What now for the UK’s anti-terrorism laws?

On the 12th of January, the European Court of Human Rights (ECHR) ruled in the case of Gillan and Quinton v. the United Kingdom, that UK police powers to randomly stop and search people under Sections 44-47 of The Terrorism Act (2000) were unlawful. This is the third recent ruling by the ECHR against the current direction of the UK’s security policies (after the ruling in S. and Marper v. the UK, against the police retaining DNA profiles and fingerprints from people not convicted of any offence). It also follows the furore over the London Metropolitan Police’s interpretation of Sections 43, 44 and 58s of The Terrorism Act in relation to public photography.* The case was brought by two people, Pennie Quinton a journalist who was on her way to cover a demonstration against an arms fair in London in September 2003,, and Kevin Gillan, who was cycling past.

Section 44 allows the police to stop and search anyone on the basis of a ‘reasonable suspicion’ that they may be in posssession of information or items that may be useful in committing an act of terrorism. The case in the ECHR was on several principles, most of which were rejected, but most importantly the Court found that arbitrary stop and search dis violate Article 8 of the European Convention, on the right to privacy. This was because “the use of the coercive powers conferred by the legislation to require an individual to submit to a detailed search of his person, his clothing and his personal belongings amounts to a clear interference with the right to respect for private life”.

Furthermore the UK government once again argued, as it did equally unsuccessfully in the case of Peck v. UK back in 2003, that Article 8 did not apply as there was no right privacy in public places. This argument, the Court not only rejected but actually argued that the publicness of the stop and search made the violation of privacy worse:

“Although the search is undertaken in a public place, this does not mean that Article 8 is inapplicable. Indeed, in the Court’s view, the public nature of the search may, in certain cases, compound the seriousness of the interference because of an element of humiliation and embarrassment. Items such as bags, wallets, notebooks and diaries may, moreover, contain personal information which the owner may feel uncomfortable about having exposed to the view of his companions or the wider public.”

This was a well-thought out ruling which made the arguments pretty clear. However the response of the UK government, as in the DNA case, leaves a lot to be desired. In fact, it has basically said, “make me”! The government intends to ignore the ruling in everyday practice, as it did with Peck, and will continue to allow police to carry out such searches whilst it appeals the case. This also means that there will be no disciplinary action against any officer who follows this policy, despite its now being unlawful.

*This of course is by no means over either, and there will be a mass photography action, “I’m a Photographer Not a Terrorist!”, on January 23rd at 12 Noon, Trafalgar Square in London.

UN Human Rights Committee Finds Discrimination in Racial Profiling

I received the following message from James A. Goldston, Executive Director of the Open Society Justice Initiative, on a very important finding on racial profiling by the UN Human Rights Committee. I reprint he message in full, as it speaks for itself.

On July 30, 2009, the United Nations Human Rights Committee became the first international tribunal to declare that police identity checks that are motivated by race or ethnicity run counter to the international human right to non-discrimination. The committee issued its views concerning the Rosalind Williams v. Spain communication, originally filed by the Justice Initiative and Women’s Link Worldwide in 2006.

Williams’ case began 17 years ago, when she, a naturalized Spanish citizen, was stopped by a National Police officer in the Valladolid, Spain rail station. Of all the people on the train platform, she was the only one to be stopped and asked for her identity documents. She was also the only black person on the platform. Williams soon launched a legal challenge to the identity check, claiming she was targeted because of her race. In 2001, the Spanish Constitutional Tribunal approved the practice of relying on specific physical or racial characteristics as “reasonable indicators of the non-national origin of the person who possesses them,” arguing that racial criteria are “merely indicative of the greater probability that the interested party not Spanish.” The court’s endorsement lent legitimacy to a pervasive discriminatory policy of ethnic profiling that had for years been widely documented by human rights monitoring bodies.

In finding a violation of the International Covenant on Civil and Political Rights the UN Human Rights Committee concluded that while identity checks might be permitted for protecting public safety, the prevention of crime, or to control illegal immigration, “the physical or ethnic characteristics of the persons targeted should not be considered as indicative of their possibly illegal situation in the country. Nor should identity checks be carried out so that only people with certain physical characteristics or ethnic backgrounds are targeted. This would not only adversely affect the dignity of those affected, but also contribute to the spread of xenophobic attitudes among the general population; it would also be inconsistent with an effective policy to combat racial discrimination.”

The committee found that while there was no written policy to conduct police identity checks on the basis of skin color, “…it does appear that the police officer did act according to such a criterion — something that was justified by the courts that heard the case. The responsibility of the State party is clearly compromised.”

“… the Committee can only conclude that the petitioner was singled out only because of her racial characteristics, and this was the decisive factor for suspecting unlawful conduct. The Committee recalls its jurisprudence that not all differential treatment constitutes discrimination if the criteria for differentiation are reasonable and objective and if the goal is legitimate under the Covenant. In this case, the Committee finds that the criteria of reasonableness and objectivity were not met.”

The implications of the UN Human Rights Committee’s judgment extend far beyond Spain, where ethnicity-based police stops are still a common practice, to wider Europe, where years of monitoring have revealed a persistent and damaging pattern of ethnic profiling of minorities and immigrants in police stops and searches without explanation and without clear or effective purpose. The Justice Initiative has documented the prevalence and harms of this impermissible practice in reports such as “I Can Stop and Search Whoever I Want” — Police Stops of Ethnic Minorities in Bulgaria, Hungary and Spain and Ethnic Profiling in the European Union: Pervasive, Ineffective, and Discriminatory!, and has long advocated for operational, policy, and legal reforms before national and regional actors.

Although previous regional human rights tribunals have touched upon the issue of ethnic profiling — most notably the European Court of Human Rights in its 2005 Timishev v. Russia judgment, which held that the applicant had been unjustifiably subjected to differential treatment in relation to his right to liberty of movement “solely” due to his ethnic origin — Williams v. Spain is the first case to explicitly challenge ethnic profiling as a practice, and the UN Human Rights Committee the first international tribunal to issue a ruling prohibiting race- and ethnicity-based police stops.

Following this landmark judgment, the Justice Initiative will continue to work with government representatives and law enforcement agencies in Spain and other EU Member States, as well as with EU institutions in Brussels, to make sure that the policy and practice changes in line with the principles established by the UN Human Rights Committee are adopted and implemented.

Click here for further information on the Justice Initiative’s work challenging ethnic profiling.