped when she was walking towards the fair on Connaught Bridge, Royal Albert Road. She is a working journalist, and at the time she was stopped she was wearing a photographer’s jacket and was carrying a small bag. She had a camera in her hand. The police persisted in searching her even after she had showed a constable her press passes. Both claimants were of good character, and nothing incriminating was found as a result of the searches. They were both allowed by the police to go on their way.

Mr Gillan’s application, which raises issues under section 44(1) of the 2000 Act, was listed on notice as a permission application with the substantive judicial review application to follow if permission was granted. Ms Quinton’s application, which raises identical issues under section 44(2), was listed on notice for mention. The respondents were content to dispense with the preliminary formalities in her case, and we granted the claimants permission to apply for judicial review in each case. This is our judgment on the substantive applications.

Sections 44-47 of the 2000 Act form a group of sections headed “Power to stop and search”. They appear in Part V of the Act, which is entitled “Counter-Terrorist Powers”. The Act is divided into eight parts. Of the other seven, our attention was drawn in particular to Part IV (entitled “Terrorism Investigations”), which is concerned with matters like cordons, the disclosure of information and the obtaining of evidence. Part V itself starts with four sections (sections 40-43) giving the police a conventional power of arrest without warrant, together with powers to search premises (on a justice’s warrant) and persons (without warrant) in circumstances where there are reasonable grounds to suspect some involvement in terrorism. Sections 44 to 47 are different because the police’s powers are derived from an authorisation given under section 44(1) or 44(2). Once the authorisation is given no suspicion of any kind is needed before the police can exercise the powers granted to them by the authorisation, so long as they are exercised within the area and within the period of time specified in the authorisation.

Section 44 provides, so far as is material, that:

“(1)

An authorisation under this subsection authorises any constable in uniform to stop a vehicle in an area or at a place specified in the authorisation and to search –

(a)

the vehicle;

(b)

the driver of the vehicle;

(c)

a passenger in the vehicle;

(d)

anything in or on the vehicle or caused by the driver or a passenger.

(2)

An authorisation under this subsection authorises any constable in uniform to stop a pedestrian in an area or at a place specified in the authorisation and to search –

(a)

the pedestrian;

(b)

anything carried by him.

(3)

An authorisation under subsection (1) or (2) may be given only if the person giving it considers it expedient for the prevention of acts of terrorism.

(4)

An authorisation may be given –

…

(b)

where the specified area or place is the whole or part of the metropolitan police district, by a police officer for the district who is of at least the rank of commander of the metropolitan police …”

Sub-sections 44(4A) – (4C), which were inserted by amendment in 2001, confer equivalent powers on members of the British Transport Police Force and the Ministry of Defence Police in specified areas or places. Subsection 44(5) provides:

“If an authorisation is granted orally, the person giving it shall confirm it in writing as soon as reasonably practicable.”

Section 45 provides:

“(1)

The power conferred by an authorisation under section 44(1) or (2) -

(a)

may be exercised only for the purpose of searching for articles of a kind which could be used in connection with terrorism, and

(b)

may be exercised whether or not the constable has grounds for suspecting the presence of articles of that kind.

(2)

A constable may seize and retain an article which he discovers in the course of a search by virtue of section 44(1) or (2) and which he reasonably suspects is intended to be used in connection with terrorism.

(3)

A constable exercising the power conferred by an authorisation may not require a person to remove any clothing in public except for headgear, footwear, or outer coat, a jacket or gloves.

(4)

Where a constable proposes to search a person or vehicle by virtue of section 44(1) or (2) he may detain the person or vehicle for such time as is reasonably required to permit the search to be carried out at or near the place where the person or vehicle is stopped.

(5)

Where –

(a)

a vehicle or pedestrian is stopped by virtue of section 44(1) or (2), and

(b)

the driver of the vehicle or the pedestrian applies for a written statement that the vehicle was stopped, or that he was stopped, by virtue of section 44(1) or (2),

the written statement shall be provided.

(6)

An application under subsection (5) must be made within the period of 12 months beginning with the date on which the vehicle or pedestrian was stopped.”

