• In the case of R (Gillan) v Commissioner of Police of the Metropolis [2006] UKHL 12 2006 2 ac 307, it was found that the stop and search method under the Terrorism Act 2000 was legal and valid and did not contravene the European Convention on Human Rights.
  • A test for unlawfulness was formulated by Lord Bingham under the European Convention on Human Rights. It was stated that the exercise of power will be considered legal is it is governed by clear and accessible rules of law and the power has to be arbitrarily used.

Facts of the Case

  • D authorised the police to carry out a stop and search method on members of the public under section 44 and 45 of the Terrorism Act 2000.
  • The Secretary of State confirmed this authorisation.
  •  Cs, a student and a journalist, were stopped and searched by the police in East London during which the police failed to find anything.
  • Cs took legal action against D and the Home Secretary through judicial review of their treatment, the authorisation of the stop and search regime as well as the confirmation.

Issues

  • Is the stop and search regime in contravention with C’s convention rights to liberty, respect for private life, freedom of expression and the freedom of assembly?
  • Could the authorisation and confirmation given by the Secretary of State be deemed as “prescribed by law” under Article 5(1), 5(1)(b), 10(1) and 11(2) and “in accordance with the law” under article 8(2)?

Held by the House of Lords

  • The House of Lords dismissed the appeals and found the authorisation and confirmation by the Secretary of State as lawful and did not contravene the European Convention on Human Rights.

Lord Bingham of Cornhill

  • His Lordship found that the authorisation and confirmation provided by the Secretary of State did not fall foul of the principle of legality given that the powers were exercised under close regulation.
  • “The principle of legality has no application in this context, since even if these sections are accepted as infringing a fundamental human right, itself a debatable proposition, they do not do so by general words but by provisions of a detailed, specific and unambiguous character. Nor are the appellants assisted by the Home Office circular. This may well represent a cautious official response to the appellants’ challenge, and to the urging of Lord Carlile that these powers be sparingly used. But it cannot, even arguably, affect the construction of section 44(3).” [15]
  • “The lawfulness requirement in the Convention addresses supremely important features of the rule of law. The exercise of power by public officials, as it affects members of the public, must be governed by clear and publicly-accessible rules of law. The public must not be vulnerable to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than that for which the power was conferred. This is what, in this context, is meant by arbitrariness, which is the antithesis of legality. This is the test which any interference with or derogation from a Convention right must meet if a violation is to be avoided.” [34]

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