Stop and Search in UK Law

Secondly and, in our view crucially, the distinction between this case and Gillan is one of substance, turning on the starkly different context of the powers in issue. In our judgment port and border control is very different from a power to stop and search, potentially exercisable anywhere in the jurisdiction. Conclusions as to the arbitrariness of the latter do not readily, still less necessarily, translate into conclusions as to the former.

Eighthly, a renewed authorisation is subject to the same confirmation procedure. Ninthly, the powers conferred on a constable by an authorisation under sections 44( 1) or (2) may only be exercised to search for articles of a kind which could be used in connection with terrorism. Lastly, it is clear that any misuse of the power to authorise or confirm or search will expose the authorising officer, the Secretary of State or the constable, as the case may be, to corrective legal action.

The exercise of power by public officials, as it affects members of the public, must be governed by clear and publicly-accessible rules of law. The public must not be vulnerable to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than that for which the power was conferred. This is what, in this context, is meant by arbitrariness, which is the antithesis of legality.

In exercising the power the constable is not free to act arbitrarily, and will be open to civil suit if he does. This cannot, realistically, be interpreted as a warrant to stop and search people who are obviously not terrorist suspects, which would be futile and time-wasting. It is to ensure that a constable is not deterred from stopping and searching a person whom he does suspect as a potential terrorist by the fear that he could not show reasonable grounds for his suspicion.

But I cannot accept that, thus used, they can be impugned either as arbitrary or as "inherently and systematically discriminatory" (Lord Steyn's characterisation of the Prague operation) simply because they are used selectively to target those regarded by the police as most likely to be carrying terrorist connected articles, even if this leads, as usually it will, to the deployment of this power against a higher proportion of people from one ethnic group than another.

In this country, we are wary of giving too much power to the police. We believe that we should be free to be out and about in public without being subjected to compulsory powers of the police, at least unless and until they have reasonable grounds to suspect that we are up to no good. We have so far resisted suggestions that we should all have to carry identity cards that the police can demand to see whenever they want.

There is an important issue as to whether the legislation is being used in a racially discriminatory manner. If a court permitted itself to reach a conclusion on the basis of challenged and disputed statistics it might only exacerbate a fraught and sensitive subject.