Section 46 deals with the duration of an authorisation. It comes into effect when it is given, and it ends at the time and on the date specified in it, which must not be later than 28 days afterwards. The person who gives an authorisation must inform the Secretary of State as soon as reasonably practicable, and if the Secretary of State does not confirm it within 48 hours of the authorisation being given, it will lapse. The Secretary of State may substitute an earlier date or time when the authorisation’s effect will end, and may cancel an authorisation with effect from a specified time (s 46(1-6)). Subsection (7) provides for renewals, which are governed by the same regime.

Section 47 provides a criminal sanction in the event that a person fails to stop a vehicle when required to do so under these provisions, or fails to stop when required to do so, or wilfully obstructs a constable in the exercise of the powers conferred on him by these provisions.

Code of Practice A, issued under section 66(a) of the Police and Criminal Evidence Act 1984 (“PACE”) and significantly revised with effect from 1^st April 2003, is concerned with the exercise by police officers of a variety of statutory powers to search a person or a vehicle without first making an arrest. The Code consists of five sections, notes for guidance, and two annexes. The notes for guidance are expressed not to be provisions of the code. They are described as guidance to police officers and others about its application and interpretation. Annex A, for its part, lists the 19 main statutory powers of stop and search with which the code is concerned: the list is not to be regarded as definitive.

What the list does not make clear is that with the single exception of the search powers given to examining officers as part of the Port and Border Controls governed by schedule 7 of the 2000 Act, none of the powers set out in the list can be exercised without prior suspicion on the part of the police except the powers described in para 5 above, and the power created by section 60 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”) if an authorisation is given when police anticipate that incidents of serious violence may take place (see para 13 below).

Paragraph 2.1 of the Code divides these powers into four categories. We are not concerned with the first or fourth of these categories because those powers are only available when the police first have a reasonable suspicion of some matter or other defined in the governing statute: in relation to the fourth category they must have a reasonable suspicion before they may lawfully search premises, although they may then search a person on those premises without any further suspicion relating to him.

We ought not to be concerned with the second category, either. This relates to the powers first introduced in 1994 by which stop and search powers are given to the police under the umbrella of a short term authorisation made, for instance, when incidents involving serious violence are anticipated. In the main body of the Code these powers are described in paras 2.12-2.14, and the section 44 powers with which we are concerned on this application are described in paras 2.19-2.26. Unhappily in para 13 of the Notes for Guidance these two powers are confusingly muddled up. This paragraph states:

“13.

It is for the authorising officer to determine the geographical area in which the use of the powers is to be authorised. In doing so the officer may wish to take into account factors such as the nature and venue of the anticipated incident, the number of people who may be in the immediate area of any possible incident, their access to surrounding areas and the anticipated level of violence. The officer should not set a geographical area which is wider than that he or she believes necessary for the purpose of preventing anticipated violence, the carrying of knives or offensive weapons, acts of terrorism, or, in the case of section 60AA, the prevention of commission of offences. It is particularly important to ensure that constables exercising such powers are fully aware of where they may be used. If the area specified is smaller than the whole force area, the officer giving the authorisation should specify either the streets which form the boundary of the area or a divisional boundary within the force area. If the power is to be used in response to a threat or incident that straddles police force areas, an officer from each of the forces concerned will need to give an authorisation.”

The second sentence and nearly the whole of the third sentence have nothing at all to do with section 44 powers.

Paras 2.19-2.23 of the Code are concerned with setting out some of the relevant principles of law governing the granting and confirmation of an authorisation under section 44 of the 2000 Act. Paras 2.24-2.26 are the only provisions which give practical advice to police officers as to what they may or may not do when a section 44 authorisation is in place. Thus they are told that the powers may be exercised by a constable in uniform only for the purposes of searching for articles of a kind which could be used in connection with terrorism, and that they may be used whether or not there are any grounds for suspecting the presence of such articles (para 2.24). They are also told that if when exercising these powers an officer forms reasonable grounds for suspicion, a search may then be carried out under other powers (para 2.26). The only other practical guidance they receive is in para 2.25, which provides that:

“2.25

The selection of persons stopped under section 44 of Terrorism Act 2000 should reflect an objective assessment of the threat posed by the various terrorist groups active in Great Britain. The powers must not be used to stop and search for reasons unconnected with terrorism. Officers must take particular care not to discriminate against members of minority ethnic groups in the exercise of these powers. There may be circumstances, however, where it is appropriate for officers to take account of a person’s ethnic origin in selecting persons to be stopped in response to a specific terrorist threat (for example, some international terrorist groups are associated with particular ethnic identities). [See Notes 12 and 13].”

