Court of Appeal: Failure to record basis for stop and search breached Article 8 ECHR
A man who was repeatedly stopped and searched under the Justice and Security (NI) Act 2007 has been granted a declaration that the PSNI, in failing to record the basis for searches carried out in 2013, acted in breach of the man’s right to respect for private and family life under Article 8 ECHR.
The appellant, Steven Ramsey, was stopped and searched by members of the PSNI over 150 times between 2009 and 2013. He submitted that the only information available as to why he was stopped was from the officers involved in the searches, who stated that he was stopped because of “suspected dissident republican links” and “as a result of confidential briefings”.
In the High Court in 2014 ( NIQB 59), Mr Ramsey brought an application for judicial review, challenging the legality of the stop and search powers in Section 24 and Schedule 3 of the Justice and Security (NI) Act 2007. He sought a declaration that the powers were incompatible with Article 8 ECHR. Lord Justice Seamus Treacy dismissed the application for judicial review.
On appeal to the Court of Appeal, Mr Ramsey raised arguments which were not raised or adjudicated in the High Court – thus the Court of Appeal directed an amended Order 53 Statement and remitted the matter back to the High Court.
In the High Court in 2018 ( NIQB 83), Lord Justice Treacy said that the PSNI was acting in breach of the Code of Practice (enacted following the Canning decision ( NICA 19)) in failing to record the basis of the use of the power. Notwithstanding that finding, he dismissed the application for judicial review.
Court of Appeal
In the within judgment, the Court of Appeal considered Mr Ramsey’s appeal against the High Court’s ruling in 2018.
Mr Ramsey contended that the:
- Authorisation regime of the Justice and Security (NI) Act 2007 did not satisfy the quality of law test;
- Legislative scheme of the Justice and Security (NI) Act 2007 including the Code of Practice did not contain adequate safeguards to prevent abuse/the arbitrary exercise of power and failed the quality of law test;
- Failure to monitor the use of the power under the Justice and Security (NI) Act 2007 to stop and search on the basis of perceived religious or political opinion was in breach of the Code of Practice and contrary to Article 8 ECHR in that it failed to prevent arbitrariness, failed the quality of law test and was disproportionate; and
- Failure to record the basis of the search was contrary to the Code of Practice and was in breach of the appellant’s Article 8 rights.
Delivering the judgment of the Court, Lord Chief Justice Declan Morgan set out the two broad circumstances in which the power to stop and search without reasonable suspicion can be exercised:
- Where the officer considers there is something about the individual’s conduct giving rise to a suspicion that the individual may have munitions or wireless apparatus;
- Where the officer has been briefed with information, leading him or her to exercise the power. This can arise in circumstances where there is a basis for thinking there may be a terrorist attack but no information on the vehicle involved and or the means by which it may be carried out – in such circumstances, checkpoints may be set up to randomly stop vehicles in order to disrupt the terrorist activity.
Section 40 of the Justice and Security (NI) Act 2007 provides for appointment of a reviewer to prepare an annual report on the operation of the Act and procedures adopted by the General Officer Commanding Northern Ireland. From 2011 to 2018, the reviewer indicated that the principal threat in NI came from dissident republicans. Sir Declan explained that the reviewer is the principal check on the prevention of any abuse of the briefing power, and that it was clear from all the reports that the reviewer was satisfied with the application of arrangements since the implementation of the Code of Practice.
Considering the requirement in the Code of Practice to monitor community background, Sir Declan explained that the code did not specify any particular methodology for monitoring or supervision of the exercise of the power in order to guard against the risk of discrimination. However, he was satisfied that the PSNI had a duty to devise a methodology of enabling such monitoring and supervision.
On the issue of information which must be included in the record of the search, Sir Declan said the trial judge was correct to reject the submission that it was only the fact of authorisation that needed to be recorded. The Code of Practice requires that the information recorded on the occasion of each search should include the basis for the search.
Looking at the scheme “as a whole”, Sir Declan was satisfied that there were sufficient safeguards to protect against arbitrary interference. He said that an important aspect of the process of monitoring and supervision of the exercise of power was the requirement for the PSNI to identify the basis for the exercise of the power, and to include this in the information recorded. In those circumstances, Sir Declan said the failure to record the basis for searches carried out on Mr Ramsey in the record prepared at the time of the search or shortly thereafter, amounted to a breach of his rights under Article 8 ECHR.
© Irish Legal News Ltd 2021