As the European Court of Human Rights decided, the measures under s44 of the Terrorism Act 2000 are not proportionate. The section allows the authorisation for these unprovoked stop and searches to be given where ever the senior officer considers such procedures ‘expedient’. Expedient means nothing more than advantageous or helpful. This is far too wide of a discretion conferred by the legislation onto a senior officer. He needs no reason to give the authorisation, as long as he thinks allowing such conduct will be useful. But in all situations it could be considered by a senior officer to be useful! The legislation is therefore not legal and should be changed. The court in Strasbourg suggested that the measure would be proportionate if the senior officer thought the authorisation ‘necessary’. This would limit the powers, make the provisions proportionate to the aim and only then would the breach of Article 8 be lawful.

The argument here is that the powers are so wide and offer so much discretion to police officers, be they senior or not, that the legislation is permitting or facilitating the misuse of power. If the regulations were tighter, then yes it would be the misuse of the rule that was illegal not the rule itself. But the regulations are not as tight as you are suggesting.

The reasonable period of time is 28 days^[1]! This is a whole month of a set location being subjected to random stopping and searching. This is not reasonable or practical and does not count as a legislative safeguard. In addition to this, a senior officer can renew the authorisation, rolling the time over^[2]. The legislation sets no limits for this renewal procedure and consequently be renewed forever more. This is not sufficient safeguarding.

1. ^ s46(2) Terrorism Act 2000
2. ^ s46(7) Terrorism Act 2000

To this argument there need only be one statistical response. Number of people stopped nationwide by British Transport Police using s 44: 160,000 Number of people stopped in London by the Metropolitan Police using s. 44: 200,000 Number of people amongst the 360,000 stopped under s. 44 and found to have any terrorist material or links: 0^[1]

Therefore, 360,000 people have had their Article 8 right to respect for private life breached, and no one has had their Article 1 right to life protected. Where is the balancing exercise here?

1. ^ http://conservativehome.blogs.com/centreright/2009/02/todays-statisti.html

The right to a private life is not a small term in Human Rights law; it is not narrowly described and can never be exhaustively listed. A great meaning has been placed upon it. It does not mean merely the right to be left alone. It covers the physical and psychological integrity of a person. It covers how a person feels their privacy is being affected and if they feel they are being intruded upon. It is a matter of personal autonomy. When a police officer is given such wide ranging powers to stop and search anyone in a widely defined area for no reason at all, then this interferes with a person’s autonomy.

The situation in an airport or club environment is totally incomparable o the case before the court at Strasbourg. When you go to an airport, you can reasonably foresee that your bags will be searched. When you go to a venue, you can reasonably foresee that your bags will be searched. The applicants to the Strasbourg court could not reasonably foresee that they would have been stopped by police officers to be searched merely or going into a public space with their personal belongings.

Additionally, if people are unhappy with being searched at a venue or airport, they can refuse and leave, there is a matter of choice. The two applicants rightly pointed out that upon being approached by police they could not just turn around and leave. Therefore Lord Bingham was totally wrong in using these “analogies”.