Facts:

Mr Gillan and Ms Quinton lodged an appeal against the UK government claiming that the stop and search powers used against them where in violation of Articles 5 (right to liberty), 8 (right to a private and family life), 10 (right to freedom of expression) and 11 (freedom of assembly and of association) of the European Convention on Human Rights. 

While on their way to a demonstration close to an arms fair, the claimants were both stopped and searched for over 20 minutes according to Articles 44 and 45 of the 2000 Terrorism Act. They applied for judicial review in the High Court, claiming that the use of stop and search powers during a demonstration such as the arms fair, were contrary to the legislative purpose of the Statute and that the use of these powers constituted a disproportionate interference with their rights protected under Articles 5, 8, 10 and 11. The case went up to the House of Lords, which rejected the appeal on the ground that the statute was drafted so as to allow the use of such powers when considered expedient ‘for the prevention of acts of terrorism’.  Lord Bingham held that a search did not constitute an infringement of the right to a private and family life. He further held that the statute was lawful. Lord Hope also added that the scope for intrusion allowed by the search powers was narrow, thus legitimate for the purpose of protecting the public from terrorism.

Article 5:

The Court held that even though the stop did not last for more than 30 minutes, the applicants had been completely deprived of their right to liberty under Article 5 during that time, since non -compliance with the stop and search order would have lead to criminal proceedings. There was however no need for the Court to express a final judgment on that point, as the decision was to depend on whether there was an infringement of Article 8 of the Convention.

Article 8:

The claimants submitted that the stop and search powers used by the police on them were qualitatively different from similar powers used in airports, since no prior notice nor agreement was given and since the search was conducted in a public place. As a result, they argued, there was an infringement of their right to autonomy and privacy under Article 8. The Court held that the stop and search powers allowing vigorous search in a public place constituted an infringement of Article 8.

Did the infringement comply with national law in accordance with paragraph 2 of Article 8 of the Convention? Relying on its previous case law, the Court held that despite the existence of certain restraints to the power conferred onto the police by the 2000 Act, these restraints were too limited. This lead to a clear risk of arbitrariness, as police officers had a very broad discretion in the exercise of their powers. 

The Court concluded 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. It held, therefore, that they were not “in accordance with the law” and that there had been a violation of Article 8 of the Convention.