3 Case studies
3.1 Article 8 Cases
3.1.3 Gillan and Quinton v. the United Kingdom
國
立立 政 治 大
㈻㊫學
•‧
N a tio na
l C h engchi U ni ve rs it y
3.1.3 Gillan and Quinton v. the United Kingdom
The Case of Gillan and Quinton v. the United Kingdom illustrates a relatively new issue contesting the interpretation of human rights laws as well as the understating of rights covered by the Article 8 of the Convention. This fairly recent case is dealing with the question, whether in order to provide security for citizens, individuals might be stripped from some of their human rights, or that some of their human rights might be restricted in order to be able to successfully fight against the threat of terrorism. In this Case we can identify the contested relationship between right of the individual for privacy versus the right of other citizens to live in safe environment and be protected by Government. This case also illustrates the state of affairs in many countries after the 9/11 terrorist attacks, when the hysteria of terrorist attacks led to political pressure and enactment of laws often conflicting previous international covenants or general understanding of law.
In the Case of Gillan and Quinton v. the United Kingdom, applicants claimed that the random searches by police on the street to control or deter their attendance at the demonstration rather than to search for articles linked to terrorism, caused them distress and intimidation, and were in breach of Articles 5, 8, 10, 11 of the Convention.124 In their defense, police officers claimed that such searches were in compliance with the Terrorism Act 2000 section 44 and 45.125 The Paragraph 44(2) of this Act reads: "an authorization under this subsection authorizes any constable in uniform to stop a pedestrian in an area or at a place specified in the authorization and to search (a) the pedestrian; (b) anything carried by him."126 In the Article 45(1) the vague wording made is easy for police to check basically anyone they wanted,
124 Case of Gillan and Quinton v. the United Kingdom, Application No. 4158/05 (2010). Para. 25.
125 Terrorism Act 2000 (c.11). http://www.legislation.gov.uk/ukpga/2000/11/contents/enacted.
126 Terrorism Act 2000 (c.11). Article 44 (2).
•‧
國
立立 政 治 大
㈻㊫學
•‧
N a tio na
l C h engchi U ni ve rs it y
claiming that they are looking for articles, which could be used for terrorist purposes:
"the power conferred by an authorization under section 44(1) or (2) (a) may be exercised only for the purpose of searching for articles of a kind which could be used in connection with terrorism, and (b) may be exercised whether or not the constable has grounds for suspecting the presence of articles of that kind."127
There is a possible argument defending the police action, that in order to prevent terrorist attacks, the random individual searches are necessary and not that excessively encroaching somebody's human rights. Moreover, it would be logical to argue that in order to ensure public safety, and other civilians’ Right to Life under the Article 2 of the ECHR128, State and its law-enforcement agencies have to ensure their positive obligations towards citizens. However, there could be identified potential risks of enforcing such laws, especially when their wording is too vague and could easily lead to different interpretations. We could imagine a scenario of police officers carrying out searches based on their personal intuition, which could be aimed at not only particular ethnic or religious group of people, but also against demonstrators and protesters.
The Court noted that ”while the present cases do not concern black applicants or those of Asian origin, the risks of the discriminatory use of the powers against such persons is a very real consideration, as the judgments of Lord Hope, Lord Scott and Lord Brown recognized. The available statistics show that black and Asian persons are disproportionately affected by the powers, although the Independent Reviewer has also noted, in his most recent report, that there has also been a practice of stopping and searching white people purely to produce greater racial balance in the
127 Terrorism Act 2000 (c.11). Article 45 (1).
128 ECHR, Article 2.
•‧
國
立立 政 治 大
㈻㊫學
•‧
N a tio na
l C h engchi U ni ve rs it y
statistics.”129 In such scenario we would be witnessing the breach of the Article 8, but probably also of the Article 10: Freedom of expression130 and Article 11: Freedom of assembly and association.131 Moreover, such action would be almost certainly violating the Article 14: Prohibition of discrimination.132
The judgment by the Court does not suggest that Governments have no feasible options to fight against terrorism or implement any preemptive measurements. On the contrary, such options exist, and are most desirable to ensure safety of citizens.
However, they cannot be in breach with any article of the Convention. After the 9/11, there has been a significant increase of various anti-terrorism acts worldwide, but such a rapid establishment of laws, has been often at the cost of the human rights. In the final judgment Lord Carlile noted that ”while arrests for other crimes had followed searches under section 44, none of the many thousands of searches had ever related to a terrorism offence; in his 2008 Report Lord Carlile noted that examples of poor and unnecessary use of section 44 abounded, there being evidence of cases where the person stopped was so obviously far from any known terrorism profile that, realistically, there was not the slightest possibility of him/her being a terrorist, and no other feature to justify the stop.”133
The Court founded that the powers assigned to the police officers under this act, carried a high risk of arbitrariness. Moreover, provisions within this Act were not sufficiently circumscribed, and could be easily misused against civilians.134 For this reason the Court decided that the powers of authorization and confirmation as well as
129 Case of Gillan and Quinton v. the United Kingdom, Application No. 4158/05 (2010). Para. 85.
130 ECHR, Article 10.
131 ECHR, Article 11.
132 ECHR, Article 14.
133 Case of Gillan and Quinton v. the United Kingdom, Application No. 4158/05 (2010). Para. 84.
134 Ibid. Para. 87.
•‧
國
立立 政 治 大
㈻㊫學
•‧
N a tio na
l C h engchi U ni ve rs it y
those of stop and search under sections 44 and 45 of the Terrorism Act 2000 were not in accordance with law and in breach of the Article 8 of the Convention.135