On 12 January, after judging on the Gillan and Quinton v. the United Kingdom (no. 4158/05) case, 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', finding that its use was therefore illegal

The Home Office had until 12 April to appeal the ruling, and according to the European Court of Human Rights, speaking to BJP, the appeal has been lodged last week. "On 09 April 2010 the UK Government asked the Court to refer the case to the Grand Chamber," a spokeswoman tells BJP. "It is now for the Court, in its Grand Chamber Committee of judges, to consider the Government's request and to decide on it."

The Grand Chamber of the Court of Human Rights is composed of 17 judges. However, a committee of five judges must first consider "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."

The spokeswoman adds that "if the Court decides to reject the Government's request for referral of the case to the Grand Chamber, then the case will become final on that very same day when that decision is taken," which in this case would force the government to revise its anti-terrorism policies and the use of the controversial Section 44.

Speaking to BJP, Pennie Quinton, a filmmaker that sued the government after being stopped during a London-based arms trade show in 2003, says she isn't surprised by the appeal. "The government has always said it would appeal. It's interesting, though, that while the European Court decision was reached unanimously by seven judges, it would ask for 17 judges to look at it."

She adds, after seeing the appeal's details, that the UK government has not changed its arguments in the case. "Now we need to see if the panel will allow the case to go through. I think it's a time-saving exercise, that the government didn't want to have to change [its anti-terrorism laws] before the election."

Also speaking to BJP, photojournalist and secretary of the NUJ London Photographers' Branch, Marc Vallée, says that "this appeal is of no great surprise from a government that has spent the last decade attacking photographers' rights, press freedom and civil liberties in the name of counter-terrorism." He adds: "The avalanche of stop and searches, threats and arrests of photographers backed up by a government agenda that equates photography with terrorism has lead us to this. The government should accept the ECHR ruling and scrap Section 44 once and for all."

The case

The European Court, last year, was hearing the case of Kevin Gillan and 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 had filed a motion with England's 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. Five years later, the European Court 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 added 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 to cover cost.

Shortly after the decision on 12 January, however, the Home Office and the Association of Chief Police Officers reaffirmed their support for the controversial powers, which have been increasingly used against photographers in the past years.