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.

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.

This is the first occasion, so far as we are aware, when the police’s use of these powers have been called into question in this court. It is therefore necessary to say something about their history.

In Chapter 10 of the report of his Inquiry into Legislation against Terrorism (Cm 3420, October 1996) Lord Lloyd of Berwick described the powers then available to the police to stop and search vehicles and persons without any requirement for reasonable suspicion in order to prevent acts of Irish and international terrorism. Powers of this kind were introduced for the first time in section 81(1) of the 1994 Act, which inserted a new section 13A into the Prevention of Terrorism (Temporary Provisions) Act 1989 (“the 1989 Act”). An authorisation under this provision, which foreshadowed section 44(1) of the 2000 Act, did not require confirmation by the Secretary of State. Two years later, by section 1(1) of the Prevention of Terrorism (Additional Powers) Act 1996, Parliament inserted a new section 13B into the 1989 Act, which in turn foreshadowed section 44(2) of the 2000 Act.

Lord Lloyd explained (in para 10.6 of his report) that these powers were first introduced following the introduction of the perimeter checks in the City of London, known as the “ring of steel”, and mobile road checks in metropolitan areas, as a response to the bombing campaign between 1992 and 1994 in and around London. When section 13B was introduced in 1996 the confirmation procedure involving the Secretary of State was introduced for the first time.

Lord Lloyd described (in paras 10.14 and 10.15) how road checks, whether fixed (as in the City of London) or mobile, represented a key component of a strategy devised by the Terrorism and Allied Matters Committee of the Association of Chief Police Officers. The aim of the strategy was to have a range of policing options which could be brought to bear, in a co-ordinated way, with the purpose of increasing the chances of intercepting a terrorist en route to his target or while making his escape. Between February and August 1996 the police in London carried out searches of 9,700 drivers and passengers and 270 pedestrians pursuant to the new provisions.

Lord Lloyd went on to consider (at paras 10.19 to 10.23) whether powers of this kind should be retained in any permanent counter-terrorism legislation that might be enacted. He observed that a decision to give the police a power to stop and search at random was not to be taken lightly. On the other hand there was evidence that a number of terrorists had been intercepted by alert officers on patrol, and in at least one case a potential catastrophe had been averted. He said that there was also reason to believe that terrorists were deterred to some extent by the prospect of police road checks and the consequent risk that they would be intercepted. He commented (at para 10.22):

“As to usage, the figures show that the power has been used with great discretion. The requirement for authorisation by a very senior police officer is an important control mechanism. A number of requests have been turned down. That is reassuring. The police are very sensitive to the damage which would be done if there were ever any grounds for suspecting that the power was being used as anything other than a counter-terrorism measure.”

In the end Lord Lloyd recommended (at paras 10.24 and 10.25) that powers on the lines of the existing sections 13A and 13B should be retained in permanent legislation. He also recommended that the Secretary of State’s confirmation should be required in relation to each provision. Since PACE Code A applied the same standards to the terrorism provisions as to other statutory powers to stop and search, he saw no need for any additional safeguards.

We have been shown Chapter 9 of the consultation paper (Cm 4178, December 1998) which preceded the enactment of the 2000 Act, but it added little of substance to Lord Lloyd’s report other than to refer (at para 9.8) to the continuing threat to the United Kingdom and its interests from international and other forms of terrorism. The Government was not aware of any improper use which had been made of these powers, nor that their use had occasioned complaint.

