Response to the Secretary of State for Northern Ireland’s Consultation on the ‘Code of Practice for Exercise of Stop and Search under the Terrorism Act 2000’

1.  The Northern Ireland Human Rights Commission (‘the Commission’) pursuant to Section 69(3) of the Northern Ireland Act 1998, advises the Secretary of State for Northern Ireland of legislative and other measures which ought to be taken to protect human rights. In accordance with this function the following statutory advice is submitted to the Northern Ireland Office on the ‘Code of Practice for Exercise of Stop and Search under the Terrorism Act 2000’ (‘the proposed Code’). The Commission notes that the Home Office is consulting on a separate draft Code of Practice for the exercise of these powers in England, Wales and Scotland.

2.  The Commission’s advice is premised on the international human rights treaties to which the UK Government has bound itself through ratification. In addition, reference is made to the European Convention on Human Rights (ECHR) and the further domestic effect accorded to it by the Human Rights Act 1998.

Reference to human rights

3.  The proposed Code does not make reference to the human rights standards to which the UK is bound under international law. In particular, it contains no mention of the relevant provisions contained in the UN International Covenant on Civil and Political Rights (ICCPR), the UN International Convention on the Elimination of All Forms of Racial Discrimination (CERD), the UN Convention on the Rights of the Child or the UN Convention on the Rights of Persons with Disabilities (CRPD). Similarly, there is inadequate reference to the European Convention on Human Rights (ECHR).

4.  Amendments to the Terrorism Act were introduced as a consequence of the decision of the European Court of Human Rights in Gillan and Quinton v UK.[1] Here, the Court held that the legislation was neither sufficiently circumscribed nor subject to adequate safeguards against abuse and therefore breached the legal certainty test within the right to privacy in Article 8 ECHR.[2] The right to privacy is also protected in Article 17 ICCPR.

5.  In Gillan, the Court also gave recognition to the risk that the power could be misused against demonstrators or protestors in breach of the right to freedom of expression in Article 10 ECHR and the right to freedom of peaceful assembly in Article 11 ECHR;[3] rights that are also protected by Articles 19 and 21 ICCPR respectively. In addition, the Court left open the possibility that the right to liberty and security of person in Article 5 ECHR could be engaged due to the coercive nature of the powers and the serious repercussions for an individual who fails to comply.[4] This right is similarly guaranteed in Article 9 of the ICCPR while liberty of movement is protected in Article 12 ICCPR.

6.  Furthermore, concern was expressed in Gillan for the ‘very real consideration’ that stop and search powers could be exercised in a discriminatory manner against specific ethnic or racial groups.[5] Collective action against a group of people because of their ethnicity has been considered a violation of the prohibition on degrading treatment in Article 3 ECHR;[6] a prohibition also entrenched in Article 7 ICCPR.

7.  The omission of human rights standards are of particular note where the proposed Code has used the terms ‘fundamental principles’ and ‘protected characteristics’ instead of a direct reference to human rights as stipulated in the international human rights treaties. Similarly, paragraph 5.1 articulates the principle of non-discrimination but does not mention that States are duty bound to this standard in respect of ICCPR rights under Article 2 ICCPR and in regard to ECHR rights under Article 14 ECHR. Furthermore, paragraph 5.3 of the proposed Code refers to the principle of liberty of person which, as mentioned above, is entrenched in international human rights law through Article 9 ICCPR and Article 5 ECHR. Finally, there is no clear articulation of the right to privacy as protected by Article 17 ICCPR and Article 8 ECHR.

8.  The Commission advises that in the final draft paragraphs 5.1 and 5.3 should be amended so as to articulate clearly the human rights standards engaged by an exercise of a stop and search power. In addition, any final code of practice should build upon the current content of paragraph 4.1 to lay out in greater detail how the concerns of Gillan will be addressed.

Search by a person of the same sex

9.  There is no restriction in the proposed Code on an officer of the opposite sex removing headgear worn for religious purposes. The current legislative protection under section 43(3) of the Terrorism Act 2000 that a section 43 search of a person must be carried out by an officer of the same sex will be removed by clause 60(1) of the Protection of Freedoms Bill. Paragraph 9.13 of the proposed Code downgrades the protection to state a preference for searches involving the removal of more than an outer coat, jacket, gloves, headgear or footwear, to be made by an officer of the same sex.

10.  Many people cover their head or face for purposes of religious adherence and in particular for maintaining modesty toward the opposite sex. The right of everyone to manifest his or her religion in practice is protected by Article 18 ICCPR and Article 9 ECHR. Any interference with this right must be proportionate to a legitimate aim pursued and be in accordance with the law. In R and Thompson v Secretary of State for the Home Department, the UK Supreme Court quoted the proportionality test as whether:

(i) the… objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the… 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.[7]

11.  Although the ‘notes for guidance’ provide in paragraph 4 that the removal of religious headgear should ‘where practicable’ be in the presence of an officer of the same sex and out of sight of anyone of the opposite sex, paragraph 4.4 of the proposed Code clearly states that the notes for guidance are not provisions of the Code. The Commission is aware of no justification as to why, give the importance of the rights at play, such a provision is not within the terms of the proposed Code itself where it would have more persuasive value.

