WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
November 13 2024
WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
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On suspicionless searches, the Human Rights Act, and police accountability

On suspicionless searches, the Human Rights Act, and police accountability

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Guest article by Habib Kadiri and Sonder Li of StopWatch

From Dominic Raab’s attempts to make the UK supreme court the ‘ultimate judicial arbiter’ in interpreting the European Convention on Human Rights (ECHR), to Suella Braverman’s allegation that the European Court of Human Rights (ECtHR) is ‘treading on the territory of national sovereignty’, the government has made no secret of its disdain for a law that directly defends British subjects’ human rights against the whims of state actors. This is reflected in the incumbent Conservative Party’s 2019 election manifesto, which promised at the time to ‘ensure that there is a proper balance between the rights of individuals, our vital national security and effective government.’

That the party would – in order to achieve the said balance – be prepared to warp a legal instrument originally proposed by former Conservative Party leader and prime minister Winston Churchill and drafted mainly by British lawyers seems an odd move. Things become more curious when we are reminded that that the police – as state actors – breach individuals’ human rights daily in the (mis)use of stop and search powers. In particular, there are significant discrepancies between police powers to conduct stop and searches without reasonable suspicion – recently expanded under the  Police, Crime, Sentencing and Courts Act (PCSC) 2022 and the Public Order Act 2023 – and human rights law.

The 2010 ECtHR case Gillan and Quinton v the United Kingdom covered suspicionless police searches under the Terrorism Act 2000, finding that ‘coercive powers to require an individual to submit to a detailed search of his person, his clothing and his personal belongings amount to a clear interference with the right to respect for private life.’ Stop and search provisions under the most recent criminal justice legislation are similarly coercive, allowing for up to two-years’ imprisonment. Those convicted may also be required to notify the police of their name and regular addresses at which they reside. This raises concerns of systematic monitoring of those individuals, which seriously interferes with the right to respect for private life, as well as the rights to liberty and rights to remain silent (Articles 5 and 6 of the European Convention on Human Rights).

The joint committee on human rights found that powers under the new legislation also interfere with Articles 10 and 11 – the rights freedom of expression and assembly. Police can search for ‘objects made or adapted for the use in course of or in connection with a protest-related offence’ if an inspector reasonably believes any protest-related offences may be committed. This power is very likely to have a chilling effect not only because of its intrusive nature but also the vast range of people that would be caught under it. Suspicionless stop and search powers also compound discrimination against ethnic minorities, in contradiction to Article 14.

Suspicionless search powers stem from the 30-year old Criminal Justice and Public Order Act, ostensibly created to deal with acts of serious violence. In 2015, considering the case Roberts v Commissioner of Police, the Supreme Court warned against the arbitrary and discriminatory use of these powers. Only plans to introduce safeguards could justify them. However, seven years later, the government announced its intention to relax the Best Use of Stop and Search scheme safeguards and we see how suspicionless search powers have subsequently been extended to far less serious offences in today’s Public Order Act.

The expansion and even the existence of suspicionless searches clearly challenges our commitment to human rights legislation, which makes the Roberts decision so striking, in that it failed to recognise the discriminatory harm driving suspicionless searches against ethnic minorities as an interference with Articles 8 and 14 of the ECHR. Contrarily, the judgement made unsubstantiated assertions that the use of these powers was effective to its deterrent effect, which saved ‘mostly young black lives’. This is despite the fact that section 60 powers are consistently ineffective in preventing crime. These powers only result in a 3.4% arrest rate. The court was in no position to offer a criminological rationale for their effectiveness without considering the evidence in the public domain. Thus Roberts has had the effect of endorsing racially discriminatory policing.

Meanwhile, the ECtHR has repeatedly found, in the cases Gilian and Quinton v UK in 2010 and Beghal v United Kingdom in 2019, that suspicionless searches can and do violate our right to respect for our private and family life. The court found that there were insufficient safeguards against abuse of these powers, and recognised the risks of such powers being used in a discriminatory manner against ethnic minorities.

In light of this, there is a compelling case to revamp the tried-and-tested approaches to police accountability. Examination of the powers’ effectiveness is not enough – rather, these powers should be scrutinised from a human rights perspective. In particular, the legality of the original CJPOA power needs to be revisited, with an eye to compliance with our rights to liberty, respect for our private life, and prohibition against discrimination.

Unfortunately, public discourse around police powers in England and Wales has focussed on crime reduction, service quality and the grandstanding of punitive measures. Comparatively little attention from politicians and the police has been devoted to interrogating whether the exercise of police powers is compliant with human rights standards. As a result of this, our colloquial understanding of how the police should (and indeed, can) be held to account using all the legal and political equipment available to us has been woefully distorted.

The Police Service for Northern Ireland follow a statutory duty to comply with human rights standards, through a monitoring framework and annual report. By contrast, the Metropolitan Police has failed to take any meaningful stance towards a human rights’ compliant practice, or encouraged any sustainable or substantive scrutiny in this manner. Even the Casey Report – which shone a devastatingly critical eye on the institutional failures of the Met – made only occasional reference to the force’s obligations under human rights standards. While embedding human rights norms into the Met and other police forces in England and Wales is by no means a panacea for its ills, a human rights based approach reasserts the enduring importance of safeguarding individual liberties against the excesses of state power.

This is an abridged version of an article kindly provided by Habib Kadiri and Sonder Li of Stopwatch; the full version can be found here.

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