R (Roberts) v Commissioner of Police of the Metropolis and another (Liberty intervening)
| Jurisdiction | England & Wales |
| Judge | Lord Clarke,Lord Hodge,Lord Toulson,Lady Hale,Lord Reed |
| Judgment Date | 17 December 2015 |
| Neutral Citation | [2015] UKSC 79 |
| Date | 17 December 2015 |
| Court | Supreme Court |
[2015] UKSC 79
Lady Hale, Deputy President
Lord Clarke
Lord Reed
Lord Toulson
Lord Hodge
Hugh Southey QC
Ruth Brander (Instructed by Bhatt Murphy Solicitors)
Jeremy Johnson QC
Georgina Wolfe (Instructed by Weightmans LLP)
Respondent/Interested Party
Lord Keen QC
James Eadie QC
Ben Jaffey (Instructed by The Government Legal Department)
Intervener (Liberty)
Alex Bailin QC
Iain Steele
Katherine Hardcastle (Instructed by Liberty)
Heard on 20 and 21 October 2015
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. We have unhappy memories of police powers to stop and search "suspected persons" even with reasonable grounds. We are even more suspicious of police powers to stop and search without having reasonable grounds to suspect that we are committing or going to commit a crime.
Nevertheless, there are a few instances in which our Parliament has decided that such "suspicionless" stop and search powers are necessary for the protection of the public from terrorism or serious crime. The court can examine whether such a law is itself compatible with the rights set out in Schedule 1 to the Human Rights Act 1998. However, if it finds that it is not, the most the court can do is to make a declaration of incompatibility under section 4 of the Human Rights Act, leaving it to Parliament to decide what, if anything, to do about it. This is the primary remedy sought by Mr Southey QC on behalf of the claimant in this case. But, under section 6 of the Human Rights Act, even a compatible law has to be operated compatibly with the Convention rights in any individual case. There are many laws which are capable of being operated both compatibly and incompatibly, depending upon the facts of the particular case. The compatibility of the law itself has therefore to be judged in conjunction with the duty of the police to operate it in a compatible manner.
The law in question is contained in section 60 of the Criminal Justice and Public Order Act 1994. It is now common ground that the power of "suspicionless" stop and search which it contains is an interference with the right to respect for private life, protected by article 8 of the European Convention on Human Rights, although perhaps not at the gravest end of such interferences. It is also common ground that the power pursues one of the legitimate aims which is capable of justifying such interferences under article 8(2), namely the prevention of disorder or crime. The argument is about whether it is "in accordance with the law" as is also required by article 8(2). In one sense, of course it is, because it is contained in an Act of the United Kingdom Parliament. But the Convention concept of legality entails more than mere compliance with the domestic law. It requires that the law be compatible with the rule of law. This means that it must be sufficiently accessible and foreseeable for the individual to regulate his conduct accordingly. More importantly in this case, there must be sufficient safeguards against the risk that it will be used in an arbitrary or discriminatory manner. As Lord Kerr put it in Beghal v Director of Public Prosecutions (Secretary of State for the Home Department and others intervening) [2015] UKSC 49; [2015] 3 WLR 344, at para 93, "The opportunity to exercise a coercive power in an arbitrary or discriminatory fashion is antithetical to its legality" in this sense.
Section 60 is directed towards the risk of violence involving knives and other offensive weapons in a particular locality at a particular time. It provides:
"(l) 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 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 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 same meaning as in section 1(9) of the Police and Criminal Evidence Act 1984 ("PACE"), 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". If an incident of serious violence has already taken place (as contemplated by section 60(1)(aa)), it includes "any article used in the incident to cause or threaten injury to any person or otherwise to intimidate …".
Thus it will be seen that the individual police officer's powers in section 60(4) and (5) depend upon a general authorisation (a) given by an officer of the rank of inspector or above, (b) for a period of up to 24 hours, although renewable for one further period of 24 hours, (c) within a particular locality, and (d) where the senior police officer reasonably believes that one or more of the three grounds set out in section 60(1) exists. Section 60(5) makes it clear that the individual police officer operating under such an authorisation does not have to have any grounds for suspecting that the person or vehicle stopped and searched is carrying offensive weapons or dangerous instruments. But section 60(4) makes it clear that his or her purpose must be to search for such things.
The exercise of the powers set out in section 60 is subject to a number of safeguards and restrictions, including those contained in section 2 of PACE and in the Code of Practice for the exercise of such powers, issued under section 66 of that Act. In the Metropolitan Police area, it is also subject to the Metropolitan Police Service's published Standard Operating Procedures, both on the general Principles for Stop and Search and on Section 60 of the Criminal Justice and Public Order Act 1994 in particular. It is well-established that failure to comply with published policy will render the exercise of compulsory powers which interfere with individual freedom unlawful: R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245. It is also likely to expose the individual officer to disciplinary action. It will therefore be necessary to return to these additional constraints in some detail later.
The events which gave rise to these proceedings took place on 9 September 2010. There was then a significant problem of gang related violence in the London Borough of Haringey, resulting from tensions between two rival gangs, and the risk that gangs from outside the borough would come to their aid. Between 1 and 9 September there were many police intelligence reports relating to violent crime and the use of firearms, knives and other offensive weapons. There was an attempted murder and a stabbing on 4 September and another stabbing on 5 September. On 8 September there were intelligence reports about the use or storage or movement of firearms. These indicated a risk of further violence on the afternoon, evening and night of 9 September. In the morning of 9 September, Superintendent Barclay, Superintendent (Operations) in the Borough of Haringey, formed the belief (under section 60(1)(a)) that further incidents of serious violence were likely to take place that day and also (under section 60(1)(aa)) that people would be travelling to Haringey in possession of weapons that had been used in the incidents which had already taken place.
Accordingly at 11.20 am he completed Form 5096, which constituted the authorisation. This authorised...
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