Vehicle Occupants, Suspicion-less Searches and the Force of Codes: A Commentary on Reynolds, Application for Judicial Review ([2025] NICA 28)

Introduction

The Court of Appeal in Northern Ireland (“NICA”) has handed down a significant judgment in Reynolds, resolving two recurring controversies surrounding the stop-and-search regime in Schedule 3 to the Justice and Security (Northern Ireland) Act 2007 (“the 2007 Act”):

1. Whether a person inside a vehicle can be treated as “a person in the specified area or place” for the purpose of paragraph 4A(2), thereby allowing PSNI officers to stop the vehicle, order the person out and search them without reasonable suspicion.
2. Whether the PSNI’s admitted delay in devising a methodology to monitor (under Code of Practice, paras 5.9–5.11) the community background of those searched renders every search since 2012 unlawful.

The Court (McCloskey LJ delivering for McCloskey LJ, Horner LJ and Humphreys J) dismissed Mr Reynolds’ appeal against Colton J’s judgment and, in doing so, clarified the proper construction of paragraph 4A, curtailed the reach of Codes of Practice (“COP”) in vitiating otherwise lawful police action, and reaffirmed modern principles that determine the legal consequences of statutory non-compliance.

Summary of the Judgment

• Searches upheld. All impugned searches were lawful because the appellant was physically present within an area covered by a valid 4A authorisation; the fact that he was initially in a car, subsequently asked to step out, and then searched, did not take him outside the reach of the power.
• Vehicle occupants covered. The Court held it would be “manifestly absurd” to construe 4A as excluding someone merely because they are in a vehicle: Parliament cannot have intended a “lottery” whereby a person becomes immune from search once seated in a car.
• Codes of Practice. Although there has been “partial, incomplete compliance” with the COP requirement to monitor community background, that failure does not invalidate searches. Applying Soneji principles, Parliament did not intend “total invalidity” to flow from such non-compliance.
• No Article 8 breach. Because the statutory scheme, viewed as a whole, still contains adequate safeguards and because non-compliance with the COP does not destroy legality, the Article 8 ECHR challenge fell away.

Detailed Analysis

1. Precedents and Authorities Cited

The Court drew heavily on a line of UK and Strasbourg jurisprudence outlining:

• Requirement for clear statutory language when the State interferes with the person – Collins v Wilcock, Morris v Beardmore, Roberts.
• Schedule 3’s genesis – the decision of the ECtHR in Gillan v UK (2010) which struck down earlier suspicion-less powers in England & Wales for insufficient safeguards.
• Modern interpretive doctrine – Soneji, Robinson, O (2022 UKSC), emphasising purposive construction and the “legislative intention as to consequences” test.
• Safeguard sufficiency – Christian Institute, T v GMO Police, Ramsey (No 2) on the Article 8 “in accordance with the law” standard.

Earlier Northern Ireland decisions—Ramsey (No 2), Perry and Said—were used to illustrate limits of Codes of Practice and to reinforce that extensive Schedule 3 safeguards (authorisation hierarchy, Secretary of State confirmation, independent review) remain operative.

2. The Court’s Legal Reasoning

2.1 Vehicle occupants and paragraph 4A

1. Textual context. The phrase “person in the specified area or place” is unqualified; the Schedule elsewhere defines “premises” to include vehicles (s.42) and permits stop of vehicles (s.21(5)).
2. Absurdity test. Excluding persons in cars would produce unworkable, arbitrary results: quick-footed suspects could perpetually evade search by stepping into any car; differing treatment of cyclists, passengers leaning out a door, etc. Applying Lord Millett’s dictum in Edison First Power, such absurdity is presumed unintended.
3. Purposive lens. Paragraph 4A was introduced precisely to remove earlier “public/private place” distinctions after Gillan, focusing instead on risk-driven geographic authorisations. A bright-line exclusion for vehicles would undermine that purpose.
4. Practical context. All authorisations since 2012 have covered the whole of Northern Ireland owing to the dissident republican threat; any contrary reading would severely blunt operational effectiveness.

2.2 Codes of Practice: legal status and consequences of non-compliance

1. Hierarchy principle. Codes, made under s.34 2007 Act, are subordinate. They may inform practice but cannot rewrite or override the Act.
2. Soneji test. Non-compliance only invalidates decisions if Parliament must be taken to have intended that draconian consequence. Factors assessed:
   • Nature of breach: incomplete/delayed compliance, not wilful refusal.
   • Statutory aim: terrorism prevention—overriding public interest.
   • Existing safeguards: authorisation layers, Independent Reviewer, Judicial Review.
   • Prejudice: no evidence individual searches were discriminatory; civil remedies remain.
3. Outcome. The failing is not of the gravity warranting total invalidity; thus searches remain lawful.

3. Impact of the Decision

• Operational clarity for PSNI. Officers can rely on paragraph 4A to search individuals who are inside or have just exited vehicles within the authorised zone, without fearing later judicial invalidation on that ground.
• Guidance beyond Northern Ireland. Although Schedule 3 is NI-specific, courts elsewhere may reference the reasoning when construing similarly worded terrorism or public-order powers.
• Codes of Practice litigation narrowed. Parties challenging police powers now face a higher hurdle: mere procedural or monitoring lapses in a COP will rarely be enough to annul exercises of primary legislative powers absent explicit statutory language.
• Encouragement of measured reform. The Court nonetheless underlined the “unacceptable delay” in finalising a community-background methodology, adding institutional pressure on PSNI to complete the task.

Complex Concepts Simplified

Schedule 3, paragraph 4A Authorisation

A temporary declaration by a senior PSNI officer (Assistant Chief Constable or above) that, within a named area and limited time (max 14 days), any constable may stop and search anyone for munitions or wireless apparatus without needing suspicion. Must be approved by the Secretary of State within 48 hours.

“In accordance with the law” (Article 8 ECHR)

The interference must have a clear legal basis, be accessible and foreseeable, and provide safeguards against arbitrary abuses.

Code of Practice (COP)

Non-statutory but statutorily authorised guidance issued by the Secretary of State under s.34. Breach does not automatically create civil or criminal liability (s.35(1)), but courts may “take it into account”.

Soneji test (Statutory non-compliance)

When a public authority fails to meet a statutory procedural requirement, the court asks: Did Parliament intend that failure to result in total invalidity of the action? Considerations include seriousness, purpose of the requirement, prejudice, and public interest.

Conclusion

Reynolds cements two propositions now likely to guide terrorism-related policing in Northern Ireland and beyond:

1. Substance over form in “place” definition. The protective reach of suspicion-less stop-and-search authorisations turns on geography, not on whether a suspect happens to be in a vehicle. The Court’s purposive, anti-absurdity rationale is likely to influence future glosses on comparable statutory wording.
2. Codes matter, but not fatally. Delayed or partial observance of monitoring duties in a COP, while undesirable, will not ipso facto render every search since 2012 unlawful. The judgment re-asserts the constitutional hierarchy of norms and the flexible, consequence-oriented approach to statutory non-compliance.

For practitioners, the decision offers both a shield and a sign-post: a shield for police who act within the four corners of a Schedule 3 authorisation, and a sign-post reminding executive bodies that continued procrastination in delivering promised safeguards will not be overlooked—albeit the remedy may fall short of total invalidation. Future challenges are more likely to focus on individualised misuse or discriminatory targeting, rather than on wholesale attacks grounded solely on procedural gaps in Codes of Practice.