Stopping Searching under Control Orders
| Author | Ben Middleton |
| Published date | 01 December 2009 |
| Date | 01 December 2009 |
| DOI | http://doi.org/10.1350/jcla.2009.73.6.598 |
| Subject Matter | Court of Appeal (Civil Division) |
Court of Appeal (Civil Division)
Stopping Searching under Control Orders
Secretary of State for the Home Department vGG; Secretary of State for the
Home Department v N [2009] EWCA Civ 786
Keywords Stop and search; Liberty; Statutory interpretation;
Terrorism
G was subjected to a control order pursuant to s. 2 of the Prevention of
Terrorism Act 2005 (PTA 2005), following the decision of the Home
Secretary that there were reasonable grounds for suspecting his involve-
ment in terrorism-related activity. Section 3 of the 2005 Act provides the
judicial mechanism by which the making of a control order is
supervised. Section 1(3) states that:
The obligations that may be imposed by a control order made against an
individual are any obligations that the Secretary of State or (as the case may
be) the court considers necessary for purposes connected with preventing
or restricting involvement by that individual in terrorism-related activity.
Section 1(4) of the PTA 2005 proceeds to list myriad obligations that can
be imposed on a controlee. G’s control order had been modified to
include an obligation that required him to submit to any search of his
person which might be required for the purposes of monitoring his
compliance with the other requirements of the order. In a full hearing
on 12 February 2009, Collins J confirmed the control order, but held
that the Home Secretary did not have the power to impose the ‘submit
to search’ obligation on G. The obligation was accordingly quashed from
the order under the authority of s. 10(7)(b) of PTA 2005.
Upon appeal, the respondent Secretary of State contended that s. 1(3)
was sufficiently broad as to sanction such an expansive search power,
and that the non-exhaustive list of obligations provided in s. 1(4)
required the existence of such a power. Counsel for G rejected such
assertions, stating that there was no power to impose an obligation for
an individual to submit to a personal search: the Executive has no power
to invade a right as fundamental to the common law as personal
autonomy, unless mandated by explicit statutory authority.
H
ELD
,
DISMISSING THE APPEAL
, the common law rights of personal
security and liberty prevented any official search of an individual’s
clothing or person in the absence of express statutory authority (at [44],
per Dyson LJ, applying the decision of R (on the application of Gillan) v
Commissioner of Police of the Metropolis [2006] UKHL 12, [2006] 2 AC 307).
It is established law that any search of a person is a restraint on a person’s
freedom. The absence of the power to require an individual to submit to
searches from the list of specific obligations in s. 1(4) of PTA 2005 is as
consistent with deliberate as with accidental omission by Parliament (at
[22], per Sedley LJ). But even if the omission of such a power were a
471The Journal of Criminal Law (2009) 73 JCL 471–474
doi:10.1350/jcla.2009.73.6.598
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