Stop and search powers under review as European Court reject UK appeal

The European Court of Human Rights has rejected the United Kingdom’s application to appeal its decision in a recent finding that stop and search powers enacted as part of anti-terrorism legislation breached human rights law.

In January 2010 the European Court held that section 44 of the Terrorism Act 2000 (the broad police power to stop and search without suspicion) violates the right to respect for private life guaranteed by Article 8 of the Convention on Human Rights (Gillan and Quinton v. UK 4158/05 [2010] ECHR 28 (12 January 2010)). The claimants received £500 each by way of compensation.

Bloody Sunday report to have a chilling effect on future inquiries?

The controversy generated by the Bloody Sunday Inquiry continues to generate much comment and conjecture.

Lord Saville himself is to resign his judicial post in the Supreme Court early, although he was only a year away from retirement at age 75.

The most pressing concern for many of the relatives of those who were killed will be riding the momentum in order to push for prosecutions; either for the deaths themselves (fairly unlikely given the length of time which has elapsed since the killings) or perjury. Whilst public inquiries are not supposed to lead directly to prosecutions, at least not as a result of a person’s self-incriminating evidence, they can led to charges if someone is found to have lied under oath. The views of the families of the dead appear to be mixed in relation to this possibility.

Muslim area CCTV cameras to be covered by plastic bags [updated]

The BBC report that plastic bags are to be put over “scores” of surveillance cameras in Birmingham following allegations that they deliberately targeted Muslim areas.

Update 19/06/10: Campaigners and the Guardian say police are now facing an investigation for failing to disclose the true purpose of the cameras

The decision marks a victory for campaigners who threatened to bring a judicial review challenging a surveillance project that uses 150 automatic number plate recognition  cameras to monitor the roads in two predominantly Muslim areas of Birmingham. We posted earlier this week on the issue, sparked by a Guardian investigation:

The newspaper’s investigation has led to considerable public criticism of the scheme and the threat of legal action. The criticisms have concerned three main areas.First, it has been alleged that the scheme constitutes an unacceptable infringement of civil liberties. Local MPs Roger Godsiff (Labour) and John Hemming (Lib Dem) have attacked it on these grounds, with the latter said to be seeking the support of Deputy Prime Minister Nick Clegg. Second, there have been complaints about a lack of consultation despite the fact that Project Champion is reported to be undergoing tests with the intention of going live in August.

The cameras will not be used “until a consultation has been carried out“.

• Legal challenge to surveillance of Muslim areas

Legal challenge to surveillance of Muslim areas

The Human Rights organisation Liberty is threatening to bring a judicial review challenging a surveillance project that uses 150 automatic number plate recognition (“APNR”) cameras to monitor the roads in two predominantly Muslim areas of Birmingham.

Update 18/06/10 – Muslim area CCTV cameras to be covered by plastic bags [updated]

The Guardian reports that the plan, Project Champion, is funded by the Association of Chief Police Officer’s Terrorism and Allied Matters fund, which is intended to “deter or prevent terrorism or help to prosecute those responsible”. Project Champion provides for three times as many APNR cameras in the suburbs of Sparkbrook and Washwood Heath as are present in Birmingham City Centre. According to the Guardian: “The cameras form “rings of steel”, meaning residents cannot enter or leave the areas without their cars being tracked. Data will be stored for two years.”

Home Secretary on offensive as police admit anti-terror mistakes

The Home Secretary has pledged to conduct an “urgent review” of police stop and search powers as it has been revealed that thousands of searches may have been conducted illegally.

Teresa May, the new Home Secretary, has gone on the offensive with a Guardian editorial blaming the previous Government and promising to fix the problem urgently. She says “It has been clear for a decade that the last government held our civil liberties cheap. They introduced the powers that have been abused 10 years ago, and then sat back as they were used more and more frequently.” She is reportedly “incandescent” over the report.

Bloody Sunday Inquiry findings leaked, killings were "unlawful" [updated]

The Guardian claims to have access to key findings of the long awaited inquiry into the Bloody Sunday killings of 30 January 1972, and some of the soldiers implicated may now face prosecution almost 40 years after the event.

The Inquiry was set up to investigate the events surrounding a march in the Bogside area of Derry in 1972 when 29 protesters were shot by British soldiers, leading to 13 deaths.

