ECtHR, XX and XX v. the United Kingdom, No. 4158/05, 2010

• 2010
• United Kingdom

Topics

Public security

Legal bases

European Convention on Human Rights United Kingdom: The Terrorism Act 2000

Courts

European Court of Human Rights (ECtHR)

Laws

Freedom of Association Freedom of Expression Right to Liberty Right to respect for private and family life

Relevant links

• https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-96585%22]}
• https://hudoc.echr.coe.int/eng-press#{%22itemid%22:[%22003-2985706-3294679%22]}
• https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22002-1158%22]}
• https://www.echr.coe.int/Documents/FS_Terrorism_ENG.pdf

Facts

Under the 2000 Act, a senior police officer may issue an authorisation permitting any uniformed police officer within a defined geographical area to stop any person and search the person and anything carried by him or her, whether or not the police officer has grounds for suspicion. The search takes place in public and failure to submit to it amounts to an offence punishable by imprisonment or a fine or both. The applicants are British nationals. In 2003 they were both stopped and searched by the police, action under sections 44-47 of the 2000 Act, on their way to a protest. The applicant complained that the use of the section 44 power breached their right to liberty and security, right to respect for private life, freedom of expression and freedom of assembly and association.

Legal grounds

Sections 44-47 of the Terrorism Act 2000; Article 5 of the ECHR; Article 8 of the ECHR; Article 10 of the ECHR; Article 11 of the ECHR.

Findings

Considering that the officer’s decision to stop and search an individual was one based exclusively on the “hunch” or “professional intuition”, the risk for discriminatory use of power was a real consideration and the statistics showed that black and Asian persons were disproportionately affected by the powers. In addition, the Court observed that such power could be misused against demonstrators and protestors in breach of Article 10 and 11 of the Convention. In conclusion, the Court considered that the powers of authorisation and confirmation as well as those of stop and search under sections 44 and 45 of the 2000 Act were neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. Therefore sections 44 and 45 act in violation of Article 8 of the Convention.