Stop and search powers in UK terrorism investigations: a limited judicial oversight?

Abstract

At the pre-trial stage of counter-terrorist investigations, an ‘Anglo-Saxon’ indulgence towards street-level policing powers has been brought to task by European human rights norms, especially privacy, which are exerting new forms of control over policing discretion and opening judicial oversight over traditional policing activity. This article examines these trends in relation to suspicionless counter-terrorist stop and search. While the European Court of Human Rights applied robust scrutiny in the case of Gillan v. United Kingdom, in stark contrast to the approach by the House of Lords, there exists a number of challenges which are threatening to weaken judicial scrutiny in this area. First, more recent European Court of Human Rights cases show a more indulgent stance being taken towards policing powers. Second, the precautionary nature of suspicionless counter-terrorist stop and search raises a number of difficulties in relation to effective oversight. In addition, it is a counter-terrorist measure of general application which, to date, has not been subjected to particularly rigorous scrutiny.