Research and action for fair and accountable policing

About Twitter Instagram Facebook Donate

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

Abridged version posted on the Justice Gap website

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’, this Conservative Party led 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 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 section 342E of the Police, Crime, Sentencing and Courts Act (PCSC) 2022 (the Serious Violence Reduction Order (SVRO)) and section 11 of the Public Order Act 2023 – and human rights law, most notably the Human Rights Act 1998 (HRA) and ECHR.

As expounded in the ECHR case Gillan and Quinton v the United Kingdom over police searches made under section 44 of the Terrorism Act 2000, ‘coercive powers conferred by the legislation 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 new powers are similarly coercive, therefore may interfere with Article 8 of the HRA and ECHR. According to section 342G of the PCSC Act, there is a maximum of 12 months imprisonment for a summary conviction and a maximum of 2 years for a conviction on indictment, and per section 14 of the Public Order Act, a maximum of 51 weeks’ imprisonment and level 3 fine. Persons subjected to an SVRO are also required to notify the police of their name, home address and any other addresses at which ‘the offender regularly resides or stays’ (PCSC section 342B). This gives rise to the concern of any systematic or permanent monitoring of those individuals, which also seriously interferes with the right to respect for private life.

Furthermore, the right to liberty and the right to remain silent, enshrined in HRA and ECHR Articles 5 and 6, may be interfered with. PCSC section 342E explicitly authorises police to detain persons subjected to an SVRO search. The rights of individuals not subject to an SVRO are also affected, as the police would need to verify whether the person is subject to an SVRO, which conflicts with the right to withhold personal information from the police.

Lastly, the joint committee on human rights rightly states that the protest-related searches ‘almost inevitably result in interference with Articles 10 and 11 ECHR ... [because] [t]he availability and use of this power is likely to have an intimidatory “chilling” effect on protest.’ 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. 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 (or senior rank) reasonably believes any protest-related offences may be committed.

It bears mentioning that in addition to the interference of the aforementioned rights, suspicionless stop and search powers compound discrimination against ethnic minorities, in contradiction to ECHR Article 14. While the government countered that these ethnic groups most benefit from the crime reduction, they also conceded to the fact that the powers are often implemented in a discriminatory fashion, raising the risk that suspicionless searches trap people in cycles of criminalisation and harm.

The inspiration for suspicionless search powers stems from a power that is in its 30th year, section 60 of the Criminal Justice and Public Order Act (CJPOA) 1994. The UK supreme court in Roberts v Commissioner of Police warned in its considerations that ‘[a]ny random “suspicionless” power of stop and search carries with it the risk that it will be used in an arbitrary or discriminatory manner in individual cases.’ However, in light of government plans to introduce legal and policy safeguards in 2014, the court decided that these powers were proportionate and justified to prevent disorder and crime. 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 of suspicionless searches clearly challenges our commitment to the HRA and ECHR. But its very existence does too, as was established during the Roberts case, which makes the UK supreme court's 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. The judgment was particularly disappointing due to the unsubstantiated assertions made by Baroness Hale, that the exercise of section 60 powers was effective due to its deterrent effect, and also that it was ‘mostly young black lives’ that would be saved from a reduction in violence.[1] This is despite the fact that section 60 powers are consistently ineffective in preventing crime.

Between March 2003 and March 2016, the arrest rate for section 60 searches hovered between 2% to 6%. More recently, in 2022, Home Office statistics revealed that the use of section 60 powers only resulted in a 3.4% arrest rate, itself a 0.3 percentage point reduction from the previous year. The court was in no position to offer a criminological rationale for their effectiveness without considering the evidence in the public domain. It is deeply unsatisfactory that Roberts has had the effect of endorsing racially discriminatory policing.

Meanwhile, the ECtHR has long recognised the danger of arbitrary police powers, as well as the risks of direct or indirect discrimination arising from suspicionless based stop and search. In Gillan and Quinton v UK [2010][2], the ECtHR ruled that suspicionless searches under section 44 of the Terrorism Act 2000 violated the applicants’ right to respect for private and family life under Article 8 of the ECHR. Similarly, the ECHR's decision in Beghal v United Kingdom [2019][3] ruled that suspicionless stop and search powers under schedule 7 of the Terrorism Act 2000 (ie applying to searches at the border) amounted to a violation of Article 8 of the ECHR. In Gillan and Beghal, the ECtHR observed that there were insufficient legal safeguards against suspicionless search powers being abused, as well as recognising the risks of such powers being used in a discriminatory manner against ethnic minorities.[4]

In light of this, there is a compelling case to revamp the tried-and-tested approaches to police accountability. It is not enough to merely pore over the operational effectiveness of stop and search, or to chronicle crime reduction through a purely criminological lens. Rather, suspicionless stop and search laws and police practice should be scrutinised in relation to domestic and European human rights standards – under the HRA and the ECHR. In particular, the legality of section 60 needs to be revisited, particularly on its compliance with Articles 5 (right to liberty), 8 (right to respect for private life) and 14 (prohibition against discrimination) of the ECHR. Although Roberts was never challenged on appeal, it remains possible that Strasbourg would assess the legality of section 60 in a more sceptical light than the UK supreme court, especially given the precedents of Gillan and Beghal.

Unfortunately, public discourse around police powers in England and Wales have tended to focus 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.

Consider, for example, the approach of the Police Service for Northern Ireland (PSNI), whose policing board follow a statutory duty under section 3(3)(b)(ii) of the Police (Northern Ireland) Act 2000 to monitor the PSNI's performance in complying with the HRA. In fulfilling this duty, the PSNI has developed a human rights monitoring framework, a code of ethics as well as publishing an annual report on human rights to evaluate the quality of their policing practice.

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 Review – which shone a devastatingly critical eye on the institutional failures of the Met – only made 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.

Footnote references

[1] Roberts, at [41]

[2] Gillan and Quinton v. the United Kingdom, no. 4158/05

[3] Beghal v the United Kingdom, no. 4755/16

[4] See Gillan at [85-87], and Beghal at [42], [97], [109-110]

By Sonder Li and Habib Kadiri

Photo by Polina Kovaleva on Pexels

An abridged version is also published on the Justice Gap website.

Support our work

Any amount we receive helps to support us in our mission and keeps us independent


Sign up to our newsletter

For regular updates on our activities and to learn how you can get involved with us