R (on the application of Roberts) v Commissioner of Police of the Metropolis and another [2015] UKSC 79

Mrs Roberts, a support worker of African-Caribbean heritage, was stopped and searched without suspicion on a London bus under section 60 of the Criminal Justice and Public Order Act 1994. The Supreme Court held the suspicionless stop and search power was compatible with article 8 ECHR.

Facts

On 9 September 2010, against a background of significant gang-related violence in the London Borough of Haringey, Superintendent Barclay issued an authorisation under section 60 of the Criminal Justice and Public Order Act 1994, permitting suspicionless stop and search in most of the borough for a defined period. The authorisation was based on numerous intelligence reports concerning rival gangs (the Wood Green Mob and the Grey Gang), recent stabbings and an attempted murder.

Mrs Roberts, a 37-year-old support worker of African-Caribbean heritage with no criminal record, was travelling on the No 149 bus without having paid the correct fare. When questioned, she gave a false name and address and denied having identification. PC Reid attended and, noting Mrs Roberts’ nervous behaviour and tight grip on her bag, decided to search her under section 60. Mrs Roberts attempted to walk away and was restrained and handcuffed before the search proceeded. She was arrested for obstructing the search and later cautioned (the caution was subsequently quashed by consent).

It was conceded that PC Reid acted in accordance with section 60 and that any interference with Mrs Roberts’ article 8 rights was proportionate. The sole remaining issue was whether section 60 itself satisfied the Convention requirement that interferences be ‘in accordance with the law’.

Issues

The central issue was whether the suspicionless stop and search power conferred by section 60 of the 1994 Act is ‘in accordance with the law’ within the meaning of article 8(2) ECHR, namely whether it contains sufficient safeguards against arbitrary or discriminatory use. The appellant sought a declaration of incompatibility under section 4 of the Human Rights Act 1998.

Arguments

Appellant

Mr Southey QC argued that section 60 lacks sufficient safeguards against arbitrary or discriminatory use. He relied on Gillan v United Kingdom, contending that without reasonable suspicion it is difficult to prove the power was improperly exercised. He submitted that random unpredictability could be achieved by alternative methods (such as the Mexican red/green light system) without leaving the choice to individual officers. He also argued that subsequent improvements introduced under the Best Use of Stop and Search Scheme (BUSS) demonstrated the inadequacy of section 60 as originally framed.

Respondents

The Commissioner and the Secretary of State argued that section 60 is materially different from the powers struck down in Gillan and contains tightly framed grounds, temporal and geographical limits, and is supplemented by extensive safeguards in PACE, Code A, and Metropolitan Police Standard Operating Procedures. Lord Keen QC contended that the BUSS reforms were irrelevant to the question of legality and reflected broader policy concerns about community relations, not legal deficiency.

Judgment

The Supreme Court unanimously dismissed the appeal. Lady Hale and Lord Reed (with whom Lord Clarke, Lord Toulson and Lord Hodge agreed) held that section 60 is compatible with article 8 ECHR.

The Court reaffirmed that ‘in accordance with the law’ requires more than mere domestic legality: the law must be compatible with the rule of law, sufficiently accessible and foreseeable, and contain adequate safeguards against arbitrary or discriminatory use. The Court reviewed the relevant authorities, including R (Gillan) v Commissioner of Police of the Metropolis, Gillan v United Kingdom, Colon v The Netherlands, and Beghal v DPP, noting that Colon shows the Strasbourg court does not regard every suspicionless stop and search power as inherently incompatible with article 8.

The Court emphasised that the section 60 power must be read together with section 6 of the Human Rights Act 1998 (requiring police to act compatibly with Convention rights) and the Equality Act 2010 (prohibiting racial discrimination). It then enumerated extensive safeguards constraining the power:

Authorisation safeguards

The authorising officer must reasonably believe that the statutory grounds exist; the grounds are tightly framed (more so than in Gillan); the belief must be evidence-based and recorded in writing; the officer must consider necessity and proportionality; authorisations are time-limited (24 hours, renewable once); the geographical area must be limited; and the authorisation is subject to review.

Operational safeguards

Briefing and de-briefing; community engagement; review by a superintendent where applicable; and post-operation evaluation including disproportionality analysis.

Encounter safeguards

The officer must be uniformed and identify themselves; explain the power, object and reasons for the search; record this in writing (Form 5090); and the search is limited to seeking offensive weapons or dangerous instruments. Sections 2 and 3 of PACE, Code A, and the Metropolitan Police Standard Operating Procedures (incorporating the GOWISELY and PLAN B mnemonics) provide further structured constraints.

The Court concluded that these safeguards, taken collectively, render section 60 compatible with article 8. The randomness of suspicionless searches is essential to their deterrent effect and detection function, and alternative arrangements (such as random selection mechanisms) would not be practical on the street. The BUSS reforms were not evidence that the prior framework was unlawful.

Implications

The decision confirms that suspicionless stop and search powers can satisfy the Convention requirement of legality where they are accompanied by sufficient safeguards against arbitrary or discriminatory exercise. The compatibility analysis must consider the statutory power in conjunction with PACE, Codes of Practice, force-level operating procedures, and the overlay of section 6 of the Human Rights Act and the Equality Act 2010.

The judgment draws a clear distinction between section 60 and the much broader power struck down in Gillan v United Kingdom: section 60 has tighter statutory grounds, shorter authorisation periods, narrower geographical reach, and more structured record-keeping requirements. The case affirms the approach in Beghal that compatibility must be judged by reference to how the system actually works in practice, including the cumulative effect of multiple layers of legal and administrative constraint.

Practically, the decision is significant for police forces, individuals subject to stop and search, and those scrutinising policing powers. It confirms that individual misuse of section 60 powers, while a breach giving rise to remedies under section 8 of the Human Rights Act and potential disciplinary sanctions, does not render the underlying statutory framework incompatible with the Convention. The Court recognised that no system of safeguards can prevent every unlawful act, but that the existence of remedies and the framework of constraints means the law itself is not to blame.

The Court also acknowledged the wider social context, observing that young people from black and minority ethnic groups, while potentially disproportionately affected by stop and search, are also disproportionately the victims of the gang violence such powers are intended to prevent. The decision leaves open the possibility of challenges in individual cases where the safeguards have not in fact been observed.

Verdict: Appeal dismissed. The Supreme Court held that section 60 of the Criminal Justice and Public Order Act 1994 is compatible with article 8 of the European Convention on Human Rights. The Court declined to make a declaration of incompatibility, holding that the power, when read with its accompanying safeguards in PACE, Code A, the Metropolitan Police Standard Operating Procedures, the Human Rights Act 1998 and the Equality Act 2010, is ‘in accordance with the law’.

Source: R (on the application of Roberts) v Commissioner of Police of the Metropolis and another [2015] UKSC 79