Police forces across the UK have confirmed they will continue to use Section 44 to stop and search individuals, including photographers, despite a decision by the European Court of Human Rights which found the powers to be illegal.

On 12 January, the European Court stated that the use of Section 44 to stop-and-search people is illegal and that the powers lack proper 'safeguards against abuse'.

The court was hearing the case of Kevin Gillan and Pennie Quinton, who were both stopped during a London-based arms trade show on 09 September 2003. The police were 'acting under sections 44-47 of the 2000 Act, while (the two were) on their way to a demonstration close to an arms fair held in the Docklands area of East London'.

Both protesters filed a motion with the High Court. However, on 31 October 2003, the application was dismissed. 'The Court of Appeal, on 29 July 2004, made no order on the applicants' claims against the Commissioner of the Metropolitan Police and dismissed the claim against the Secretary of State,' says the European Court.

On 08 March 2006, the House of Lords unanimously dismissed the applicants' appeals. 'In particular, the Law Lords were doubtful whether an ordinary superficial search of the person could be said to show a lack of respect for private life, so as to bring Article 8 of the European Convention on Human Rights into operation.'

The House of Lords' decision forced Gillan and Quinton to lodge an application with the European Court of Human Rights on 26 January 2005. The court has now found that the two protesters' rights had been violated under Article 8 of the European Convention on Human Rights.

'The Court considered that the use of the coercive powers conferred by the anti-terrorism legislation to require an individual to submit to a detailed search of their person, clothing and personal belongings amounted to a clear interference with the right to respect for private life,' the European Court found in its judgment.

It continued: 'The public nature of the search, with the discomfort of having personal information exposed to public view, might even in certain cases compound the seriousness of the interference because of an element of humiliation and embarrassment.'

The court adds that it was 'struck by the statistical and other evidence showing the extent to which police officers resorted to the powers of stop and search under section 44 of the Act and found that there was a clear risk of arbitrariness in granting such broad discretion to the police officer. There was, furthermore, a risk that such a widely framed power could be misused against demonstrators and protestors in breach of Article 10 and/or 11 of the Convention.'

The two protesters were awarded more than £30,000 in compensation.

However, the Home Office and the Association of Chief Police Officers have reaffirmed their support for the controversial powers, which have been increasingly used against photographers in the past years.

In a statement to BJP, David Hanson, Policing and Security Minister, reaffirmed that the stop and search powers granted under Section 44 of the Terrorism Act 2000 were 'an important tool in a package of measures in the on-going fight against terrorism'.

He added: 'I am disappointed with the (European Court of Human Rights) ruling in this case as we won all other challenges in the UK courts, including at the House of Lords. We are considering the judgment and will seek to appeal.'

Pending the outcome of the appeal, the 'police will continue to have these powers available to them,' said Hanson.

His pledge was echoed by the ACPO. 'As a result of the government decision to seek to appeal the ruling and following legal advice, the use Section 44 of the Terrorism Act 2000 remains in force in accordance with authorisations currently in place nationally,' said the ACPO's lead on stop and search chief constable Craig Mackey.

Currently, more than 27 constabularies are using the powers across the UK, as BJP revealed in December 2009 after filing a series of Freedom of Information requests with the UK's chief constables.

The Home Office has three months to appeal the ruling. If the appeal is received within this time frame, the 17-member Grand Chamber of the Court of Human Rights will take on the dossier. In such cases, 'a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment.'

However, the government faces an uphill battle given that the European Court of Human Rights found unanimously against Section 44, with its seven judges agreeing that the powers were illegal. One of the judges, Nicolas Bratza, is a Briton.

Photojournalist Marc Vallee isn't surprised 'that the government will seek to appeal this ruling. Meanwhile photographers across the UK will face unnecessary stop and searches under Section 44,' he told BJP. 'The Home Office statement states that Section 44 is an important tool in the fight against terrorism - I would like to see the evidence that stopping photographers on the streets of Britain has disrupted a terrorist attack?'

Corinna Ferguson, legal officer for Liberty and acting for the applicants, adds: 'Liberty has consistently warned the Government about the dangers of stop and search without suspicion and actively campaigned for the tightening up of the infamous section 44 power. The public, police and Court of Human Rights all share our concerns for privacy, protest, race equality and community solidarity that come with this sloppy law. In the coming weeks, Parliamentarians must finally sort out this mess.'

Image (c) Marina Scukina/BJP.

The Court's findings in summary:

- A public search presents a clear interference with the right to respect for private life

- A public search creates humiliation and embarrassment

- The wide discretion conferred on the police under the 2000 Act has not been curbed by adequate legal safeguards

- The temporal and geographical restrictions on the powers provided by Parliament have failed to act as any real check on the issuing of authorisations by the executive

- The Terror Watchdog's powers are too limited, as he has no right to cancel or alter authorisations

- The absence of any obligation on the part of the officer to show a reasonable suspicion makes it almost impossible to prove that the powers were improperly exercised.