The House of Lords has upheld the powers of stop and search in the Terrorism Act 2000, ss. 44 to 47, and rejected the suggestion that their use amounts to a contravention of the ECHR.
Section 44(2) of the Terrorism Act 2000 provides that an authorisation may be given to stop a pedestrian in a specified area or place if the high-ranking police officer giving it considers that such an authorisation is expedient for the prevention of acts of terrorism. In this instance the specified area was the Metropolitan Police District. Since s. 44 came into force there had been a succession of authorisations and confirmations. A constable acting under the authorised powers did not need to have reasonable grounds for suspecting the presence of an article to stop and search.
In brief their lordships held:
• The decision-maker need not have reasonable grounds for considering that the powers were necessary or suitable; the word ‘expedient’ bears a distinct meaning, and safeguards were written into the Act. • An authorisation might thus be given only if the person giving it considered that the powers would be of significant practical utility in seeking to prevent acts of terrorism. • Although there had been a succession of authorisations and confirmations, there was no evidence to suggest that these had been the result of a routine bureaucratic exercise. On the evidence they were a reasonable response to a continued threat. They do not contravene the statute. • The geographical spread of the authorisations was justified on the evidence which was that terrorist targets were spread throughout London and that it would be impracticable to differentiate between some parts of the district and others. The applicants offered no evidence to the contrary. • There was no contravention of the ECHR, art. 5 (right to liberty and security). Stop and search is a brief procedure. The person searched is not handcuffed, confined or removed to a different place, nor is he confined or kept in custody. There is no deprivation of liberty. • A superficial search of the person and an opening of bags do not contravene art. 8 (right to private life). • Stop and search properly exercised does not constitute an interference with the right to free speech and so does not contravene arts. 10 or 11.
The issues of random and of discriminatory searchwere also considered. A search based on a police officer’s trained instinct cannot, according to Lords Brown and Scott, be said to be random. In determining who to search, police officers are entitled to take account of the particular community, if any,from whom the threat is considered to emanate but, for example, the mere fact that a person is of Asian origin is not, per Lord Hope and Lord Brown, a legitimate reason to stop and search him. A person cannot be profiled simply by reason of his ethnicity. It follows that the power requires the person to have conducted himself in such a way as to arouse suspicion that he may pose a terrorist threat.