Sections 44-47 of the 2000 Act came into force on 19^th February 2001, and we have been told that 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. Section 126 of the 2000 Act requires the Secretary of State to lay a report on the working of the Act before Parliament at least once in every 12 months. He invited Lord Carlile of Berriew QC to act as the independent reviewer. In paragraph 5.8 of his report on the operation of the Act in 2001 Lord Carlile briefly summarised the effect of section 44-47 and then said:

“No difficulties have been drawn to my attention in relation to the exercise of these powers. They were used extensively in 2001. I have examined the full list of such authorisations, which have been deployed in almost every police authority area in Great Britain. It would not be in the public interest to provide details of the reasons and events. I am satisfied that their use works well and is used to protect the public interest, institutions, and in the cause of public safety and the security of the state. I have been able to scrutinise the documentation used for Section 44 authorisations. It is designed to limit inconvenience to the general public, and to ensure that no authorisation is given without detailed and documented reasons.

So much for the general background. The evidence on these applications shows that at 1300 hours on 13^th August 2003 Assistant Commissioner Veness gave an authorisation under section 44(1) and (2) of the 2000 Act in relation to the whole of the Metropolitan Police district. This authorisation was confirmed the following day by the Secretary of State with no variations pursuant to section 46(4) of the Act, and it remained in effect until 2359 hours on 10^th September. At 1715 hours on 9^th September the same senior police officer gave a similar authorisation, for a similar period and covering the same area, which was confirmed by the Secretary of State on 11^th September.

In his witness statement Assistant Commissioner Veness sets out the reasons why he made the authorisation which is at the centre of these proceedings (namely the one which was in effect from 13^th August to the end of 10^th September 2003). Catherine Byrne, who is a senior civil servant at the Home Office, has produced a copy of the actual authorisation he made, and has explained why the Home Office confirmed it.

Mr Owen Davies QC, who appeared for the claimants, made it clear on their behalf that he would not be arguing that there was no general threat of terrorism against the United Kingdom. In the light of that concession it is not necessary to go into the reasons underlying the authorisation in any great detail. The Assistant Commissioner has particular responsibility for specialist operations, and in that capacity he has oversight of the police response to terrorism and allied matters within the Metropolitan Police district. He is the recipient on a daily basis of extensive briefings on terrorist methodology, trends and targeting, and is therefore aware of the prominence that US, Israeli, Jewish and UK targets hold amidst the intentions of international terrorists. This expression included US, Israeli and Jewish venues in this country. He said that it is clear from the intentions and actions of international terrorists that symbolic, economic and military venues present particular vulnerabilities. This phrase includes locations that may be relatively lightly defended but nevertheless provide the symbolic impact terrorists seek.

After giving examples of recent terrorists attacks in Indonesia, Russia, Iraq and India, which resulted in very extensive loss of life, Assistant Commissioner Veness said he was concerned to ensure that a range of defensive measures were deployed in the capital of the United Kingdom to deter, disrupt and detect terrorist activity. These measures applied to both the preparatory and attack phases undertaken by terrorists.

It was against this background that he considered it expedient to give the authorisation which is impugned in these proceedings. He gave ten reasons. In short, he considered both the terrorism threat level to Great Britain from dissident Irish Republican terrorists, and the terrorism threat level to British and American interests in the United Kingdom from international terrorism, to be substantial. After describing the continuing threats from both sources, he said that the Metropolitan Police Service (in partnership with the City of London Police and British Transport Police) was engaged in a proactive counter-terrorist policing operation which was reviewed on a weekly basis. He considered that an authorisation pursuant to section 44(1) and (2) provided a valuable tool to officers conducting targeted anti-terrorism patrols across the capital. He believed that such an authorisation was necessary and proportionate to the continuing high threats of acts of terrorism faced by the United Kingdom at this time, and London in particular. He was particularly conscious that the number and range of potential terrorism targets in London was numerous and geographically spread throughout the entire Metropolitan Police District.

In the light of the approach Mr Owen Davies adopted on behalf of his clients, we do not consider that it is necessary to recite any more of this evidence or any of the evidence given on behalf of the Secretary of State about the scale of the current threat. We also considered it unnecessary to receive certain secret evidence which the Secretary of State proffered on the basis that a special advocate would make submissions to us in relation to that material. It is sufficient to say that Ms Byrne observed that in almost all instances the intelligence available did not afford the luxury of complete information as to when, where, how and by whom possible terrorist action might occur. In most instances intelligence provided only an incomplete picture, and in almost all cases decisions of vital importance had to be taken on the basis of partial information.

