Gillan, Regina (on the Application of) v Commissioner of Police for the Metropolis and Another: HL 8 Mar 2006

The defendants said that the stop and search powers granted under the 2000 Act were too wide, and infringed their human rights. Each had been stopped when innocently attending demonstrations in London, and had been effectively detained for about twenty minutes or more before being allowed to continue. An authorisation had been granted by an assistant commissioner for searches to be carried out throughout the capital.
Held: The appeals failed. The authorisation had been considered and proportionate to the threat to the capital.
As to whether being stopped amounted to a deprivation of liberty: ‘I would accept that when a person is stopped and searched under sections 44-45 the procedure has the features on which the appellants rely. On the other hand, the procedure will ordinarily be relatively brief. The person stopped will not be arrested, handcuffed, confined or removed to any different place. I do not think, in the absence of special circumstances, such a person should be regarded as being detained in the sense of confined or kept in custody, but more properly of being detained in the sense of kept from proceeding or kept waiting. There is no deprivation of liberty.’
Lord Bingham said: ‘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.’
. . and: ‘The lawfulness requirement in the Convention addresses supremely important features of the rule of law. The exercise of power by public officials, as it affects members of the public, must be governed by clear and publicly-accessible rules of law. The public must not be vulnerable to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than that for which the power was conferred. This is what, in this context, is meant by arbitrariness, which is the antithesis of legality. This is the test which any interference with or derogation from a Convention right must meet if a violation is to be avoided.’
Lord Bingham went on to say: ‘The claimants contended that the exercise of the section 45 stop and search power necessarily involves the interference with the exercise of the article 8(1) right, and therefore had to be justified under article 8(2). The defendants did not accept that there would necessarily be such interference, but accepted that there might, as where (for instance) an officer in the course of a search perused an address book, or diary, or correspondence. I have no doubt but that the defendants’ concession is rightly made. I am, however, doubtful whether an ordinary superficial search of the person can be said to show a lack of respect for private life. It is true that ‘private life’ has been generously construed to embrace wide rights to personal autonomy. But it is clear Convention jurisprudence that intrusions must reach a certain level of seriousness to engage the operation of the Convention, which is, after all, concerned with human rights and fundamental freedoms, and I incline to the view that an ordinary superficial search of the person and an opening of bags, of the kind to which passengers uncomplainingly submit at airports, for example, can scarcely be said to reach that level.’

Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood
[2006] UKHL 12, Times 09-Mar-2006, [2006] 2 AC 307, [2006] UKHRR 740, [2006] 2 WLR 537, [2006] 2 Cr App R 36, [2006] Crim LR 752, [2006] HRLR 18, 21 BHRC 202, [2006] Po LR 26, [2006] 4 All ER 1041
Bailii, HL
Terrorism Act 2000 44, European Convention on Human Rights 5 8 10
England and Wales
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The applicants challenged by way of judicial review the way they had been stopped and searched under the Act. They attended a demonstration. The search revealed nothing suspicious. General authorisations for such searches had been issued under the . .
Appeal fromGillan and Quinton, Regina (on the Application of) v Commissioner of Police for the Metropolis and Another CA 29-Jul-2004
The appellants had challenged the lawfulness of being stopped and searched by police. The officers relied on an authorisation made under the 2000 Act. They had been on their way to attending an arms fair, intending to demonstrate.
Held: The . .
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Police, Human Rights

Leading Case

Updated: 02 January 2022; Ref: scu.238920