The European Court of Human Rights has condemned the search procedure established by the British anti-terrorist law.

Mr Kevin Gillan and Ms Pennie Quinton had appealed to the Court. On 9 September 2003 they had both been stopped and searched by police officers acting in accordance with articles 44 to 47 of the 2000 law while on their way to a demonstration being held not far from the annual Arms Fair in East London. Mr Gillian, wearing a backpack, was riding a bicycle when he was stopped and searched by two police officers. Ms Quinton, a journalist, was stopped and searched by a police officer who, despite having been shown her press card, ordered her to cease filming. After being retained for 20 minutes, Mr Gillan was allowed to continue on his way. The report on the search of Ms Quinton states that she was retained for five minutes whereas she believed that the interrogation lasted for up to 30 minutes.

In its judgment of 12 January 2009, the Court ruled that resort to the coercive powers provided in anti-terrorist legislation obliging each individual to submit to a thorough search of his person, clothing and personal effects constitutes a flagrant violation of the entitlement to respect for privacy. The public nature of the search, entailing the discomforting disclosure of personal information to the view of others, may even in certain cases aggravate the violation by adding an element of humiliation and embarrassment. The intervention is not comparable with searches of passengers at airports. In fact, it could be said that someone who takes a plane, having chosen that mode of travel, is in agreement with such a search. They know that baggage is subject to search before embarkation and may therefore decide not to take objects which are subject to restriction. The powers of search conferred by article 44 of the 2000 law are of a different order: any person may be questioned anywhere at any time without prior notification and without having the choice of accepting or refusing to be searched.

Moreover, in the opinion of the Court, the broad discretionary powers conferred on the police by the 2000 law on the authorization of interrogation and search and their practical application, are not coupled with legal guarantees providing adequate protection to individuals against arbitrary interference.

First of all it is not required at the authorization stage that the questioning and search powers be considered "necessary" but simply that they be "appropriate". The authorization should be confirmed by a minister within 48 hours and is renewable every 28 days. The minister cannot modify the territorial scope of application and even if he can refuse to confirm it or to advance the date of expiration it seems that in practice that has never happened. In reality, the restrictions on time and place allowed for by Parliament have not really constrained the issuing of authorizations by the executive power as is evidenced by the fact that the initial authorization accorded to the police district of Greater London has been renewed "automatically" on a continuous basis since 2001.

The Independent Reviewer established by the 2000 law constitutes a supplementary guarantee. Nevertheless, its powers are limited to observing the general manner in which the legislative dispositions are applied and do not include the capacity to annul or modify the authorizations, even though in each of the reports it has presented since May 2006, it has clearly expressed the opinion that “article 44 could be used less and it is to be hoped that resort to it will diminish.”

The discretionary power enjoyed by each police officer in this regard is another cause for concern. The decision of a police officer to stop and search a person is based solely on a “feeling” or “professional intuition”. Not only is there no requirement to demonstrate the existence of a reasonable motive for suspecting an offence but the officer is not even obliged to have the least subjective suspicion with regard to the person who is the object of the questioning and search. The only condition is that the search should be aimed at finding objects whose nature could serve terrorist purposes, which constitutes a very broad category covering numerous objects that anyone in the street could have in his possession. Yet, to stop and question someone, the police officer need not have any particular reason to suspect the presence of such objects if the intention is to search for them. With regard to the statistical and other elements in its possession the Court has been struck by the extent to which the police resort to the stop and search powers conferred on them by article 44 of the 2000 law. It considers that the conferring on each police officer of such wide discretionary powers carries a clear risk of arbitrariness. While the present cases do not involve Blacks or Asians, the likelihood of the discriminatory use of such prerogatives is certainly real and it emerges from the remaining statistics that the powers in question are in fact applied disproportionately at the expense of these categories of people. In addition, there is a risk of the abusive employment of such widely defined powers against demonstrators or protesters, in violation of articles 10 and/or 11 of the Convention.

Although the powers of authorization and confirmation exercised respectively by senior police officers and the minister may be subject to jurisdictional inspection, the extent of the discretionary powers involved is such that people have to confront considerable obstacles to succeed in proving that an authorization or confirmation was genuinely issued for anti-terrorist purposes or that it constitutes an abuse of power. Similarly a request for jurisdictional inspection or a legal action for reparations contesting the utilization of stop and search powers by a police officer has little chance of success. The absence of any requirement by a police officer to prove the existence of a reasonable suspicion makes it practically impossible to demonstrate that he exerted his authority in an illegitimate manner.

In other words, the Court considered that the powers of authorization and confirmation as well as the powers to stop and search as provided for in articles 44 and 45 of the law of 2000 are neither sufficiently circumscribed nor coupled with legal guarantees against their abuse.

Translated from French to English by Carl Freeman.