12.  The Commission advises that absence in the proposed Code of a ‘preference’ for an officer of the same sex to remove headgear, which is worn for religious purposes, may go beyond what is necessary to achieve the aim of protecting society from terrorism and therefore be a disproportionate interference with the right to manifest one’s religion.

Authorisations under section 47A

13.  The Commission advises that in their present state, the amendments to the Terrorism Act and the proposed Code continue to risk providing insufficient safeguards to prevent the stop and search powers from being exercised arbitrarily. It also notes that authorisations can only be published retrospectively, if at all, and presuming that the rationale is intelligence-led, the reasoning is unlikely to be set out and therefore effective challenge will be difficult.

14.  Article 8(2) ECHR provides that there shall be no interference with the right to privacy except as is ‘in accordance with the law’. In Gillan the Court held that an overly broad grant of discretion to the authorising police officer created a clear risk of arbitrariness and so could not be said to be in accordance with the law. On this issue the Court stated:

The law must be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct … the law must indicate with sufficient clarity the scope of any … discretion conferred on the competent authorities and the manner of its exercise.[8]

15.  The Commission advises that section 7 of the proposed Code could include as an additional safeguard in paragraphs 7.18 – 7.24, a requirement that the authorising officer demonstrate to the Secretary of State why an alternative police measure which would constitute a lesser interference with the right to privacy is inadequate.

16.  While the Commission notes and welcomes that under the terms of paragraph 7.27 any curtailment on the extent of the authorisation may be done, paragraph 7.27 should make clear that any extension of an authorisation, whether that be in terms of geography or timeframe, should be treated as though it is a new authorisation.

Conduct of searches

17.  To satisfy the Gillan legal certainty test for any interference with the right to privacy, paragraph 9.18 of the proposed Code should provide to the officer guidance on what to do if it is not possible to communicate with the person to be searched.

Racial profiling

18.  The proposed Code should reflect the fact that racial profiling should never be the primary basis for the exercise of a power to stop and search. In 2009, the UN Human Rights Committee held that Spain had violated Article 26 ICCPR when read in conjunction with Article 2(3) ICCPR because a police officer had singled out a woman for an identity check on the ground of her racial characteristics. Article 26 stipulates that ‘all persons are equal before the law and are entitled without any discrimination to the equal protection of the law’ whilst Article 2(3) requires that the State provide an effective remedy for any such violation. On the issue of racial profiling the Committee stated,

[Checks should not] be carried out in such a way as to target only persons with specific physical or ethnic characteristics. To act otherwise would not only negatively affect the dignity of the persons concerned, but would also contribute to the spread of xenophobic attitudes in the public at large and would run counter to an effective policy aimed at combating racial discrimination.[9]

19.  Furthermore, the UN Committee on the Elimination of Racial Discrimination has recently observed that the use of stop and search powers in the UK disproportionately affects members of minority ethnic groups.[10] CERD places a duty on States to guarantee to everyone equal treatment before any organ administering justice (Article 5) and to pursue without delay a policy of eliminating racial discrimination (Article 2). In General Recommendation No.31, the Committee stated,

States parties should take the necessary steps to prevent questioning, arrests and searches which are in reality based solely on the physical appearance of a person, that person’s colour or features or membership of a racial or ethnic group, or any profiling which exposes him or her to greater suspicion.[11]

20.  Finally, the Committee has recommended that all stops are properly recorded, whether or not leading to searches.[12] In accordance with the recommendation of the Committee, the Commission advises that a requirement to record all persons ‘stopped’ should be added to paragraph 10.1 and further, that paragraphs 6.3, 10.4 and 11.3 are expanded to contain a provision which requires the officer to record the basis upon which the decision to stop and search was made in addition to stating the power under which the stop and search was conducted.

21.  The UN Committee on the Elimination of Racial Discrimination has specifically requested that the government provide it with ‘detailed statistical data disaggregated by ethnicity and community origin’ on the use of stop and search powers.[13] At present, the Police Service of Northern Ireland (PSNI) publishes the number of people stopped and searched under the various legislations and the district within which it occurred but does not publish details on ethnicity or community background. While the proposed Code emphasises the importance of ensuring searches are not carried out on the basis of stereotypes, it does not specify that details of ethnicity and community background be recorded.

22.  The Commission therefore advises that a requirement to record the ‘ethnicity’ and ‘community background’ for any person either stopped or stopped and searched should be added to paragraph 10.4.

23.  The right of access to information is an essential element of the right to freedom of expression as enshrined in Article 19 ICCPR and Article 10 ECHR. In General Comment No. 34, the UN Human Rights Committee further elucidates:

To give effect to the right of access to information, States parties should proactively put in the public domain Government information of public interest. States parties should make every effort to ensure easy, prompt, effective and practical access to such information.[14]

24.  In this regard, paragraph 13.3 states that stop and search statistics should be ‘regularly published’. This is vague language that does not assist with the requirement of legal certainty. At present, the PSNI stop and search statistics are published quarterly. The Commission therefore advises that paragraph 13.3 should be altered to reflect the current practice by stating a ‘quarterly’ time period and further, that section 13 should require the ‘ethnicity’ and ‘community background’ breakdown to be published within the PSNI stop and search statistics.

Children and vulnerable adults