Fox & Ors, Re Judicial Review

Factual and Procedural Background

The appeals concern two separate judicial review proceedings heard together, challenging the lawfulness of the Police Service of Northern Ireland's ("PSNI") powers under sections 21 and 24 of the Justice and Security (Northern Ireland) Act 2007. These powers relate to stopping, questioning, and searching individuals. The first appellant ("Appellant A") claimed repeated stops and questioning by police over three years, alleging oppressive conduct and reliance on the impugned powers to circumvent a European Court of Human Rights decision invalidating similar powers under the Terrorism Act 2000. The second set of appellants ("Appellants B and C") challenged a specific stop and search incident involving a vehicle search and seizure of personal items without proper documentation or clear legal basis. The PSNI maintains that the powers are intelligence-led, necessary due to the ongoing terrorist threat, and subject to internal and external oversight. The appellants seek declarations of incompatibility of the statutory provisions with Articles 5 and 8 of the European Convention on Human Rights (ECHR), as well as other remedies. At first instance, Treacy J found the powers interfered with Article 8 rights but were lawful and proportionate in the context of the security threat. The appellants appeal this decision.

Legal Issues Presented

1. Whether the power to stop and question a person under section 21 engages Articles 5 and/or 8 of the ECHR.
2. If so, whether the power to stop and question under section 21 is "in accordance with law" for the purposes of Article 8, considering the quality of the law and safeguards against arbitrary use.
3. Whether the power under section 21 is necessary and proportionate in a democratic society under Article 8(2).
4. Whether the exercise of the power to stop and search under section 24 without reasonable suspicion breaches Articles 5 and 8.
5. The appropriateness of declarations of incompatibility relating to the statutory powers in light of legislative amendments.

Arguments of the Parties

Appellant A's Arguments

• Section 21 and section 24 powers lack necessary safeguards and allow arbitrary and disproportionate interference with privacy rights under Article 8.
• The powers require no suspicion or necessity, unlike the now-invalidated section 44 of the Terrorism Act 2000, thus failing the quality of law requirement.
• The absence of limits on the scope, duration, and content of questioning increases the risk of arbitrariness.
• The coercive nature of the powers, including criminal sanctions for non-compliance, suggests a deprivation of liberty engaging Article 5.
• Existing safeguards are post hoc reporting and monitoring mechanisms insufficient to meet Strasbourg standards.
• Legislative amendments to section 24 indicate tacit acknowledgment of incompatibility with Article 8.

Appellants B and C's Arguments

• Section 24 stop and search powers were exercised unlawfully and without reasonable suspicion, breaching Articles 5 and 8.
• They were detained for approximately one hour without proper legal justification or documentation.
• The seizure of personal property (a notebook) lacked legal basis.
• The power does not meet the quality of law requirement, and the purported justifications by police were not supported by clear evidence or legal authority.
• They seek declaratory relief and assurances that such powers will not be used against them again and that they will be properly informed when stopped and searched.

Respondent's Arguments

• The challenges to section 24 are largely overtaken by legislative amendments (Protection of Freedoms Act 2012) introducing authorisation requirements and codes of practice.
• The section 21 power was rarely used as a standalone power and does not involve intrusive searches, thus not engaging Article 8 rights significantly.
• There was insufficient factual basis to establish interference with private life under section 21.
• The powers are necessary and proportionate given the serious threat from dissident terrorism and are subject to oversight, including by an Independent Reviewer.
• The section 24 powers were intelligence-led, not random or blanket, and lawful as framed at the time of the challenges.
• Article 5 protects against deprivation of liberty, not mere restrictions on movement, and the stop and question powers do not amount to deprivation of liberty.
• Requests for assurances against future use of powers or for reasons for stops are speculative and not justified.

Table of Precedents Cited

Court's Reasoning and Analysis

The court concentrated on the legality and compatibility of the statutory powers under sections 21 and 24 of the 2007 Act with the Convention rights, focusing on the quality of law and safeguards against arbitrary use. It acknowledged that the powers interfere with Article 8 rights as they involve stopping, questioning, and searching individuals, thereby impacting privacy and freedom of movement. However, the court found that section 21, when read with the power to issue codes of practice under section 34, could provide a legal framework capable of satisfying the "in accordance with law" requirement, provided a proper code is introduced. Pending such a code, the exercise of section 21 powers lacks adequate safeguards and is not compliant with Convention standards.

Regarding section 24, the court noted that legislative amendments had altered the legal landscape, introducing authorisation procedures and codes of practice, rendering incompatibility challenges moot for current law. The court rejected the narrow argument that searches without reasonable suspicion were never lawful, recognizing that intelligence-led searches without individual suspicion could be justified in exceptional circumstances.

On Article 5, the court distinguished between deprivation of liberty and restrictions on movement, concluding that stop and question powers generally amount to restrictions rather than deprivation. Whether a particular exercise of powers amounts to deprivation is fact-specific and was not suitable for determination in these judicial review proceedings due to factual disputes.

The court emphasized the importance of clear, precise, and effective safeguards to prevent arbitrary use of the powers, noting that the absence of a code of practice at the time meant the section 21 power was not properly exercisable. It accepted that the powers are necessary tools in the context of a serious terrorist threat but must be exercised within a lawful framework that protects individual rights.

Claims for assurances against future use of powers and for proper reasons for stops were dismissed as speculative or irrelevant given the legislative changes and oversight mechanisms in place.

Holding and Implications

The court ALLOWED THE APPEAL in relation to the challenge to the exercise of section 21 powers without a valid and effective code of practice ensuring compliance with Article 8. It held that the PSNI does not currently have a proper Convention-compliant basis for exercising section 21 powers pending the introduction of such a code. The court recognized the necessity and proportionality of the powers in principle but emphasized the need for adequate safeguards.

Regarding section 24, the appellants abandoned their incompatibility challenge in light of legislative amendments, and the court found no basis to declare past exercises unlawful absent reasonable suspicion, rejecting the narrow argument that such searches were never lawful.

The court declined to decide factual disputes relating to specific stop and search incidents and damages claims, noting these were inappropriate for judicial review and should be pursued in other forums.

No new precedent was established beyond affirming the requirement for clear legal frameworks and safeguards governing stop and question powers. The decision underscores the importance of legislative and procedural safeguards to ensure compatibility with Convention rights when intrusive police powers are exercised.