Roberts v The Commissioner of Police of the Metropolis and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moses,Mr Justice Eady:,Moses LJ |
| Judgment Date | 17 July 2012 |
| Neutral Citation | [2012] EWHC 1977 (Admin) |
| Docket Number | Case No: CO/12660/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 July 2012 |
[2012] EWHC 1977 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moses
Mr Justice Eady
Case No: CO/12660/2010
Mr Hugh Southey QC (instructed by Bhatt Murphy Solicitors) for the Applicant
Mr Jeremy Johnson QC and Ms Georgina Wolfe (instructed by Weightmans Llp) for the Respondent and Mr James Eadie QC and Mr Ben Jaffey for The Secretary of State for the Home Department ( Interested Party)
Hearing dates: 3 rd-4 th May 2012
The claimant was on a 149 bus on 9 September 2010 when a ticket inspector discovered that her Oyster card had insufficient funds to pay her fare. She was asked to leave the bus. She then gave a false name and address to the inspector, dishonestly stating she did not have any identification with her.
When PC Reid, who arrived at the request of a police community support officer, asked her for a form of identification, she repeated that she did not have any.
The place where she had been asked to leave the bus and was being questioned was within the borough of Haringey. About two hours before, Superintendent Barclay had granted an authority under s.60 of the Criminal Justice and Public Order Act 1994 for the period from 1.00 p.m. until 6.00 a.m. the following day in respect of the borough of Haringey, with the exception of six wards. This authorised a constable in uniform to stop any pedestrian and search him or anything carried by him for offensive weapons or dangerous instruments. There had in that area been a significant problem with gang-related violence, particularly between two rival gangs known as the Wood Green Mob and the Grey Gang. Twenty separate intelligence reports had been received relating to violent crime and the use of firearms, knives and other offensive weapons. Five days before, there had been an attempted murder and a stabbing, followed by a serious assault the day after. The day before, five more intelligence reports had been received, mostly relating to the use and storage of firearms. Superintendent Barclay feared that further incidents of serious violence were likely to take place in that area in the afternoon, evening and night, and in particular, that individuals would travel within the area in possession of weapons to be used in serious, violent incidents.
PC Reid, aware of the s.60 authority, decided to deploy it to search the claimant. The claimant appeared to her to be nervous, and kept a tight hold of her bag, as if she was trying to conceal something. Accordingly, PC Reid explained her powers to the claimant and provided the claimant with the details required under s.2 of the Police and Criminal Evidence 1984 Act. The claimant would not co-operate, resisted the search, and walked away. PC Reid explained that she would be detained for the purpose of a search but she again walked off. She was then handcuffed, other officers came to PC Reid's assistance, and the claimant was taken to the ground, still holding on to her bag. The bag was searched, and the claimant finally gave her correct name and address. Bank cards in the claimant's name, her maiden name and her son's name were discovered, although it was not suggested they were held unlawfully or for unlawful purposes; she was arrested on suspicion of handling stolen goods and taken to Tottenham Police Station.
The claimant, who is of good character, is 38 years-old. A caution she received following this incident has been quashed. She is married with a grown-up son and is a special needs assistant working with children and young adults with learning disabilities. This, she asserts, explains her reluctance to be searched in public; she preferred to be searched at a police station and did not wish to be searched in the street since she was concerned that other people in the area might witness the search.
She now seeks relief, the terms of which are important in this application, for judicial review. She seeks a declaration pursuant to s.4 of the Human Rights Act 1998 that s.60 of the Criminal Justice and Public Order Act 1994 is incompatible with Articles 5 and/or 8 of the European Convention on Human Rights. Further, she seeks a declaration that the decision taken on 9 September 2010 to search her was unlawful.
Whilst the remedy which the claimant seeks is confined to references to Articles 5 and 8, the process leading up to the hearing by this court has, to a substantial extent, focussed on a large amount of material relevant to a related but different issue. It is the claimant's concern, as a woman from African-Caribbean heritage, that there is a disproportionate use of searches under s.60 involving "black Londoners" (the description used on her behalf in her skeleton argument) in breach of Article 14 of the Convention. Much material has been provided to the Court attempting to show, by statistics, a disproportionate use of s.60 against black minority ethnic groups. That concern, which is, of course, of great importance, has prompted Liberty to intervene by way of written submissions and triggered an attempt by the Commission for Equality and Human Rights to join in that intervention.
Section 60 of the 1994 Act provides:—
"(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 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. …
(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.
[…]
(8) A person who fails
(a) to stop, or to stop a vehicle; or
(b) to remove an item worn by him,
when required to do so by a constable in the exercise of his powers under this section shall be liable on summary conviction to imprisonment for a term not exceeding one month or to a fine not exceeding level 3 on the standard scale or both."
The feature of those provisions which is particularly significant in this case is that a constable, exercising his powers under s.60(4), may conduct a random search within the limits of the time and place specified in the authorisation under s.60(1) and provided that the search is for an offensive weapon or dangerous instrument. This power of random search, uninhibited by the requirement of any reasonable suspicion, lies at the heart of this case. The power is to be contrasted with what Lord Brown has described as "our traditional understanding of the limits of police power" ( Gillan and Quinton v Commissioner of Police of the Metropolis) [2006] 2 AC 307 [74]) of which the epitome is the power to search on reasonable grounds for suspicion conferred by s.1 of the Police and Criminal Evidence Act 1984.
Article 5
Article 5 of the Convention provides:—
"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
b. the lawful…detention of a person…in order to secure the fulfilment of any obligation prescribed by law."
The claimant contends that s.60 is incompatible with Article 5 because a stop and search under s.60 amounts to a deprivation of liberty under Article 5. Section 60 is incompatible with Article 5 because it involves a deprivation of liberty which is not "in accordance with the procedure prescribed by law".
The first question is whether the search in the instant case amounted to a deprivation of liberty. Resolution of this question depends upon all the facts and circumstances of the particular case: the type of search, its duration, the manner in which it was conducted and its effect (see, e.g., HL v United Kingdom [2004] 40 EHRR 761 paragraph 89, cited by Lord Bingham in Gillan and Quinton [25]). Mr Gillan was stopped pursuant to powers conferred by s.44 of the Terrorism Act 2000 whilst riding his bicycle and he and his rucksack were searched; the search lasted...
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