R (on the application of Roberts) v Commissioner of Police of the Metropolis and another

Properly executed searches for knives and other offensive weapons under designated section 60 powers (which do not require reasonable suspicion) are lawful and compatible with article 8

S60 of the Criminal Justice and Public Order Act 1994 confers a power on an officer over the rank of inspector to order that a designated locality, for a period not exceeding 24 hours, be subject to searches of persons or vehicles by constables looking for offensive weapons or dangerous instruments. These searches do not require suspicion on the part of the constable prior to carrying out any given search. In certain circumstances the authorisation can be extended for a further 24 hours by an officer above the rank of superintendent.

This case relates to a search of the Appellant's handbag which took place on the 149 bus in Tottenham shortly after 1pm on 9th September 2010. An authorisation had been made for searches between 1pm on that day and 6am of the following day, covering certain localities in the Borough of Haringey (including the 149 route). This was an attempt to deal with a bout of gang-related violence that had taken place in the Borough in the weeks leading up to the day of the search. No such weapon or instrument was found on the Appellant's person.

The Appellant brought judicial review proceedings on the basis that there had been a breach of various convention rights. Her complaint under article 8 gained most traction and ultimately the case came before the Supreme Court to determine whether or not searches under S60 are compatible with the ECHR. It was argued on behalf of the Appellant that the power to search without suspicion under S60 was so broad that it was contrary to the rule of law and therefore could not be justified under article 8(2).

The Court considered inter alia the decision in Beghal v DPP [2015] UKSC 49 in which it was held that "the opportunity to exercise a coercive power in an arbitrary or discriminatory fashion is antithetical to its legality" [per Lord Kerr].

Held:
The power under S60 of the Criminal Justice and Public Order Act 1994 is subject to a number of safeguards including those set out in the Act itself, PACE, and the Force Standard Operating Procedures of the Metropolitan Police.

Under these safeguards the officers involved are bound to comply with a number of requirements. The Court stressed the particular importance of the requirement of giving reasons for the authorisation and search, and that failure to comply with these requirements could itself render the search unlawful.

These safeguards, taken together, were sufficient to protect against arbitrary or discriminatory use. The power under S60 is therefore compatible with the rule of law and cannot be described as incompatible with article 8.