The law should not become “over precious” about human rights, says the Divisional Court
8 November 2011
David Thomas Howarth v Commissioner of Police of Police of the Metropolis  EWHC 2818 (QB) – read judgment
Protestors have to put up with “sensible and good natured” controls by the authorities as a limitation on their rights to free expression and assembly, the Divisional Court has ruled.
A claim for judicial review brought by an environmental protestor (“Mr Howarth”) against the Commissioner of Police of the Metropolis, challenging the lawfulness of a personal search of Mr Howarth carried out by a Metropolitan Police officer on 16 October 2010. The search was carried out on a railway train on which Mr Howarth was travelling in order to reach a site of intended public protest against an oil company. On the day in question Mr Howarth travelled with four friends from his home in the West Midlands to London to attend a demonstration organised by a body of persons calling themselves “Crude Awakening”, whose principal object is to campaign against the activities of those involved in the oil industry. The officer who conducted the search stated that he was looking for articles such as chalk, spray paint or highlighters that had been used in similar protests. He found no relevant articles.
Mr Howarth maintained that the search of him on this occasion was unlawful and he sought a declaration that the officer had acted in breach of the relevant police powers (the Police and Criminal Evidence Act 1984 , or PACE). He also claimed declarations that the search violated his rights under Article 8, Article 10 and Article 11 of the Convention, constituting unlawful interference with his private life, his freedom of expression and freedom association. He also claims damages for breaches of section 6 of the Human Rights Act 1998, which applies to acts of public authorities which interfere with Convention rights, and for assault at common law.
In particular the claimant submitted that the search was unlawful, within the terms of Section 1(3) of PACE, because the officer who conducted the search did not in fact have any grounds to suspect him of being in possession of a prohibited article and merely did what he was told under orders from a superior. As for the Convention rights, whilst he accepted that the interferences were in the interests of preventing crime and thus a “legitimate aim” within the Convention, they were nevertheless were disproportionate.
Both declarations refused. There had been no breach of Section 1 PACE had been breached. In McCombe J’s view (with which Hallett LJ agreed), the relevant officer did reasonably suspect that if he and his colleagues carried out the search prohibited items would be found on one or more of the protestors. As for the claim under Article 8, there is something of a divide between the domestic courts and the Strasbourg Court on the applicability of this provision in these circumstances. In Gillan v The Commissioner  2 AC 307 Lord Bingham expressed his doubts that an “ordinary superficial search of the person” can be said to show a lack of respect for private life:
intrusions must reach a certain level of seriousness to engage the operation of the Convention, which is, after all, concerned with human rights and fundamental freedoms, and I incline to the view that an ordinary superficial search of the person and an opening of bags, of the kind to which passengers uncomplainingly submit at airports, for example, can scarcely be said to reach that level.”
The Strasbourg Court on the hand takes a far more sweeping view:
the use of coercive powers conferred by the legislation to require an individual to submit to a detailed search of his person, his clothing and his personal belongings amounts to a clear interference with the right to respect for private life. (Gillan and Quinton v United Kingdom (2009)
The search powers of security personnel at airports were qualitatively different, said the Court. An air traveller may be seen as consenting to such a search by choosing to travel. He knows that he and his bags are liable to be searched before boarding the aeroplane and has a freedom of choice, since he can leave personal items behind and walk away without being subjected to a search. The search powers under PACE are different – an individual can be stopped anywhere and at any time, without notice and without any choice as to whether or not to submit to a search.
McCombe J was of course bound by the House of Lords view of the matter. In any event, whilst he was willing to accept that the exercise of the right to freedom of assembly and exercise of the right to free expression are often, in practice, closely associated, and recognised the “fundamental importance” of those rights, nevertheless he was aware of the need to prevent the law in this area becoming “over precious” about minor and indirect infringements of the rights of privacy, assembly and expression, “which are the price today of participation in numerous lawful activities conducted in large groups of people”.
If passengers in airports cannot complain (although they would dearly like to) about the increasingly inconvenient and intrusive measures applied to them in the interests of security, it is hard to see why protestors should be completely immune from such preventative measures. Indeed, a starker question may be asked at this point; why should a protest be a privileged act in terms of Convention protection, and air travel not? Not for the ordinary tourist or business passenger say, who has “consented” to the unpleasant intrusions of the security protest, but a medical team for example accompanying a critically ill patient to a destination hospital?
The difference lies, not in the matter of implied consent (because of course a passenger has no wish to be blown up) but in the focus of the traveller’s actions, which is to get from A to B, as opposed to the protester’s, which is to make a point. Stop and search powers are said not to interfere with the former’s aim, but are said to dampen and therefore deter the latter. Consider this when you are next shuffling in an airport security queue, for the third or fourth time on a short journey.
This comparison may be trivial, but efforts to draw down the full panoply of Convention human rights on minimal privacy intrusions is no less a trivialisation.
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