HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
R (on the application of Gillan (FC) and another (FC)) (Appellants) v. Commissioner of Police for the Metropolis and another (Respondents)
 UKHL 12
LORD BINGHAM OF CORNHILL
1. It is an old and cherished tradition of our country that everyone should be free to go about their business in the streets of the land, confident that they will not be stopped and searched by the police unless reasonably suspected of having committed a criminal offence. So jealously has this tradition been guarded that it has almost become a constitutional principle. But it is not an absolute rule. There are, and have for some years been, statutory exceptions to it. These appeals concern an exception now found in sections 44-47 of the Terrorism Act 2000 ("the 2000 Act"). The appellants challenge the use made of these sections and, in the last resort, the sections themselves. Since any departure from the ordinary rule calls for careful scrutiny, their challenge raises issues of general importance.
2. The first appellant, Mr Gillan, was a PhD student studying in Sheffield when, on 9 September 2003, he came to London to protest peacefully against an arms fair being held at the ExCel Centre, Docklands, in east London. He was riding his bicycle near the Centre when he was stopped by two male police officers. They searched him and his rucksack and found nothing incriminating. They gave him a copy of the Stop/Search Form 5090 which recorded that he was stopped and searched under section 44 of the 2000 Act. The search was said to be for "Articles concerned in terrorism". The whole incident lasted about twenty minutes.
3. The second appellant, Ms Quinton, was an accredited freelance journalist and went to the Centre on 9 September 2003 to film the protests taking place against the arms fair. She was stopped by a female police officer near the Centre and asked to explain why she had appeared out of some bushes. Ms Quinton was wearing a photographer's jacket and carrying a small bag and a video camera. She explained she was a journalist and produced her press passes. The officer searched her, found nothing incriminating, and gave her a copy of Form 5090. This recorded that the object and grounds of the search were "P.O.T.A.", which was no doubt intended to be a reference to the 2000 Act. The form showed the length of the search as five minutes, but Ms Quinton estimated that it lasted for thirty.
I. The legislation
4. The 2000 Act, enacted in July 2000, was a substantial measure intended to overhaul, modernise and strengthen the law relating to the growing problem of terrorism. It supplemented existing criminal law statutes such as the Explosive Substances Act 1883 and the Aviation and Maritime Security Act 1990. It replaced some earlier statutes such as the Prevention of Terrorism (Temporary Provisions) Act 1989 as amended. It contained, in section 1, a far-reaching definition of terrorism:
"(1) In this Act 'terrorism' means the use or threat of action where
(a) the action falls within subsection (2),
(b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and
(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.
(2) Action falls within this subsection if it
(a) involves serious violence against a person,
(b) involves serious damage to property,
(c) endangers a person's life, other than that of the person committing the action,
(d) creates a serious risk to the health or safety of the public or a section of the public, or
(e) is designed seriously to interfere with or seriously to disrupt an electronic system.
(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.
(a) 'action' includes action outside the United Kingdom,
(b) a reference to any person or to property is a reference to any person, or to property, wherever situated,
(c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and
(d) 'the government' means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.
(5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation."
In Part V of the Act, which contains the provisions at issue in these appeals, "terrorist" is defined, in section 40, to mean a person who has committed an offence under certain specified sections of the Act, or who "is or has been concerned in the commission, preparation or instigation of acts of terrorism".
5. Sections 41-43 of the Act, all under the sub-heading "Suspected terrorists", provide for arrest without warrant, the search of premises and the search of persons by a constable. In each case there must be reasonable suspicion that the person subject to the arrest or search is a terrorist. Sections 44-47, under the sub-heading "Power to stop and search", are not subject to that requirement. These sections provide for a three stage procedure.
6. The first stage is that of authorisation, which is governed by section 44. Omitting amendments made in 2001 which do not bear on the issue before the House, the section provides:
"(1) An authorisation under this subsection authorises any constable in uniform to stop a vehicle in an area or at a place specified in the authorisation and to search
(b) the driver of the vehicle;
(c) a passenger in the vehicle;
(d) anything in or on the vehicle or carried by the driver or a passenger.
(2) An authorisation under this subsection authorises any constable in uniform to stop a pedestrian in an area or at a place specified in the authorisation and to search
(b) anything carried by him.
(3) An authorisation under subsection (1) or (2) may be given only if the person giving it considers it expedient for the prevention of acts of terrorism.
(4) An authorisation may be given
(a) where the specified area or place is the whole or part of a police area outside Northern Ireland other than one mentioned in paragraph (b) or (c), by a police officer for the area who is of at least the rank of assistant chief constable;
(b) where the specified area or place is the whole or part of the metropolitan police district, by a police officer for the district who is of at least the rank of commander of the metropolitan police;
(c) where the specified area or place is the whole or part of the City of London, by a police officer for the City who is of at least the rank of commander in the City of London police force;
(d) where the specified area or place is the whole or part of Northern Ireland, by a [member of the Police Service of Northern Ireland] who is of at least the rank of assistant chief constable.
