09 May 2014

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.