Mr
Justice Treacy, sitting today in the High Court in Belfast, held that the
Secretary of State had failed in her duty to consult in respect of changes to
the draft Code of Practice on the operation of the stop and search powers under
the Justice and Security (NI) Act 2007.
Emmet McAreavey (“the applicant”) told the court that he
had been regularly been stopped and searched by the police under the powers
contained in the 2007 Act. Until approximately January 2012 he had been
provided with a written docket after each incident confirming the power
exercised. Since then, he has not been provided with any record (except on some
occasions when he was given a partly completed information card) and the PSNI
officers have recorded the details on a Blackberry.
On
5 December 2012 the Secretary of State initiated a 12 week public consultation
on a draft Code of Practice under the 2007 Act. The draft included at paragraph
8.78 a provision whereby an officer conducting a search must provide a copy of
the record via a portable printer if he had access to one. On 9 May 2013 the
Court of Appeal delivered its decision in in Re Canning, Fox and McNulty
which stated that the section 21 stop and search power under the 2007 Act cannot
be properly exercised in the absence of a valid and effective code of practice
which ensures Article 8 ECHR compliance. On 15 May 2013 the Code of Practice
was brought into force. It contained an amended paragraph 8.78 which removed
the reference to providing a copy of the record via a portable printer and left
only the part which required an officer to provide a unique reference number
(“URN”) and guidance on how to obtain a full copy of the record.
The
applicant challenged the PSNI’s decision not to provide him with immediate
written documentary evidence and the requirement for him to attend in person at
a police station to obtain a record of the search. He also challenged the
failure before 15 May 2013 of the Secretary of State to implement a Code of
Practice on the use of the stop and search powers, and the actual implementation
from this date claiming that there had been no consultation on the final
draft.
Counsel on behalf of the Secretary of State submitted
that the applicant’s comments about the duty to consult were misconceived as
they were predicated on the assumption that the amendments to the final version
of the Code effectively removed an essential safeguard to the stop and search
process when in fact the draft Code did not actually contain any such
requirement. It was also submitted that as there was no fundamental change in
the Code there was no duty to re-consult.
Counsel on behalf of the Chief Constable contended that
the draft Code did not, on a proper analysis, impose any requirement on police
to provide for contemporaneously printed records to be provided at the time of a
stop and search. It was argued that section 37 of the 2007 Act was silent on
the issues of whether a record must be provided and the format of that record.
The PSNI also submitted that paragraph 8.78 of the Code does not contain any
explicit or implicit requirement to provide for access to portable printers as
standard practice. It was also argued that the draft Code did not mandate the
use of portable printers or the provision of a contemporaneous written record.
Mr
Justice Treacy said that given that one of the major purposes of the drafting of
the Code of Practice was to ensure that the use of the stop and search powers
was ECHR compliant, the nature and extent of the provisions intended to give
essential safeguards to those affected were some of the most fundamental
provisions to be consulted upon:
“Whatever the subjective intention
of the [PSNI and the Secretary of State] in putting together the draft Code,
objectively and from the perspective of interested parties, the provision of on
the spot written evidence went to the level of safeguards attending the various
powers and was therefore fundamental. Truncating the nature and extent of the
safeguards in the Code was clearly a fundamental change and one which in the
interests of fairness needed to be consulted upon.”
Mr
Justice Treacy added that while the draft Code did not impose an absolute
requirement to provide a contemporaneous written record of the search, it did
impose an absolute requirement to do so where the officer “has or has access to
a portable printer for use with the electronic recording equipment”. He further
noted that it seemed to read that if this is not possible, then a URN and
guidance on how to obtain a full copy of the record should be
provided:
“It does therefore seem from a
plain reading of the draft Code that the provision of a contemporaneous record
was to take precedence over the provision of a URN in circumstances where it was
possible to do so. Given this apparent preference in the Code for a
contemporaneous written record it could only have appeared to consultees as a
fundamental safeguard to be generally applied and the provision of the printers
would have been assumed to have been part of this safeguard.”
The
judge did not accept the contention that paragraph 8.73 of the Code was evidence
that the provision of a contemporaneous record was not intended to be standard
practice. He said that this paragraph deals with the basic requirement to
ensure that a record of every stop and search is kept and that the person
searched is informed of how this record of personal information is stored and
how it can be accessed. He said that paragraph 8.78 builds on this duty in that
it assumes that the record is made and then directs the officer as to their
further duty to the person searched to provide a written record or
URN.
Mr
Justice Treacy held that the failure to re-consult in respect of the fundamental
changes to paragraph 8.78 in the final Code was unlawful.