(5) If an authorisation is given orally, the person giving it shall confirm it in writing as soon as is reasonably practicable."
By section 46(1)-(2), an authorisation takes effect when given and expires when it is expressed to expire, but may not be for longer than 28 days.
7. The second stage is confirmation, governed by section 46(3)-(7). The giver of an authorisation must inform the Secretary of State as soon as is reasonably practicable. If the Secretary of State does not confirm the authorisation within 48 hours of the time when it was given, it then ceases to have effect (without invalidating anything done during the 48-hour period). When confirming an authorisation the Secretary of State may substitute an earlier, but not a later, time of expiry. He may cancel an authorisation with effect from a specified time. Where an authorisation is duly renewed, the same confirmation procedure applies. The Secretary of State may not alter the geographical coverage of an authorisation, but may no doubt withhold his confirmation if he considers the area covered to be too wide.
8. The third stage involves the exercise of the stop and search power, which is governed by section 45. This provides:
"(1) The power conferred by an authorisation under section 44(1) or (2)
(a) may be exercised only for the purpose of searching for articles of a kind which could be used in connection with terrorism, and
(b) may be exercised whether or not the constable has grounds for suspecting the presence of articles of that kind.
(2) A constable may seize and retain an article which he discovers in the course of a search by virtue of section 44(1) or (2) and which he reasonably suspects is intended to be used in connection with terrorism.
(3) A constable exercising the power conferred by an authorisation may not require a person to remove any clothing in public except for headgear, footwear, an outer coat, a jacket or gloves.
(4) Where a constable proposes to search a person or vehicle by virtue of section 44(1) or (2) he may detain the person or vehicle for such time as is reasonably required to permit the search to be carried out at or near the place where the person or vehicle is stopped.
(a) a vehicle or pedestrian is stopped by virtue of section 44(1) or (2), and
(b) the driver of the vehicle or the pedestrian applies for a written statement that the vehicle was stopped, or that he was stopped, by virtue of section 44(1) or (2),
the written statement shall be provided.
(6) An application under subsection (5) must be made within the period of 12 months beginning with the date on which the vehicle or pedestrian was stopped."
These powers are additional to the other powers conferred on a constable by law: section 114. Section 47 makes it an offence punishable by imprisonment or fine or both to fail to stop when required to do so by a constable, or wilfully to obstruct a constable in the exercise of the power conferred by an authorisation under section 44(1) or (2).
9. In dispensing with the condition of reasonable suspicion, section 45(1)(b) departs from the ordinary and salutary rule found in provisions such as section 1 of the Police and Criminal Evidence Act 1984, section 47 of the Firearms Act 1968, section 23 of the Misuse of Drugs Act 1971 and (as noted above) sections 41-43 of the 2000 Act itself. But such departure is not without precedent. A similar (although more specific and more time-limited) departure is found in section 60 of the Criminal Justice and Public Order Act 1994, where incidents involving serious violence are reasonably believed to be imminent. More pertinently, because addressed to the prevention of terrorism, a similar departure was made in section 13A of the Prevention of Terrorism (Temporary Provisions) Act 1989, inserted by section 81 of the 1994 Act just mentioned. As originally enacted, that section contained provisions very similar to those in sections 44(1), (3) and (4), 45(1) and (5) and 47(1) and (2) of the 2000 Act, but that Act did not (until amended in 1996) apply to the stopping or searching of pedestrians or make any provision for confirmation by the Secretary of State. It is also noteworthy that section 45(1)(b) is not the only provision of the 2000 Act which dispenses with the condition of reasonable suspicion: Schedule 7 to the Act makes detailed provision for the stopping and questioning of those embarking and disembarking at ports and airports, without reasonable suspicion, supplemented by a power to detain for a period of up to nine hours.
II. Code A
10. By section 66 of the Police and Criminal Evidence Act 1984, as amended, the Secretary of State must issue codes of practice in connection with the exercise by police officers of statutory powers to search, detain and question. They are under a duty to have regard to any relevant provisions of a code. In criminal and civil proceedings the contents of any code must be taken into account in determining a question to which such code is relevant. Code A, in the version effective from 1 April 2003 and in force in September 2003, related to powers of stop and search. It is a public document.
11. In paragraphs 1.2 and 1.3 Code A provided:
"1.2 The intrusion on the liberty of the person stopped or searched must be brief and detention for the purposes of a search must take place at or near the location of the stop.
