Thursday 8 May 2014
COURT DISMISSES CHALLENGE TO STOP AND SEARCH POWERS
Summary of Judgment
Mr Justice Treacy, sitting today in the High Court in Belfast, dismissed a challenge to the legality of the stop and search powers under section 24 and Schedule 3 to the Justice and Security (NI) Act 2007.
Steven Ramsey (“the applicant”) claimed there was a long and documented history of him being stopped and searched under the powers contained in section 24 and Schedule 3 paragraph 4(1) of the Justice and Security (NI) Act 2007 (“the 2007 Act”). He claimed he was searched on 35 occasions in 2009, 37 occasions in 2010, 23 occasions in 2011, 31 occasions in 2012 and 30 occasions up to 3 August 2013. The notes of five of the searches indicated that he was stopped because of “suspected dissident republican links” or “as a result of confidential briefings”. The applicant challenged the stop and search power primarily on the basis that it fails to satisfy the quality of law test in that there are insufficient safeguards against arbitrariness to render the power compatible with the ECHR.
The 2007 Act was amended by the Protection of Freedoms Act 2012 to provide:
The amended provisions have been in force since 10 July 2012. A Code of Practice governing the use of the power has been in place since 15 May 2013. The court was told that information about the use of authorisations is not immediately publicly available, but there is some consideration of them in the reports of the Independent Reviewer of the 2007 Act. Mr Justice Treacy said it was clear from the reports that the authorisations have been continuously in operation for the whole of NI since the amended legislation came into force. The applicant submitted that there is a clear concern that this effectively means that the “old” power is back in force and questioned whether the authorisation regime now in place is sufficient to render the power compatible with Article 8 of the ECHR.
Mr Justice Treacy referred to the Code of Practice which was brought into force following the Court of Appeal’s decision in the case In re Fox, McNulty and Canning in 2013. In that case, the Court of Appeal held that the absence of a Code of Practice meant that the stop and search power under the 2007 Act was not sufficiently clear and precise in order to comply with Article 8 of the ECHR.
The Code contains two sections relevant to the exercise of the impugned power to stop and search for munitions. Under these provisions, officers are urged to avoid racial or religious profiling when exercising their powers and supervising officers are urged to monitor the use of the powers by compiling comprehensive records. Any apparently disproportionate use of the powers should be identified and investigated (however the applicant commented that such monitoring must be severely limited as the stop and search forms do not require officers to note a person’s religion or political opinion). Mr Justice Treacy commented that the exercise of the impugned powers would be even more intrusive if it were to be suggested that questions be directed by the police on these issues to the person they had stopped. He said, however, there is no reason why, if there is to be effective monitoring, that details of the perceived religion/political opinion should be omitted or not recorded especially as in many cases the exercise of powers will be intelligence driven and the perceived religion/political opinion is likely to be known by the police.
Paragraph 8 of the Code provides that when giving an authorisation, the officer must specify the geographical area in which the power may be used and the time and date that the authorisation ends (up to a maximum of 14 days from the time when the authorisation was given). Both the duration and the geographical extent of an authorisation “must be no greater than is necessary to prevent endangerment to the public caused by the use of munitions or wireless apparatus based on an assessment of the available information”. An authorisation can be granted to apply to all or part of NI “but only if the endangerment from munitions or wireless apparatus makes it necessary”. The Code adds, however that “endangerment of the public, based on a number of threats, may not in itself be sufficient to justify extension throughout NI … however where an authorisation responds to multiple threats in different places across a period of time it is more likely that an authorisation for the maximum area and period of time [14 days] would meet the necessity test.
Mr Justice Treacy noted that:
“Rolling authorisations have meant that the entire jurisdiction of NI has been covered by an authorisation since 10 July 2012 and therefore the power to stop and search for munitions etc without any reasonable suspicion has been continually in force since then throughout the entire jurisdiction.”
The applicant claimed that this showed the Code of Practice was ineffective to prevent the power being used disproportionately and indeed abused. He submitted that the power was not in accordance with law and therefore in breach of his Article 8 rights. The applicant further submitted that the power, and its use in this particular case, could not be said to be necessary in a democratic society and not proportionate.
Mr Justice Treacy said that in order to meet the “quality of law test” the law must be “adequately accessible and foreseeable, that is formulated with sufficient precision to enable the individual – if need be with appropriate legal advice – to regulate his conduct”. He commented that domestic law must afford a measure of legal protection against arbitrary interference by the State with rights safeguarded by the Convention: “In matters affecting fundamental rights it would be contrary to the rule of law … for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion … and the manner of its exercise”.
It was claimed that the promulgation of the Code and the introduction of the authorisation regime were important safeguards which rescued the powers from violating Article 8. The question therefore was whether the Code and the authorisation regime were sufficient safeguards to protect against arbitrariness.
Mr Justice Treacy commented that the Code purports to qualify and guide the exercise the impugned stop and search power: “On its face the Code seeks to ensure proportionality in the exercise of the impugned power and specifies the circumstances which justify its exercise”. He concluded that the Code would appear to plug the gap identified by the Court of Appeal in 2013 and that the new authorisation regime offered additional safeguards including some oversight by the Secretary of State, the Independent Reviewer and scrutiny by the Policing Board. The judge said he was satisfied there are now sufficient safeguards against arbitrariness to render the power compatible with the Convention and rejected the submission that the power is disproportionate.
The judge dismissed the application for judicial review.
NOTES TO EDITORS
1. This summary should be read together with the judgment and should not be read in isolation. Nothing said in this summary adds to or amends the judgment. The full judgment will be available on the Court Service website (www.courtsni.gov.uk).
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