Roberts, R (on the application of) v Commissioner of Police of the Metropolis and ano

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Judgment about compatibility of law re stop and search with human rights act - worth reading.

The law in question is contained in section 60 of the Criminal Justice and Public Order Act 1994. It is now common ground that the power of “suspicionless” stop and search which it contains is an interference with the right to respect for private life, protected by article 8 of the European Convention on Human Rights, although perhaps not at the gravest end of such interferences. It is also common ground that the power pursues one of the legitimate aims which is capable of justifying such interferences under article 8(2), namely the prevention of disorder or crime. The argument is about whether it is “in accordance with the law” as is also required by article 8(2). In one sense, of course it is, because it is contained in an Act of the United Kingdom Parliament. But the Convention concept of legality entails more than mere compliance with the domestic law. It requires that the law be compatible with the rule of law. This means that it must be sufficiently accessible and foreseeable for the individual to regulate his conduct accordingly. More importantly in this case, there must be sufficient safeguards against the risk that it will be used in an arbitrary or discriminatory manner. As Lord Kerr put it in Beghal v Director of Public Prosecutions (Secretary of State for the Home Department and others intervening) [2015] UKSC 49; [2015] 3 WLR 344, at para 93, “The opportunity to exercise a coercive power in an arbitrary or discriminatory fashion is antithetical to its legality” in this sense.

48. It would not, therefore, be right to make a declaration of incompatibility in this case. Neither would it be appropriate to make a declaration that the Guidance current at the time, or now, was inadequate or that this particular search was not “in accordance with the law”. We would dismiss this appeal.