"57. The Court observes that although the length of time during which each applicant was stopped and search did not in either case exceed 30 minutes, during this period the applicants were entirely deprived of any freedom of movement. They were obliged to remain where they were and submit to the search and if they had refused they would have been liable to arrest, detention at a police station and criminal charges. This element of coercion is indicative of a deprivation of liberty within the meaning of Article 5 § 1 (see, for example, Foka v. Turkey, no. 28940/09, §§ 74-79, 24 June 2008). In the event, however, the Court is not required finally to determine this question in the light of its findings below in connection with Article 8 of the Convention...
65. Each of the applicants was stopped by a police officer and obliged to submit to a search under section 44 of the 2000 Act... the Court considers that these searches constituted interferences with their right to respect for private life under Article 8. Such an interference is justified by the terms of paragraph 2 of Article 8 only if it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and is “necessary in a democratic society” in order to achieve the aim or aims (see, for example, Liberty and Others v. the United Kingdom, no. 58243/00, § 58, ECHR 2008-...)...
70. No prior judicial authorisation was required for the availability of the power and the possibility of bringing proceedings in the County Court to determine whether the power had been properly and lawfully used was a wholly inadequate safeguard against misuse and arbitrariness. The ex post facto review of the exercise of the power by the County Court in any individual's case did not rectify the lack of legal certainty associated with the power. The applicants' own cases illustrated this point: once the House of Lords had rejected their complaints under the Convention, it was open to the County Court only to determine whether the officers were actually looking for terrorist articles and whether the applicants were obviously not terrorist suspects, a question to which a positive answer was virtually impossible. The removal of the “reasonable suspicion” requirement, or any other objective basis for the search, rendered the citizen extremely vulnerable to an arbitrary exercise of power, restrained only by the police officer's honesty to divulge what type of incriminating article he was looking for on the occasion in question. The lack of any practical and effective safeguards was compounded by the apparent breadth of the definition of “articles of a kind which could be used in connection with terrorism”. There was thus a real risk that the powers might be misused so as to regulate protest or to maintain public order, rather than to counter terrorism. This clearly had far-reaching consequences for civil liberties in the United Kingdom, particularly when, at the material time, the authorisation covered the whole of the Metropolitan Police District; had been continuously renewed every month for almost six years; and when there was no requirement that the authorisation be necessary or suitable, but only “expedient”, for preventing terrorism...
76. The Court recalls its well established case-law that the words “in accordance with the law” require the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention and inherent in the object and purpose of Article 8. The law must thus be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual - if need be with appropriate advice - to regulate his conduct (S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, §§ 95 and 96, ECHR 2008-...).77. For domestic law to meet these requirements it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, 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 conferred on the competent authorities and the manner of its exercis...
80. The Court notes at the outset that the senior police officer referred to in section 44(4) of the Act is empowered to authorise any constable in uniform to stop and search a pedestrian in any area specified by him within his jurisdiction if he “considers it expedient for the prevention of acts of terrorism”. However, “expedient” means no more than “advantageous” or “helpful”. There is no requirement at the authorisation stage that the stop and search power be considered “necessary” and therefore no requirement of any assessment of the proportionality of the measure. The authorisation is subject to confirmation by the Secretary of State within 48 hours. The Secretary of State may not alter the geographical coverage of an authorisation and although he or she can refuse confirmation or substitute an earlier time of expiry, it appears that in practice this has never been done. Although the exercise of the powers of authorisation and confirmation is subject to judicial review, the width of the statutory powers is such that applicants face formidable obstacles in showing that any authorisation and confirmation are ultra vires or an abuse of power...
83. Of still further concern is the breadth of the discretion conferred on the individual police officer. The officer is obliged, in carrying out the search, to comply with the terms of the Code. However, the Code governs essentially the mode in which the stop and search is carried out, rather than providing any restriction on the officer's decision to stop and search. That decision is, as the House of Lords made clear, one based exclusively on the “hunch” or “professional intuition” of the officer concerned (see paragraph 23 above). Not only is it unnecessary for him to demonstrate the existence of any reasonable suspicion; he is not required even subjectively to suspect anything about the person stopped and searched. The sole proviso is that the search must be for the purpose of looking for articles which could be used in connection with terrorism, a very wide category which could cover many articles commonly carried by people in the streets. Provided the person concerned is stopped for the purpose of searching for such articles, the police officer does not even have to have grounds for suspecting the presence of such articles. As noted by Lord Brown in the House of Lords, the stop and search power provided for by section 44 “radically ... departs from our traditional understanding of the limits of police power” (see paragraph 23 above)...
85. In the Court's view, there is a clear risk of arbitrariness in the grant of such a broad discretion to the police officer...
The judgment is worth reading in full and constitutes another significant defeat to the UK government's surveillance state "solution" to the not insignificant problem of terrorism.86. The Government argue that safeguards against abuse are provided by the right of an individual to challenge a stop and search by way of judicial review or an action in damages. But the limitations of both actions are clearly demonstrated by the present case. In particular, in the absence of any obligation on the part of the officer to show a reasonable suspicion, it is likely to be difficult if not impossible to prove that the power was improperly exercised.
87. In conclusion, the Court considers that the powers of authorisation and confirmation as well as those of stop and search under sections 44 and 45 of the 2000 Act are neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. They are not, therefore, “in accordance with the law” and it follows that there has been a violation of Article 8 of the Convention."
Update: Nice commentary from Hawtalk.
"In summary, the Home Office's human rights team is not very good because human rights are not its main function. The Home Office exists to support immigration, policing and national security – all the organisations that need powers to invade privacy - it needs privacy protection like it needs a hole in the head.
It is therefore not surprising that Home Office legislation provides for wide ranging powers to help "their agencies" and the bare minimum when drafting provisions that protect individuals from misuse of these powers."
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