W, R (on the application of) v Chief Constable of Kent Police

MR JUSTICE RODERICK EVANS: This is an application for permission to apply for judicial review which is being held pursuant to the directions of Mr Justice Cranston given on 16 February 2009. He did not direct that the hearing should be anything other than an ex parte hearing. However Mr Perks has appeared on behalf of the respondent. We are grateful to him for the assistance he has given us.

Having considered the case on the papers, Mr Justice Cranston directed an oral hearing be held to consider not only the question of permission but whether the case or any part of it should be transferred to the County Court under CPR 15.20. When giving his direction, Mr Justice Cranston identified potential factors in favour of transfer, namely, the presence of factual disputes and the claim for damages by each of the three claimants. Given what he referred to as "the wider public interest", he afforded the claimant the opportunity to argue against transfer.

The first two claimants - both of whom are children aged 11 - and the third claimant David Morris seek permission to challenge their stop-and-searches under Section 1 of the Police and Criminal Evidence Act 1984 ("PACE") on 5 and 6 August 2008. The stop-and-searches took place during a protest held between 3 and 11 August 2008 against the planned development of a coal-fired power station in Kent. The protesters held a Climate Change Camp. The focus was environmental. Environmental protests and other activities were also held at the camp. The police had received intelligence that some protesters were intent on causing damage to the power station. A website connected to the protest stated that "the single aim" of some protesters was to shut down "a climate criminal".

In the light of these and other related concerns about the possible causing of criminal damage, the police officer in charge of the policing operation issued a document setting out the approach that the police would adopt to stop-and-searches in a Section 1 case. The relevant part reads as follows:

The submission of each of the three claimants is that in the case of each of them there was no reasonable suspicion to carry out the stop-and-search and that their experiences, the approach of the police to them and the general approach of the police to the stop-and-search of other people on the ground, show that there was a policy to stop-and-search those attending the camp which went beyond the legitimate bounds of a Section 1 stop-and-search. People entering and leaving the camp were searched. On arrival at the camp pedestrians and cars were stopped and directed to a car park where searches were carried out. The policy has been referred to as a check-point and ticket policy. The resultant queues were lengthy, and we have seen photographs of the queues. It is said that sometimes it took between one and two hours longer to reach the camp than it otherwise would have done because of the need to pass through a check-point and be searched.

Those who advanced towards the camp without being searched were often stopped and sent back to be searched. On completion of a negative search, the attenders were given a police search lift-off ticket which allowed them - within a set time - to advance to the camp without the need for further search. When the first child claimant was searched, the police officer involved in the search said that he would be searched because he was going to the camp. And neither of the tickets given to the child claimants has any reason-for-search detail which is specific to the claimant: one simply refers to the operation then being undertaken by the police as Oasis/Kent; another refers to the letter D which represents Section 60 of the 1984 Act, a more general power of search which was not in fact in force on the day of the searches which are the subject matter of this application.

The claimant David Morris was stopped on four occasions and searched on two occasions. It is his case that the two occasions upon which he was not searched are as important, if not more important, than those upon which he was searched. On the first occasion that he was stopped he challenged the police right to search him. He was told that "everybody" was being searched "because this is what we are doing". On the second occasion when he challenged the police right to search him he was told that the police had no suspicion against him personally, that some people at the camp had committed criminal activities and that PACE allowed searches of the kind the police were carrying out.

Following further conversation a police inspector was contacted. He said he would have to speak to "someone higher". In due course this inspector said that he had spoken to a senior person and that he was "exercising my discretion to allow you through". Mr Morris was then not searched. He described the police having a general policy, without, in his view, there being any reasonable suspicion in relation to those who objected to the search.

Ground 1 of the claim is that the stop-and-searches of each of the claimants was unlawful, and that despite the policy announced by the police there was in reality on the ground a blanket policy of searching individuals without there being reasonable suspicion in the case of the individual. Ground 2 is that these searches violated the claimants' rights under Article 10 and Article 11 of the European Convention on Human Rights (ECHR) and, as a consequence, there is a claim for damages.

The defendant submits that although the claimants allege there was some covert policy to carry out searches beyond the lawful confines of Section 1 of PACE, they are unable to point to any decision instigating such a policy and that propounding a case that such a policy was instigated is tantamount to suggesting that the announced policy of the police officer who was in charge of policing the protest was announced with the intention of deceiving. In the absence of a decision to pursue such a covert policy, this case - it is submitted on behalf of the respondent - is no more than a challenge to the decision of individual officers in an operational situation, and the appropriate method of seeking a remedy is to pursue a claim in the County Court; the more so, it is submitted, as damages are sought.