Mr Davies’ first ground of challenge concerned both the Commissioner of Police for the Metropolis and the Home Secretary. He submitted that the 13^th August authorisation (and its successor) were ultra vires and unlawful. He argued that there were a number of clear indications that Parliament intended a section 44 authorisation to be given and confirmed only in response to an imminent terrorist threat to a specific location in respect of which normal police powers of stop and search were inadequate. He said that if it were sufficient for vague, general or speculative fears of terrorism to trigger section 44, an authorisation covering every police area in the United Kingdom on a long-term basis would be justified, and this could never have been Parliament’s intention.

We do not consider that section 44 should be interpreted in the way Mr Davies suggests. It is very noticeable that when Parliament first decided to introduce stop and search powers in the 1994 Act without any requirement for reasonable suspicion on the part of the police, it did so in two distinctly different ways. Section 81(1), which inserted the new section 13A into the 1989 Act (see para 16 above), created a power to give an authorisation to the effect that stop and search powers might be exercisable at any place within a police area (emphasis added) or at a specified locality in the area for a period not exceeding 28 days. Section 60(1) on the other hand was much more focused. If the statutory criteria were fulfilled (so that a senior police officer reasonably anticipated incidents involving serious violence in a locality in his area), a 24-hour authorisation might be made conferring stop and search powers at any place within that particular locality.

The distinct differences between the section 60 regime and the section 81 regime make it clear to us that Mr Davies’ submissions are not well-founded. Parliament clearly envisaged that an anti-terrorist authorisation might encompass any place within a police area, and not merely a specified locality, and this is now placed beyond doubt by the language of section 44(4) which expressly envisages an authorisation covering an entire police area or district. The word “expedient” is not a strong word. Its dictionary definitions include “advantageous: suitable to the circumstances of the case”. In our judgment Parliament intended to give the relevant senior police officer a broad discretion as to the width of the authorisation he might consider it appropriate to make, subject always to the need for the Secretary of State’s confirmation if the authorisation was to last for more than a comparatively short time. A need might crop up at any time for the targeted anti-terrorism patrols, the mobile road checks or the other elements of the anti-terrorism strategy, and it is understandable why, if there is a longstanding general threat, the police wished to be able to exercise these powers anywhere in the police district.

Mr Davies understandably relied on the muddled language of para 13 in the notes to guidance to Code A (see para 13 above). The sooner this note is altered the better, but we do not consider that it can possibly affect the interpretation of primary legislation.

We do not consider it necessary to dwell for very much longer on Mr Davies’s first submission. Once we are satisfied, as we are, that Parliament envisaged that an authorisation might cover the whole of a police area as a response to a general threat of terrorist activity on a substantial scale, then we have no hesitation in concluding that the judicial function in scrutinising a decision of this kind is necessarily a limited one. The assessment of risk to the public safety and to national security and the formulation of measures to safeguard the public and national security are primarily for the Government and Parliament on grounds of political legitimacy (see Home Secretary v Rehman [2001] UKHL at [62]; [2003] 1 AC 1534: compare R (ProLife) v BBC [2003] UKHL 23 at [76]; [2003] 2 WLR 1403). A senior police officer with major operational responsibility has made the authorisation, and the Secretary of State, who has wide sources of relevant expertise available to him and is answerable to Parliament, has confirmed it. In our judgment it was within their powers to make this authorisation and to confirm it, and there are no grounds on which we should set it aside as a matter of law.

Mr Davies’s second challenge, which is against the police alone, raises rather different considerations. We must set out its terms, and the evidence on the issue, before we analyse its legal merits.

The Substituted Grounds on which judicial review is sought are put in the following way:

(i)

The use of a section 44 authorisation to stop and search Mr Gillan and other peace protestors was contrary to the purpose of the 2000 Act and unlawful;

(ii)

From all the surrounding circumstances, it is clear that either

(a)

there was no guidance given to Metropolitan police officers (and in particular those officers who were policing the arms exhibition at the Excel Centre) as to how they should use their Section 44 and Section 45 powers, or

(b)

they were given guidance that was calculated to cause the officers to use these powers in an unlawful manner;

(iii)

Alternatively, the instructions given to Metropolitan police officers were inadequate or misleading as a matter of law.