1.3 If these fundamental principles are not observed the use of powers to stop and search may be drawn into question. Failure to use the powers in the proper manner reduces their effectiveness. Stop and search can play an important role in the detection and prevention of crime, and using the powers fairly makes them more effective"
Paragraphs 2.19-2.23 summarised the statutory provisions governing authorisation and confirmation. Paragraphs 2.24-2.26 continued:
"2.24 When an authorisation under section 44 is given, a constable in uniform may exercise the powers:
(a) only for the purpose of searching for articles of a kind which could be used in connection with terrorism (see paragraph 2.25);
(b) whether or not there are any grounds for suspecting the presence of such articles.
2.25 The selection of persons stopped under section 44 of Terrorism Act 2000 should reflect an objective assessment of the threat posed by the various terrorist groups active in Great Britain. The powers must not be used to stop and search for reasons unconnected with terrorism. Officers must take particular care not to discriminate against members of minority ethnic groups in the exercise of these powers. There may be circumstances, however, where it is appropriate for officers to take account of a person's ethnic origin in selecting persons to be stopped in response to a specific terrorist threat (for example, some international terrorist groups are associated with particular ethnic identities).
2.26 The powers under sections 43 and 44 of the Terrorism Act 2000 allow a constable to search only for articles which could be used for terrorist purposes. However, this would not prevent a search being carried out under other powers if, in the course of exercising these powers, the officer formed reasonable grounds for suspicion."
Paragraph 3.5 provided:
"3.5 There is no power to require a person to remove any clothing in public other than an outer coat, jacket or gloves except under section 45(3) of the Terrorism Act 2000 (which empowers a constable conducting a search under section 44(1) or 44(2) of that Act to require a person to remove headgear and footwear in public) and under section 60AA of the Criminal Justice and Public Order Act 1994 (which empowers a constable to require a person to remove any item worn to conceal identity). A search in public of a person's clothing which has not been removed must be restricted to superficial examination of outer garments. This does not, however, prevent an officer from placing his or her hand inside the pockets of the outer clothing, or feeling round the inside of collars, socks and shoes if this is reasonably necessary in the circumstances to look for the object of the search or to remove and examine any item reasonably suspected to be the object of the search. For the same reasons, subject to the restrictions on the removal of headgear, a person's hair may also be searched in public (see paragraphs 3.1 and 3.3)."
Certain steps were required by paragraph 3.8 to be taken before the search:
"3.8 Before any search of a detained person or attended vehicle takes place the officer must take reasonable steps to give the person to be searched or in charge of the vehicle the following information:
(a) that they are being detained for the purposes of a search;
(b) the officer's name (except in the case of enquiries linked to the investigation of terrorism, or otherwise where the officer reasonably believes that giving his or her name might put him or her in danger, in which case a warrant or other identification number shall be given) and the name of the police station to which the officer is attached;
(c) the legal search power which is being exercised; and
(d) a clear explanation of;
(i) the purpose of the search in terms of the article or articles for which there is a power to search; and
(ii) in the case of powers requiring reasonable suspicion (see paragraph 2.1(a)), the grounds for that suspicion; or
(iii) in the case of powers which do not require reasonable suspicion (see paragraph 2.1(b), and (c)), the nature of the power and of any necessary authorisation and the fact that it has been given."
Officers conducting a search were required by paragraph 3.9 to be in uniform. The Code continued, in paragraphs 3.10-3.11:
"3.10 Before the search takes place the officer must inform the person (or the owner or person in charge of the vehicle that is to be searched) of his or her entitlement to a copy of the record of the search, including his entitlement to a record of the search if an application is made within 12 months, if it is wholly impracticable to make a record at the time. If a record is not made at the time the person should also be told how a copy can be obtained (see section 4). The person should also be given information about police powers to stop and search and the individual's rights in these circumstances.
3.11 If the person to be searched, or in charge of a vehicle to be searched, does not appear to understand what is being said, or there is any doubt about the person's ability to understand English, the officer must take reasonable steps to bring information regarding the person's rights and any relevant provisions of this Code to his or her attention. If the person is deaf or cannot understand English and is accompanied by someone, then the officer must try to establish whether that person can interpret or otherwise help the officer to give the required information."
A record was required to be made at the time or as soon as practicable (para 4.1):
"4.1 An officer who has carried out a search in the exercise of any power to which this Code applies, must make a record of it at the time, unless there are exceptional circumstances which would make this wholly impracticable (eg. in situations involving public disorder or when the officer's presence is urgently required elsewhere). If a record is not made at the time, the officer must do so as soon as practicable afterwards. There may be situations in which it is not practicable to obtain the information necessary to complete a record, but the officer should make every reasonable effort to do so."
III. The issues