Lord Saville’s report, which marks the conclusion of the longest and most expensive public inquiry in British history, “will conclude that a number of the fatal shootings of civilians by British soldiers were unlawful killings“. However, the Guardian has not revealed where its information originates from, or how the shootings were “unlawful”, which could mean a number of different things.

The report is to be published on Tuesday 15 June at 3pm. The Inquiry’s website, which also has transcripts of the hearings, can be found here.

Rules on intercept evidence not breach of human rights, say European Court

KENNEDY v. THE UNITED KINGDOM – 26839/05 [2010] ECHR 682 (18 May 2010) – Read judgment

The European Court of Human Rights has held that the UK’s Regulation of Investigatory Powers Act (RIPA) does not breach Article 8 of the European Convention on Human Rights, the right to private life or Article 6, the right to a fair trial. The judgment is timely, with the new Government debating at present whether intercept evidence should be allowed to be used in court.

The case has a long and intriguing history. On 23 December 1990, Mr Kennedy was arrested for drunkenness and taken to Hammersmith Police Station. He was held overnight in a cell shared by another detainee, Patrick Quinn. The next day, Mr Quinn was found dead with severe injuries. Mr Kennedy was charged with his murder. He alleged that the police had framed him for the murder in order to cover up their own wrongdoing. He was subsequently was found guilty of the murder of Mr Quinn and was sentenced to life imprisonment.

Claims against the police still difficult, and no help from human rights law

Moulton v Chief Constable of the West Midlands [2010] EWCA Civ 524 (13 May 2010) – Read judgment

The Court of Appeal has rejected an appeal by a man acquitted of rape as well as his argument that the law of malicious prosecution should be changed in order to bring it into line with Article 5 of the European Convention on Human Rights, the right to liberty.

In 2000, Kirk Moulton spent Christmas in jail due to administrative errors by the police. However, unlike in other jurisdictions it is not possible in England to sue the police for damages for negligence. Claims for ‘malicious prosecution’ are possible, but they are notoriously difficult to prove as the aggrieved person has to show the police acted with malice. Mr Moulton’s lawyers argued that the lack of a remedy for police maladministration meant that English law ran contrary to human rights law. But the court, whilst showing sympathy, rejected the argument. As a result the bar for claims against the police remains dauntingly high.

Sex offenders' lifelong living and travel restrictions were breach of human rights

R (JF (by his litigation friend OF)) & Anor v SSHD [2010] UKSC 17

(Read Judgment or Supreme Court press summary)

The Supreme Court has unanimously ruled that lifelong requirements for sex offenders to notify the police when they move house or travel abroad are a breach of Article 8 of the European Convention on Human Rights. 24,000 former offenders will potentially be affected by the decision.

Under section 82  of the Sexual Offences Act 2003 all persons sentenced to 30 months’ imprisonment or more for a sexual offence become subject to a lifelong duty to keep the police notified of where they are living and when they travel abroad. Crucially, there is no right to a review of the necessity for the notification requirements.

The Respondents were convicted sex offenders. Both challenged the notification requirements by way of judicial review, on the basis that the requirements were a disproportionate manner of pursuing a legitimate aim of preventing crime and therefore breached their rights under Article 8.

Lord Philips gave the leading judgment. He emphasised that the question (as in the case of all human rights claims involving a “qualified” right in general and Article 8 in particular) was one of proportionality, and that the correct test, as had been set out in previous decisions, was:

whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective (para 17)

The Court went on to discuss UK and European authorities, and in particular referred to the Marper judgment, which we discussed earlier this week in relation to the retention of DNA samples (para 31). The European Court of Human Rights had been particularly concerned that in cases involving DNA there was no provision for independent review, as was the case with the notification requirements in this appeal.

The Court were concerned about risks of disclosure to third parties inherent in offenders having to visit police stations to report. They said:

Landmark stop and search ruling

Today the European Court of Human Rights ruled that section 44 of the Terrorism Act 2000 (the broad police power for stop and search without suspicion) violates the right to respect for private life guaranteed Article 8 of the Convention on Human Rights.

See the full story on the Liberty Website

Read the Times Law Report