It is said that the Metropolitan Police Commissioner had a duty to give appropriate instructions to the officers under his command in the exercise of powers that had the potential to cause unjustified and disproportionate interference with the human rights of citizens. Parliament never intended a Section 44 authorisation to be used arbitrarily against those engaged in peaceful protest. The essence of the claimants’ case under this head of challenge is articulated in these words:

“The officers involved were required when selecting the claimant for a stop and search to assess objectively the threat posed by those terrorist groups active in Great Britain (see paragraph 2.25 of Code A). It is submitted they exercised their discretion in a manner that thwarted the purpose of counter-terrorism legislation.”

The principal evidence initially relied on by Mr Gillan was contained in the first witness statement of Mona Arshi, a solicitor employed by Liberty, made on Wednesday 10^th September 2003. She said that Liberty were approached at the beginning of the week by protesters or would-be protesters against the arms fair who had been subjected to Section 44 “stop and search” procedures. Liberty had not previously been aware that section 44 powers were being implemented in respect of these protests. Its initial inquiry of the Metropolitan Police Press Office elicited the information that a section 44 authorisation was in force which was not specific to the arms fair, but no further details.

Liberty then sought further information from a commander in the police’s anti-terrorism branch. This inquiry eventually elicited a response the following day from solicitors acting for the police. They gave more details of the relevant authorisations. They said that the authorisation had been promulgated to the police via their intranet, and that the two authorisations were made as being necessary and proportionate to the continuing high threat from terrorism faced by the UK at this time, and London in particular. Their letter ended with these words:

“The guidance given to officers is that these powers should not be used to stop and search for reasons unconnected with terrorism.”

It appears that the police’s initial response to the storm of protest that surrounded their activities at the arms fair was to deny that section 44 “stop and search” procedures were being carried out there. Later it was acknowledged that section 44 had been utilised in certain cases. Ms Arshi’s witness statement avers, towards the end, that:

“Liberty firmly believes that this case raises important civil liberties and human rights issues. It appears that a very significant power that has been granted to the police for this specific purpose of combating acts of terrorism is being put to a much wider use for the purpose of curtailing the rights of individuals to peaceful protest. We are concerned not only with the impact this use has on actual protesters, but also about what we believe to be the intimidatory effect this is having on individuals who might have decided to protest but decide against doing so because of concerns about the powers that will be wrongfully applied against them.”

Commander Messenger responded to this evidence on behalf of the police. He had overall responsibility for setting the strategy for policing the arms fair. He said that all police officers coming on duty each day were given a briefing, during the course of which they were reminded of their powers to stop and search members of the public, “including their powers to stop and search pursuant to an Authorisation given under Section 44(1) and (2) of the Terrorism Act 2000”. This advice was reinforced by a Microsoft Powerpoint slide which simply said:

“S 44(1) and s 44(2) Powers under the Terrorism Act 2000 have been re-authorised throughout the MPD until … (insert date as appropriate).”

Following the protests which were made on 9^th September, a further slide was shown to police officers as part of their briefing the following day. This slide merely repeated verbatim the wording of para 2.25 of Code A (see para 14 above). Commander Messenger does not explain whether he gave any of this briefing himself, nor the terms in which the appropriateness of using any of these powers was explained to officers, otherwise than in the words contained in those two slides. He added that prior to the introduction of this slide, whilst officers were reminded of their powers under section 44, they were not reminded of the limited circumstances within which they could be exercised.

The court faces a considerable difficulty in this case because of the paucity of the evidence submitted by the police on this second issue. 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.

We have received a small amount of evidence about the interface between the police and those concerned with the arms fair protest. Mr Gillan’s own account of what happened was in these terms:

“… I was flagged down by two police officers, both of whom were male.

The first police officer informed me that he wanted to search me. I asked why, and was told that it was because there were lots of protesters around and the police were concerned they would cause trouble.

