Factual and Procedural Background
This appeal arises from a stop and search conducted on 12 December 2017 involving the Appellant, a 16-year-old, who was a passenger in a vehicle driven by her father. Police officers, acting on intelligence related to the father, decided to stop and search the father, the vehicle, and its occupants, including the Appellant and her younger brother. The Appellant was searched by a police constable known to her, who judged the search appropriate and in her best interests given the context and risk of concealment of munitions. The Appellant challenged the lawfulness of the powers exercised under section 24 and Schedule 3 of the Justice and Security (Northern Ireland) Act 2007 ("the 2007 Act"), contending that these powers failed to meet the "quality of law" test required under Article 8 of the European Convention on Human Rights (ECHR), were contrary to the Human Rights Act 1998, and did not ensure different treatment for children. The High Court rejected these challenges, and the matter is before the Court of Appeal on this judicial review.
Legal Issues Presented
- Whether the powers to stop and search children without reasonable suspicion under section 24 and Schedule 3 of the 2007 Act satisfy the "quality of law" requirement under Article 8 ECHR.
- Whether the exercise of these powers by the police violated section 6 of the Human Rights Act 1998 read with Articles 14 and 8 ECHR, particularly regarding differential treatment of children.
- Whether the police failed to comply with their obligations under section 53(3) of the Justice (Northern Ireland) Act 2002 to have the best interests of children as a primary consideration in exercising their functions in the youth justice system.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Gillan v UK [2010] 28 BHRC 420 |
Engagement of Article 8 in stop and search powers; requirement that powers be accompanied by safeguards to prevent arbitrary use. |
The court followed the European Court of Human Rights' approach, recognizing that the 2007 Act's original stop and search provisions were broad and lacked safeguards, failing the "quality of law" test absent a Code of Practice. |
| Thlimmenos v Greece [2001] 31 EHRR 15 |
Principle against discrimination under Article 14 within the ambit of Article 8. |
The court rejected the appellant's claim that children were treated the same as adults, finding the policy directive incorporated specific protections for children, thus no breach occurred. |
| Re Gallagher [2019] 2 WLR 509 |
Requirement that a law interfering with Article 8 rights be accessible, foreseeable, and provide protection against arbitrariness. |
The court applied this principle to assess the sufficiency of safeguards in the 2007 Act and related instruments, confirming the need for clear scope and exercise of discretion. |
| Beghal v DPP [2016] AC 88 |
Legitimacy of suspicionless stop and detention powers at border controls; importance of safeguards and supervision. |
The court noted the powers were lawful due to restrictions on use, supervision by an Independent Reviewer, and availability of judicial remedies, paralleling the safeguards considered in the instant case. |
| R (Roberts) v Commissioner of Police for the Metropolis [2016] 1 WLR 210 |
Validity of broad stop and search powers under section 60 of the Criminal Justice and Public Order Act 1994 with safeguards. |
The court emphasized the importance of necessity, limited duration, geographical scope, briefing, explanation, and recording to prevent arbitrariness, principles echoed in the 2007 Act regime. |
| Colon v The Netherlands [2012] 55 EHRR SE55 |
Legitimacy of judicially reviewable authorisations for stop and search in designated areas for public safety. |
The court noted the importance of judicial remedies and reasoned authorisations, which support the lawfulness of the authorisation regime under the 2007 Act. |
Court's Reasoning and Analysis
The court examined the statutory framework under the 2007 Act, including the authorisation regime introduced following the ECtHR's decision in Gillan, which requires senior police officers to authorise stop and search powers based on reasonable suspicion of potential danger from munitions or wireless apparatus. The authorisation is temporally and geographically limited and subject to oversight by the Secretary of State and an Independent Reviewer.
The court noted the existence and content of the Code of Practice, which governs the exercise of stop and search powers and incorporates protections for children and young people, including Policy Directive 13/06 emphasizing dignity, respect, and the best interests of children as paramount. The court acknowledged the importance of monitoring and accountability provisions, including the requirement to record the trigger for stop and search decisions to prevent arbitrary use.
The Independent Reviewer’s reports were considered a key safeguard, providing oversight and recommendations to improve practice, including enhanced training and the use of body-worn video. The court accepted that while the legal framework was adequate to protect against arbitrary interference, the police had previously failed to fully implement all protective measures, particularly in recording the trigger for searches involving children. Recent steps by the police to rectify this deficiency were noted.
The court also considered comparative guidance from Scotland, finding it helpful but not legally required, and rejected claims that the police unlawfully treated children the same as adults, given the specific statutory and policy protections in place.
Regarding obligations under section 53(3) of the Justice (Northern Ireland) Act 2002, the court found that the police had regard to the best interests and welfare of children through the Policy Directive and related practices, and that no unlawful failure occurred due to the absence of additional Scottish-style guidance.
Holding and Implications
The court concluded that the statutory regime under the 2007 Act, as supported by the Code of Practice, Policy Directive 13/06, and the oversight of the Independent Reviewer, provides an adequate legal framework to protect children and young people from arbitrary stop and search powers.
However, the court acknowledged that the police service had not fully implemented these protections, particularly regarding recording the triggers for stop and search involving children, but that this has now been remedied.
The appeal is dismissed.
The direct effect is that the police powers to stop and search children under the 2007 Act are lawful when exercised in accordance with the updated procedures and safeguards. No new precedent was established beyond affirming the adequacy of the existing legal framework and the importance of its proper implementation.