29 February 2016

Unjustified assumptions: The Supreme Court and Section 60

Estelle Marks's avatar

How are suspicionless stop and search powers being (mis)used? Estelle Marks reflects on the Supreme Court's recent judgment on section 60 by comparing it to section 44 of the Terrorism Act.

In December 2015 the Supreme Court delivered its decision in the case of Roberts v Metropolitan Police Commissioner [2015] UKSC 79 . The court considered the compatibility of Section 60 (s.60) of the Criminal Justice and Public Order Act 1994 with the right to privacy, which is protected by Article 8 of the European Convention on Human Rights. The judges unanimously agreed that s.60 is subject to sufficient safeguards to protect against arbitrary use and comply with the requirements of the Convention. The decision is disappointing not only because it unnecessarily “speaks to stereotypes” but because the Supreme Court has failed to recognise that the police have routinely used s.60 for reasons other than its stated purpose. Whilst misuse is evident when s.60 use is looked at in totality, the structure of the power means that it is almost impossible to prove misuse in any individual instance and the judgment in Roberts completely ignores this issue. The case now looks set to progress to the European Court of Human Rights (ECtHR) in Strasbourg. It is a shame that an application to Strasbourg is necessary, especially given that s.60 is so similar to s.44 of the Terrorism Act 2000, which was found by the ECtHR to be incompatible with Article 8 in 2010.

S.60 is a controversial ‘suspicionless’ stop and search power which allows police officers to search individuals without any suspicion whatsoever, so long as there is an authorisation in place covering the relevant time and place. This differs from conventional stop and search powers that require officers to demonstrate a reasonable suspicion that the person searched is involved in criminal activity. In the UK suspicionless search powers have been enacted for specific purposes, the stated purpose of s.60 is to tackle serious violence such as gang violence, football hooliganism and knife crime. It is similar, but not identical to, s.44 of the Terrorism Act 2000 which was enacted for the purposes of tackling terrorism.

Although both powers are to be used for specific purposes and in exceptional circumstances, during the first decade of this century they became so commonplace it was evident that they were being used in general street policing. When the powers were first enacted they were used sparingly but as police became more confident, especially as legal challenges to s.44 failed in the UK courts, the use of suspicionless searches skyrocketed. At the peak of use in 2008/09 over 210,000 people were searched under s.44 and over 150,000 people were searched under s.60. At that point suspicionless searches accounted for over 31% of all searches recorded by the police.

Since then the situation has changed significantly, s.44 was repealed in 2010 following long running legal challenges. The power that replaced it has never been used in England and Wales. S.60 use has fallen to just over 1,000 searches in 2014/15 and suspicionless searches now make up less than 1% of all searches recorded by the police. This is all for the good, but there is a concern that the Supreme Court judgment in Roberts may be treated by the police as tacit approval for once again increasing the use of s.60. Whilst a careful reading of the judgment does not actually support this the UK court judgments concerning s.44 were full of warnings about police misuse and still emboldened police to increasingly rely on suspicionless search powers simply because the result was in their favour.

The press reaction to the decision in Roberts has focused on a small section of the judgment in which Lady Hale makes some uncharacteristic comments, appealing to stereotypes of black youth being the predominant members of street gangs hence are the justifiable targets of the stop and search power. These comments are shocking in themselves, but appear all the more so because they were completely unnecessary. The High Court and Court of Appeal had refused to consider statistical evidence demonstrating the discriminatory impact of s.60 and the Supreme Court itself refused to admit evidence from the Equality and Human Rights Commission warning of racial profiling; the discrimination point was not even argued in the Supreme Court.

By the time the Roberts case reached the Supreme Court all arguments under Article 14, which prohibits discrimination on the basis of race, and Article 5 which protects the right to liberty, had been withdrawn. It had been conceded that it was impossible to prove that the officer in Ms Roberts’ case had used s.60 for anything other than its stated purpose. This left only a narrow point to be considered by the judges, the very same point which had defeated s.44 in 2010. The appellants argued that s.60 was not subject to sufficient safeguards to be considered “in accordance with the law” and therefore any and all uses of the power must contravene Article 8. Central to this argument is the point that the structure of s.60 makes it impossible to show that any specific use of the power is contrary to its stated purpose. Officers only need to assert that they were initially searching for weapons, even if the circumstances strongly suggest otherwise.

The judgment completely fails to engage with this basic point, Lady Hale simply lists the safeguards that apply to s.60, reflecting the approach that the House of Lords had taken when considering the legality of s.44. Once again the highest court in the UK found that there are sufficient safeguards applicable to the power for it to be considered “in accordance with the law” and by assuming that it was being used only for its stated purpose the Supreme Court has made the same mistake that the House of Lords made when s.44 was considered in 2006.

Both times this ill-founded assertion has flown in the face of all the evidence. Lady Hale makes no reference to evidence that for the best part of the previous decade suspicionless search powers were being misused, routinely, not exceptionally, not for the purposes for which they were enacted. This is illustrated by the statistics for 2009/10, the year in which Ms Roberts was stopped and searched, when there were 60,963 s.60 searches, which resulted in the recovery of only 505 offensive weapons and 243 related arrests (a ‘hit rate’ of less than 1%) but a further 1,160 arrests for offenses unrelated to the purpose of the power.

It is true that much has changed since 2010, the use of suspicionless searches has all but disappeared. When the Roberts case began making its way through the courts in January 2012 the police restricted s.60 use by raising the threshold for authorisations. This can be contrasted to the reaction to the police victory in the House of Lords over s.44, which prompted a massive increase in the number of suspicionless searches. Groups working to restrict stop and search and reduce its negative impact on communities can only hope that the police have learnt from their subsequent failure to defend s.44 in the European Court of Human Rights. It does seem unlikely that the police will take the current victory in Roberts as an indication of judicial approval for increased use, but the Supreme Court could have done more to guard against the possibility.

The existing administrative restrictions on s.60 may convince the ECtHR that current use complies with Article 8. The Government could help to achieve this outcome by incorporating these safeguards into law, or better still by repealing the power altogether. Without this, it is to be hoped the ECtHR will consider the risks of a power, which gives officers such broad discretion to interfere with individual rights, in light of its previous misuse. Given that the discretion of the individual officer is exactly the same under s.60 as it was under s.44, and that this was the main reason given by the ECtHR for holding that s.44 did violate Article 8, there is hope that it will see the danger in s.60 remaining on the statute book un-amended and find a violation. There is also hope that the ECtHR will give the issue of discrimination a thorough hearing and admit the views of the Equality and Human Rights Commission into evidence.

Any views expressed are of inidividual authors and should not be considered to represent StopWatch.