Stop and Search: legal certainty and dodgy consultation outcomes, two judgements of broader note

Last week Justice Treacy delivered judgements in two judicial reviews relating to the use of emergency-type stop and search powers under the Justice and Security (Northern Ireland) Act 2007, which will be of broader interest to other policy areas too. The first judgement, related to the legal certainty test under human rights law, i.e. whether the powers now had sufficient safeguards to prevent them being exercised in arbitrary and discriminatory manner, which has broader relevance for other widely drafted public order/parading etc police powers. The second judgement related to the NIO consulting on a draft Code of Practice but then inserted a detrimental provision in the final Code that conflicted what had actually been consulted on. It was this issue (which related to providing records to persons searched) which was found to be unlawful, in the context of a ‘fundamental change’ not having been consulted on.

By way of background the type of stop and search powers under question are not those found in the ordinary criminal law which requires the threshold of individual ‘reasonable suspicion’ but rather emergency type powers which do not. The differences are set out in a Stop and Search Rights Guide produced by CAJ. The infamous ‘section 44’ of the Terrorism Act 2000 contained such a power which was exercised in both NI and Great Britain and at its height was used more than 250,000 times in a single year. It was the widespread and arbitrary use of this power, was found to be unlawful by the European Court of Human Rights in 2010 in the case of Gillan & Quinton v UK. On the grounds it wasneither sufficiently circumscribed nor subject to adequate legal safeguards against Abuse.”The UK government responded by suspending section 44, and the PSNI shifted instead to rely on a similar power in JSA 2007, which only applies in this jurisdiction. Section 44 was ultimately repealed by the Protection of Freedoms Act 2012 which introduced a replacement ‘non-suspicion power’ under what is now sections 47A-47AE of the Terrorism Act 2000, which is more limited and had some additional safeguards, including a tighter ‘authorisation’ regime, whereby a senior police officer must at first preauthorise the geographical area the power can be used. No authorizations were made to use this power anywhere in 2011 or 2012, and at the time of writing of the last Independent Reviewer’s (David Anderson QC) report, the power still had not been used once in Britain, but had been used by the PSNI in 2013.

In November 2012 CAJ published our report ‘Still Part of Life Here’ raising concerns about the manner in which the non-suspicion JSA power was being used in Northern Ireland, including issues of inappropriate and arbitrary use.  Among the matters covered in the CAJ research were issues which have arisen further to a switch from paper to electronic recording and the related ongoing absence of ethnic monitoring inclusive of community background in the recording procedure. CAJ concluded that the JSA powers were still unlikely to be compatible with the ECHR even after the changes introduced under the Protection of Freedoms Act 2012. In particular CAJ singled out the absence of a binding Code of Practice on the JSA powers which the Secretary of State is empowered to issue under s34 JSA. The report (p22) stated “despite having been used for five years there is still no Code of Practice for the JSA… This means there is no binding policy framework beyond the legislation defining and restricting the scope of usage of the powers”.  Noting that this was a unique situation in relation to stop and search powers a central recommendation of the research was for the NIO to urgently consult on a Code. It is within the Code of Practice that binding record keeping duties can be set out. Straight after this the NIO published a draft Code of Practice on the exercise of the powers for consultation in December 2012, which submitted a written response to.   

On 9 May 2013 the Court of Appeal in Northern Ireland delivered its judgment in Fox, McNulty and Canning’s applications for judicial review [2013] NICA 19, holding the JSA powers “cannot be properly exercised in the absence of a valid and effective code of practice which ensures Article 8 compliance” noting “the kind of safeguards against potential abuse or arbitrariness envisaged by the Strasbourg case law” were not present in the absence of a Code of Practice which effectively regulated their use. As a result of the judgement the NIO rushed through the Code of Practice using an urgent procedure and brought it into force for 40 Parliamentary days on the 15 May 2013, days after the judgement. Whilst CAJ had envisaged this may have been an interim Code of Practice brought in whilst full consideration was being given to a finalised code following the consultation, the NIO clarified to us the Code would in fact become permanent which it did, and is available here .

On 20 June 2013 that the NIO published a Summary of Responses to the Consultation. This responds (paras 9-11) to issues around record keeping and equality monitoring raised by CAJ, the Human Rights Commission and the Human Rights and Policing Standards Committee of the Policing Board. The NIO response makes reference to existing recording practice and additional general provisions in relation to avoiding discrimination being added to the Code. However, no explanation is given as to why there is no explicit inclusion of ethnic monitoring requirements within the mandatory elements of record keeping set out under paragraph 8.75 of the JSA Code, despite their inclusion being standard in equivalent Codes in Great Britain. There is also no explanation in the Summary of Responses document as to why paragraph 8.78 in the final Code removed a provision from the draft Code that stipulated PSNI officer must provide a copy of the record at the time of the stop and search when able to do so. It is this particular action which became relevant to the Judicial Review. The Summary of Judgement records:

Emmet McAreavey (“the applicant”) told the court that he had been regularly been stopped and searched by the police under the powers contained in the 2007 Act.  Until approximately January 2012 he had been provided with a written docket after each incident confirming the power exercised.  Since then, he has not been provided with any record (except on some occasions when he was given a partly completed information card) and the PSNI officers have recorded the details on a Blackberry.