The same police officer asked me where I was going. I co-operated fully …

The first police officer then made a thorough search of my rucksack. The rucksack contained some spare clothes … a sandwich, a notepad and some papers. Certain of these papers were printouts from a protest website giving details of the demonstrations and where they were taking place, which I explained to the officer. He confiscated these documents after checking with base about whether they were aware of the website. I was permitted to write down the information I needed from these papers before they were taken from me …

I originally told the police officers that I would prefer not to have given them my details. They responded that I had a right not to do so but that my refusal to provide the information would arouse their suspicions and could lead to my arrest at which point they would be entitled to demand my details. I then agreed to provide them with my name and address.”

He also described how the second police officer was filling in Form 5090 while all this was going on, and how he accepted a copy of that form when it was offered to him after the search was over. His Form 5090 states:

“Grounds: Articles concerned with Terrorism.

Object: Terrorism Act s44. Stopped in area near the Excel Centre.

Stated he is involved in protests.”

Ms Quinton’s statement raises no new issue. She believes that the whole process took about 30 minutes (although her Form 5090 recorded 5 minutes). She felt so distressed and intimidated that she decided not to go back to the demonstration for the period of the arms fair.

In a third witness statement filed just before the hearing started Ms Arshi said that Liberty had been contacted by numerous other members of the public who had reported being stopped and searched under Section 44 of the 2000 Act. Of those who sent her their Forms 5090 six were stopped on 8^th September, 11 on 9^th September and 11 on 10^th September. She had also been personally contacted by over 20 other people who had been stopped under these powers, most of them during the course of the arms fair. Of the 28 Forms 5090, 25 were completed by officers of the Metropolitan Police. One officer stopped two different people. His notes were conspicuously more detailed than most of the others, and showed that he was aware of the significance of these powers.

Of the 14 forms completed by officers of the Metropolitan Police on 8^th and 9^th September, one states “Subject breached road block in place to secure sensitive area – high risk terrorist target defence systems trade fair (2) Intelligence indicates that London and Britain are in an imminent danger of terrorist attack”. Another states, “Section 44 of Terrorism Act in force due to DSCI conference at Excel Centre” but then continues “… and intelligence suggesting high level of disorder both by way of peaceful action and direct action – location has been identified as a main target for protesters”.

It is noticeable that a number of the 11 forms completed by the police on 10^th September, after the public furore occurred, are on the whole much more informative than the forms completed on the previous two days. One of them, for instance, recorded that the location of the docklands was at high risk from terrorist attack, while another stated that the subject had been stopped “near DSCI Exhibition (substantial amount of terrorist threats. Both dignitaries and warships)” A third said “stopped near vulnerable premises Excel defence exhibition, London City Airport”.

All the forms completed by officers of the Metropolitan Police referred to terrorism or section 44 of the 2000 Act as their grounds for the stop/search.

We have been shown the transcript of television interviews with a Deputy Assistant Commissioner of the Metropolitan Police on 10^th September 2003. This officer clearly understood the purpose of the section 44 powers and the need to ensure that they were not misused. The interview transcript contains the following passages:

“We’ve been using the power very sparingly on the outskirts of the conference centre here. The primary powers we’re using are the usual criminal powers and that’s what we’ve used to arrest 100 of the 102 people who’ve been arrested so far. But you’ve got to remember this is an area with Canary Wharf, with London City Airport and this big military exhibition behind me and that is a possible terrorist target and given the anniversary of 9/11, given the substantial threat against the capital at the moment, we will have to use Terrorism stop and search powers as appropriate.

I can’t comment on whether (the people stopped during the day) were stopped under that particular Act (Terrorism Act) because we’ve reminded our officers that the powers are to be used extremely sparingly and only in appropriate circumstances and that briefing has been given out yet again today.

If there are specific incidences of the misuse of that Act then obviously we will have to look into that. But we’ve issued the briefing to our officers today. We’re looking very closely at the stop and search returns to see if they have been used when they should not have been. If they have been we will look into it.

Here we are in the docklands … a target of terrorism in the past. London City Airport, the military exhibition is here. London is on a high state of alert. The anniversary of 9/11 is tomorrow. I think it would be remiss of us to fail to take into account the terrorist threat to such an event and to the whole of the capital at the moment.”

