R (Roberts) v Commissioner of Police of the Metropolis and another (Liberty intervening)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lady Justice Rafferty,Lady Justice Macur |
| Judgment Date | 04 February 2014 |
| Neutral Citation | [2014] EWCA Civ 69 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 February 2014 |
| Docket Number | Case No: C1/2012/2575 + 2575(A) |
[2014] EWCA Civ 69
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION, DIVISIONAL COURT
MOSES LJ AND EADY J
CO12660/2010
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay, Vice President of the Court of Appeal, Civil Division
Lady Justice Rafferty
and
Lady Justice Macur
Case No: C1/2012/2575 + 2575(A)
Mr Hugh Southey QC and Ms Aileen McColgan (instructed by Bhatt Murphy Solicitors) for the Appellant
Mr Jeremy Johnson QC and Ms Georgina Wolfe (instructed by Weightmans LLP) for the Respondent
Mr James Eadie QC and Mr Ben Jaffey (instructed by Treasury Solicitors) for the Secretary of State for the Home Department
Mr Alex Bailin QC and Ms Alison MacdonaldandMs Katherine Hardcastle(for Liberty, the Intervener)
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.
Section 60
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:
"(1) If a police officer of or above the rank of inspector reasonably believes–
(a) that incidents involving serious violence may take place in any locality in his police area, and that it is expedient to give an authorisation under this section to prevent their occurrence,
(aa) that–
(i) an incident involving serious violence has taken place in England and Wales in his police area;
(ii) a dangerous instrument or offensive weapon used in the incident is being carried in any locality in his police area by a person; and
(iii) it is expedient to give an authorisation under this section to find the instrument or weapon; or
(b) that persons are carrying dangerous instruments or offensive weapons in any locality in his police area without good reason,
he may give an authorisation that the powers conferred by this section are to be exercisable at any place within that locality for a specified period not exceeding 24 hours.
…
(3) If it appears to an officer of or above the rank of superintendent that it is expedient to do so, having regard to the offences which have, or are reasonably suspected to have, been committed in connection with any activity falling within the authorisation, he may direct that the authorisation shall continue in being for a further 24 hours.
(3A) If an inspector gives an authorisation under subsection (1) he must, as soon as it is practicable to do so, cause an officer of or above the rank of superintendent to be informed.
(4) This section confers on any constable in uniform the power–
(a) to stop any pedestrian and search him or anything carried by him for offensive weapons or dangerous instruments;
(b) to stop any vehicle and search the vehicle, its driver and any passenger for offensive weapons or dangerous instruments.
….
(5) A constable may, in the exercise of the powers conferred by subsection (4) above, stop any person or vehicle and make any search he thinks fit whether or not he has any grounds for suspecting that the person or vehicle is carrying weapons or articles of that kind."
"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 …".
The facts
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 decision of the Divisional Court
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):
"In my view, the question of the arbitrary nature of the power conferred by section 60 ought properly to be considered in the context of Article 8 and not Article 5. In the instant case the claimant was not confined, nor required to move to a police station, handcuffed or restrained. This claimant was only restrained when she sought to resist the exercise of the police power under section 60. Had she not sought to escape, then the detention would have been brief, taking up only such time as was necessary to search for knives or other offensive weapons in her handbag or outer clothing. … I conclude that there was no deprivation of liberty within the autonomous meaning of Article 5.1."
Turning to compatibility with Article 8 he said (at paragraph 42):
"… authority given under section 60 is in accordance with the law and not arbitrary. The power conferred by section 60 to give authorisation is not unfettered. It is circumscribed by the provisions of section 60 and Code A, and subject to the control of the courts, as this very case demonstrates."
He later (at paragraph 45) emphasised the margin of appreciation, adding:
"To those citizens in the particular wards in Haringey at risk from serious gang violence, the possibility of being subjected to a random search must seem a justifiable price to pay for greater security and protection from indiscriminate use of weapons."
Lord Justice Moses then went on to consider the challenge pursuant to Article 14 when read with Article 8. He said (at paragraph 47):
"There is no basis whatever for an assertion that the power of stop and search exercised pursuant to the section 60 authorisation in this case … was exercised in a racially discriminatory way or on the basis of racial discrimination … The challenge is to section 60, the legislation itself. There is nothing in the legislation which itself is racially discriminatory."
He proceeded to consider whether the legislation was...
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