The applicant challenged the PSNI’s decision not to provide him with immediate written documentary evidence and the requirement for him to attend in person at a police station to obtain a record of the search.  He also challenged the failure before 15 May 2013 of the Secretary of State to implement a Code of Practice on the use of the stop and search powers, and the actual implementation from this date claiming that there had been no consultation on the final draft.

In response Counsel for the NIO contended that the final code did not remove an essential safeguard and in the absence of fundamental change there was no duty to re-consult.  Mr Justice Treacy found however that the “failure to re-consult in respect of the fundamental changes to paragraph 8.78 in the final Code was unlawful” noting that one of the major purposes of the code was to ensure the powers were ECHR compliant, and the nature and extent of provisions intended to give essential safeguards were some of the most fundamental to be consulted upon, stating: “Whatever the subjective intention of the [PSNI and the Secretary of State] in putting together the draft Code, objectively and from the perspective of interested parties, the provision of on the spot written evidence went to the level of safeguards attending the various powers and was therefore fundamental.  Truncating the nature and extent of the safeguards in the Code was clearly a fundamental change and one which in the interests of fairness needed to be consulted upon.”

The previous day a Judicial Review also the JSA stop and search powers examined the general question of whether there were “insufficient safeguards against arbitrariness to render the power compatible with the ECHR.” The applicant Steven Ramsey, who had been stopped over 100 times under the powers, specifically questioned whether the ‘authorisations’ process to use the power was sufficient to render it compatible with the ECHR. The authorisation process was brought in 2012, and the judge stated that it was clear that there had in fact been continuous authorisations in place for the whole of Northern Ireland since this time. There was also contention that the Code of Practice was a sufficient safeguard to render the power human rights compliant. In this instance the court found that the code and other oversight were sufficient safeguards against abuse and that the powers were not being exercised unlawfully. The proposition that law so widely drafted to risk arbitrary or discriminatory application can be remedied by a code of practice, would appear to have quite significant implications for other such police powers. An article in Just News last August (p6-7) examined a number of public order and parades powers in this context.

Another issue touched upon was the provisions for ethnic monitoring (which in NI would need to include community background). The summary of judgement states that the JSA code does have provisions urging officers to “avoid racial or religious profiling when exercising their powers and supervising officers are urged to monitor the use of the powers by compiling comprehensive records.” Uniquely however the Codes of Practice in Northern Ireland does NOT have binding ethnic monitoring requirements which oblige record keeping on same. This contrasts with the Codes of Practice in Great Britain which do (‘Terrorism Act 2000, Code of Practice (England, Wales and Scotland) for the Authorisation and Exercise of Stop and Search Powers relating to Section 47A of Schedule 6B to the Terrorism Act 2000’ Home Office, 2011, paragraph 5.4.1; ‘Police and Criminal Evidence Act 1984 Code A Code of Practice for Exercise by Police Officers of Statutory Powers of Stop and Search’ Home Office 2010, paragraph 4.3(a)). It is not clear therefore how supervising officers are to compile comprehensive records if the data is not gathered.

Clearly such data could be gathered by both persons who offer self-identification in filling in a monitoring form and by officer perception. In addition to CAJ, both the Human Rights Commission and Policing Board, the latter in their thematic review on stop and search powers, have pressed the PSNI to monitor the use of stop and search powers, including on community background. CAJ had stated in our Still Part of Life Here research: “There has been debate as to whether it is appropriate or if there is too much sensitivity in Northern Ireland to asking individuals to record their community background. However, such concerns would appear little different to those expressed and discounted in early debates on whether it was appropriate to gather data on other aspects of ethnicity during stop and search for the purpose of preventing discrimination. A similar self defining tick box form post-stop and search/question could assist in gathering such data.”

Mr Justice Treacy in the judgement “commented that the exercise of the impugned powers would be even more intrusive if it were to be suggested that questions be directed by the police on these issues to the person they had stopped.  He said, however, there is no reason why, if there is to be effective monitoring, that details of the perceived religion/political opinion should be omitted or not recorded especially as in many cases the exercise of powers will be intelligence driven and the perceived religion/political opinion is likely to be known by the police.” The Policing Board in its recommendation is clear that this should not entail a requirement to provide information on community background. Rather self-identification is optional. The Board gave the PSNI three months from the publication of the thematic review (October 2013) to consider how to include the recording of community background on stop and search and then report back on the statistics after the first 12 months of monitoring and, all being well, should first be available for this current year.