The defendant goes on to submit that the factual disputes which will need resolution in this case make judicial review an inappropriate proceeding. Moreover it is not necessary, it is submitted, to consider Articles 10 and 11 at this permission stage. Even if the stop-and-searches were unlawful, a delay of an hour or so would not amount to a breach of the Article.

In my view, ground 1 involved matters which go beyond cases of the individual claimants and that matters of wider police activity and public importance arise. It is difficult to gauge the compass of any factual dispute that might arise in this case. Evidence has not been filed on behalf of the respondent, and it does not appear to be denied that a check-point system was employed for stopping and searching pedestrians or that the stopping and searching was widespread.

There appears to be a potential issue flagged up on behalf of the respondent as to the state of mind of the individual officers involved in searching the claimants. In paragraph 6 of the grounds of resistance it is stated:

We shall have to wait and see whether that assumption is correct. Any such assertion made by the officers will have to deal with the forms which they filled in and the reasons - what the claimants say are lack of reasons - set out in them.

In any event, for my part, I am satisfied that the court has all the power it needs to hear oral evidence in a judicial review proceeding and to order cross-examination of any witnesses it needs to hear from to enable it to resolve what I anticipate will be very limited disputes of facts.

Ground 2 is also, in my view, arguable. I would give permission on both those grounds.

LORD JUSTICE KEENE: I agree. It is clear that these proceedings raise issues of some general public importance. Large demonstrations are a feature of our democracy and the proper policing of them is itself a matter of some public importance. I can see that the claimants had been selected as suitable test cases despite their individual claims for damages. Issues therefore of public law do seem to arise.

Are these matters suitable for judicial review? The respondent, my Lord has indicated, says not because of potential disputes of fact, particularly as to whether searches were being carried out on this occasion as a matter of routine or as a matter of individual judgment.

To my mind, the search forms in respect of these claimants - filled in by the police officers as required under the Police and Criminal Evidence Act 1984 - are important as to whether there really is a genuine dispute over the nature of the stop-and-searches which were conducted. The form in the case of the claimant T, in specifying the grounds for his search, simply states "Oasis/Kent", a reference to the name of the police operation. The form in respect of claimant E merely states "negative" in respect of grounds, and there was a reference in fact to a code which is to Section 60 of the Criminal Justice (Public Order) Act [1994], an authorisation which was not given until 7 August.

We have no statements from the relevant police officers. Consequently as things stand, I am unable to see that there is evidence of a real dispute as to fact.

In all the circumstances it seems to me that this matter is appropriate to be determined by way of judicial review. What may have to happen in due course in respect of damages - if the claimants are successful - can be dealt with when this matter is being determined.

I, too, therefore would grant permission to seek judicial review in the terms my Lord has indicted. It is a matter which ought really to be dealt with by a Divisional Court rather than by a single judge.

Do we have a time estimate yet? I suppose it is too difficult to give one, is it not, until we see what the shape of the evidence is likely to be particularly from the respondent?

MR BAILIN: I would have thought so. I was thinking a day if there was not cross-examination and a day-and-a-half if there was, something like that.

MR PERKS: I can say two days.

LORD JUSTICE KEENE: I think at the moment we can only say one to two days. That time estimate will have to be refined as the case progresses. I would ask both sides to communicate with the List Office in the Administrative Court to make sure that they are kept up to date fully as to any changes in that time estimate.

MR JUSTICE RODERICK EVANS: Should there be a timetable for serving of evidence?

MR PERKS: There certainly should be, my Lord, yes.

LORD JUSTICE KEENE: I think the ball is in your court, Mr Perks, is it not?

MR PERKS: Yes. We can agree that possibly straightaway outside. I am sure we can agree a timetable.

LORD JUSTICE KEENE: We would like to put it in our order if we can deal with it here and now. For what would you be asking?

MR PERKS: Can I check? (Pause) 28 days.

LORD JUSTICE KEENE: What do you want to say about that, Mr Bailin?

MR BAILIN: I am content with that. May we have the same time to respond?

LORD JUSTICE KEENE: A further 28 days?

MR BAILIN: Yes. Since we are not sure what the evidence - - - - -

LORD JUSTICE KEENE: I realise that. I am just anxious that this matter should be dealt with without very considerable delay particularly if it is, as you say, of some public importance. I think the respondent can have 28 days to respond. (Pause) We are going to cut you down a bit; 21 days for anything further from the claimants in response to the evidence from the respondent.

MR JUSTICE RODERICK EVANS: Should there be a note to the court - agreed if possible - about who should be attending for cross-examination if anybody?

MR BAILIN: Yes.

LORD JUSTICE KEENE: Yes, if you would. Once you can see the shape of play and decide what things are then keep the court informed about that, would you? Costs of today, costs in the case?

MR BAILIN: In the case.

LORD JUSTICE KEENE: Are you both happy with that? Costs in the case. Is there anything else?