It is now well established that the courts have power to examine the way in which public servants like the police use discretionary powers given to them under a statutory regime. The wider the power, and the more it impinges on personal liberty, the more anxious the court will be to ensure that it is used to achieve the purpose for which it was granted and not for any ulterior or extraneous purpose. Mr Davies, not surprisingly, referred us to the principles laid down by Lord Reid in Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, 1030B-D:

“Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole … [I]f the Minister, by reason of having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy of the objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court.”

For “Minister” read “police” in the present context.

When Parliament enacted sections 44-47 of the 2000 Act, which provided that an authorisation, if confirmed, could give the police the power to stop and search people for articles of a kind that could be used in connection with terrorism throughout the whole of a police area, it did so because it considered that the threat created by terrorism was so great that the conventional powers conferred on the police by the first four sections of Part V of the Act (see para 4 above) would be inadequate in all circumstances to combat that threat. The reason why these powers were introduced and retained is clear from the passages in Lord Lloyd’s report to which we have referred in paras 16 to 20 above.

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.

We have reviewed the evidence in this case anxiously. It is obvious that the police were not at all well prepared for the storm of protest that understandably broke out on 9^th September. 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. Parliament has, however, judged that the contemporary threats posed by international terrorism and dissident Irish terrorism are such that as a people we should be content that the police should be able to stop and search us at will for articles that might be connected with terrorism.

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.

We are not, however, satisfied that the police's conduct on 9^th 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. We have already called attention to the need to revise Note 13 to PACE Code A, so that section 44 considerations are not mixed up with considerations relevant to section 60 of the 1994 Act (see para 13 above).

For these reasons we reject Mr Davies’s second head of challenge. If Mr Gillan or Ms Quinton wish to pursue private law remedies against the police they will no doubt give their solicitors appropriate instructions.

It is possible to deal with the remaining head of the claimants’ challenge more quickly. This is founded on the proposition that the section 44 authorisations and the exercise of powers under them constituted a disproportionate interference with the claimants’ rights under ECHR Articles 5, 8, 9, 10 and 11. The gist of this challenge, which was not developed in oral argument, was contained in the following paragraphs of the Substituted Grounds:

“Applying the Daly proportionality test to this case, it is accepted the legislative purpose, namely the prevention of acts of terrorism, can in appropriate circumstances be sufficiently important to justify the interference with fundamental rights. However, it is submitted that neither the authorisations nor the exercise of powers under them against peace protesters and at least one journalist are rationally connected to combating terrorism in that they were not in response to any specific threat but were rather in response to fears of terrorism triggered by the UK’s actions internationally (particularly in Northern Ireland and the Middle East). There was insufficient material before the Defendants to justify the giving or confirming of either authorisation.

Furthermore, the terms of the authorisations (ie for the maximum permissible duration of 28 days and applicable throughout the Metropolitan Police District) and the interference with the Convention rights of citizens caused by stopping and searching under the authorisations were significantly more than necessary to accomplish the legislative purpose. It cannot be proportionate to allow the use of an emergency power as if it were a normal power available to officers as part of day-to-day policing on the streets of London.”

If there were any question of the police using these powers as part of day-to-day policing on the streets of London there would be considerable force in this submission.

We are, however, concerned with a threat greater than any that this country in general, and its capital city in particular, has ever faced except in time of war. 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. We consider that this provided the necessary justification for any violation of the claimant’s rights under ECHR Articles 8(1), 9(1), 10(1) or 11(1) that might otherwise be established. The exercise and use of the power was proportionate to the gravity of the risk. It was also prescribed by law. Mr Davies did not press his clients’ case under Article 5. There is therefore no need to say more than that we are not satisfied that rights conferred by that Article were breached.

There is, however, one matter we must mention before ending this judgment. Most people realise the contemporary risk they face from terrorism. Their newspapers and their television screens have shown them the horrors perpetrated in different parts of the world in recent years. They tolerate the inconvenience they suffer when they are searched and their possessions x-rayed when they enter buildings. They will be equally tolerant if the police make it clear that they need to stop/search people and vehicles either on a 100% basis or on a random basis away from such buildings because of the threat from terrorism.

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 (see para 7 above), 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.