R (Gillan) v Commissioner of Police of the Metropolis and Another; R (Quinton) v Same

It is an old and cherished tradition of our country that everyone should be free to go about their business in the streets of the land, confident that they will not be stopped and searched by the police unless reasonably suspected of having committed a criminal offence. So jealously has this tradition been guarded that it has almost become a constitutional principle. But it is not an absolute rule. There are, and have for some years been, statutory exceptions to it. These appeals concern an exception now found in sections 44-47 of the Terrorism Act 2000 ("the 2000 Act"). The appellants challenge the use made of these sections and, in the last resort, the sections themselves. Since any departure from the ordinary rule calls for careful scrutiny, their challenge raises issues of general importance.

The first appellant, Mr Gillan, was a PhD student studying in Sheffield when, on 9 September 2003, he came to London to protest peacefully against an arms fair being held at the ExCel Centre, Docklands, in east London. He was riding his bicycle near the Centre when he was stopped by two male police officers. They searched him and his rucksack and found nothing incriminating. They gave him a copy of the Stop/Search Form 5090 which recorded that he was stopped and searched under section 44 of the 2000 Act. The search was said to be for "Articles concerned in terrorism". The whole incident lasted about twenty minutes.

The second appellant, Ms Quinton, was an accredited freelance journalist and went to the Centre on 9 September 2003 to film the protests taking place against the arms fair. She was stopped by a female police officer near the Centre and asked to explain why she had appeared out of some bushes. Ms Quinton was wearing a photographer's jacket and carrying a small bag and a video camera. She explained she was a journalist and produced her press passes. The officer searched her, found nothing incriminating, and gave her a copy of Form 5090. This recorded that the object and grounds of the search were "P.O.T.A.", which was no doubt intended to be a reference to the 2000 Act. The form showed the length of the search as five minutes, but Ms Quinton estimated that it lasted for thirty.

I. The legislation

The 2000 Act, enacted in July 2000, was a substantial measure intended to overhaul, modernise and strengthen the law relating to the growing problem of terrorism. It supplemented existing criminal law statutes such as the Explosive Substances Act 1883 and the Aviation and Maritime Security Act 1990. It replaced some earlier statutes such as the Prevention of Terrorism (Temporary Provisions) Act 1989 as amended. It contained, in section 1, a far-reaching definition of terrorism:

"(1) In this Act 'terrorism' means the use or threat of action where—

• (a) the action falls within subsection (2),

• (b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and

• (c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.

(2) Action falls within this subsection if it—

• (a) involves serious violence against a person,

• (b) involves serious damage to property,

• (c) endangers a person's life, other than that of the person committing the action,

• (d) creates a serious risk to the health or safety of the public or a section of the public, or

• (e) is designed seriously to interfere with or seriously to disrupt an electronic system.

(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.

(4) In this section—

• (a) 'action' includes action outside the United Kingdom,

• (b) a reference to any person or to property is a reference to any person, or to property, wherever situated,

• (c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and

• (d) 'the government' means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.

(5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation."

In Part V of the Act, which contains the provisions at issue in these appeals, "terrorist" is defined, in section 40, to mean a person who has committed an offence under certain specified sections of the Act, or who "is or has been concerned in the commission, preparation or instigation of acts of terrorism".

Sections 41-43 of the Act, all under the sub-heading "Suspected terrorists", provide for arrest without warrant, the search of premises and the search of persons by a constable. In each case there must be reasonable suspicion that the person subject to the arrest or search is a terrorist. Sections 44-47, under the sub-heading "Power to stop and search", are not subject to that requirement. These sections provide for a three stage procedure.

The first stage is that of authorisation, which is governed by section 44. Omitting amendments made in 2001 which do not bear on the issue before the House, the section provides:

"(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 carried 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—

• (a) where the specified area or place is the whole or part of a police area outside Northern Ireland other than one mentioned in paragraph (b) or (c), by a police officer for the area who is of at least the rank of assistant chief constable;

• (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;

• (c) where the specified area or place is the whole or part of the City of London, by a police officer for the City who is of at least the rank of commander in the City of London police force;

• (d) where the specified area or place is the whole or part of Northern Ireland, by a [member of the Police Service of Northern Ireland] who is of at least the rank of assistant chief constable.

(5) If an authorisation is given orally, the person giving it shall confirm it in writing as soon as is reasonably practicable."

By section 46(1)-(2), an authorisation takes effect when given and expires when it is expressed to expire, but may not be for longer than 28 days.

The second stage is confirmation, governed by section 46(3)-(7). The giver of an authorisation must inform the Secretary of State as soon as is reasonably practicable. If the Secretary of State does not confirm the authorisation within 48 hours of the time when it was given, it then ceases to have effect (without invalidating anything done during the 48-hour period). When confirming an authorisation the Secretary of State may substitute an earlier, but not a later, time of expiry. He may cancel an authorisation with effect from a specified time. Where an authorisation is duly renewed, the same confirmation procedure applies. The Secretary of State may not alter the geographical coverage of an authorisation, but may no doubt withhold his confirmation if he considers the area covered to be too wide.

The third stage involves the exercise of the stop and search power, which is governed by section 45. This 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 connectionwith 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, an 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...