Re: In need of desperate help!


<randolf17a@xxxxxxxxxxx> wrote in message
news:1150384508.940566.91110@xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
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Hi Guys

I have a case brief due in 4 days and i really need some help in
finding the ratio of this case - link is below. I was also wondering if
anyone could help on the analysis of this case eg effects on human
rights, discrimination.Thanks guys i really need your help

http://www.bailii.org/cgi-bin/markup.cgi?doc=/uk/cases/UKHL/2006/12.html&query=gillan&method=all


What is a case brief? Are you doing A level law, or what exactly?

If you want a precis of what the case was about, this one (from Sweet &
Maxwell, "Current Legal Information", the best reference work for English
law) covers it very well:

The appellant (G) appealed against a decision of the Court of Appeal ([2004]
EWCA Civ 1067, [2005] Q.B. 388) that the "stop and search" provisions in the
Terrorism Act 2000 s.44 were not unlawful. G, a student, had been stopped
and searched under s.44 when he came to London on September 9, 2003 to
protest against an arms fair being held in east London. The Assistant
Commissioner of the Metropolitan Police had given an authorisation under
s.44(4) on August 13. It covered the whole of the Metropolitan Police
District and was expressed to have effect for 28 days. Such authorisations
had been made continuously for successive periods since s.44 had come into
force in February 2001. G argued that (1) s.44(3) should be interpreted as
permitting an authorisation to be made only if the decision-maker had
reasonable grounds for considering that the powers were necessary and
suitable, in all the circumstances, for the prevention of terrorism; (2) the
authorisation was excessive in respect of its geographical coverage; (3) the
successive authorisations had in effect authorised a continuous ban
throughout the London area; (4) a person stopped and searched was deprived
of his liberty in breach of the Human Rights Act 1998 Sch.1 Part I Art.5;
(5) the exercise of the power to stop and search involved a breach of
Art.8(1) of the Convention; (6) the power to stop and search infringed the
rights to freedom of expression and freedom of assembly under Art.10 and
Art.11 of the Convention respectively; (7) for the purposes of the
Convention, the power to stop and search was not "prescribed by law" or "in
accordance with the law".
Held, dismissing the appeals, that (1) the word "expedient" in s.44(3) had a
meaning quite distinct from "necessary". It was true that s.45(1)(b), in
dispensing with the condition of reasonable suspicion, departed from the
normal rule applicable where a constable exercised a power to stop and
search, so that one would incline to give "expedient" a meaning no wider
than the context required. But examination of the statutory context showed
that the authorisation and exercise of the power were very closely
regulated, leaving no room for the inference that Parliament had not meant
what it said. There was every indication that Parliament had appreciated the
significance of the power that it was conferring but thought it an
appropriate measure to protect the public against the grave risks posed by
terrorism, provided the power was subject to effective constraints. The
legislation embodied a series of such constraints. (2) The authorisation was
not excessive in respect of its geographical coverage. The first respondent
commissioner and the second respondent secretary of state had shown that
they had made considered and informed evaluations of the terrorist threat.
(3) The authorisations and subsequent confirmations complied with the letter
of the statute, and the evidence contradicted the inference of a routine
bureaucratic exercise. In the circumstances, there was no material to
justify the conclusion that the authorisation of August 13 or the subsequent
confirmation were unlawful. (4) The power to stop and search did not involve
a deprivation of liberty under Art.5. The procedure would ordinarily be
relatively brief, and the person stopped would not be arrested, handcuffed,
confined or removed to any different place. In the absence of special
circumstances, such a person should not be regarded as being detained in the
sense of being confined or kept in custody; he was more properly to be
regarded as being detained in the sense of being kept from proceeding or
kept waiting, Guzzardi v Italy (A/39) (1981) 3 E.H.R.R. 333 applied. In any
event, assuming the detention was lawful, the respondents could rely on the
exception in Art.5. (5) It was doubtful whether an ordinary superficial
search could be said to show a lack of respect for private life. It was
clear from Convention jurisprudence that intrusions had to reach a certain
level of seriousness to engage the operation of the Convention. In any
event, the respondents could rely on the exception in Art.8(2). (6) It was
hard to conceive of circumstances in which the power to stop and search,
properly exercised, could give rise to an infringement of Art.10 or Art.11.
If it did, it was likely that the restriction would fall within the heads of
justification in Art.10(2) and Art.11(2). (7) The lawfulness requirement in
the Convention addressed supremely important features of the rule of law.
The exercise of power by public officials, as it affected members of the
public, had to be governed by clear and publicly accessible rules of law.
The public must not be vulnerable to interference by public officials acting
on any personal whim, caprice, malice, predilection or purpose other than
that for which the power was conferred. That was what, in the instant
context, was meant by arbitrariness, which was the antithesis of legality.
That was the test that any interference with or derogation from a Convention
right had to meet if a violation was to be avoided. The stop and search
regime did meet that test. The 2000 Act informed the public that the powers
were, if duly authorised and confirmed, available. It defined and limited
the powers with considerable precision. Anyone stopped and searched had to
be told, by the constable, all he needed to know. In exercising the power,
the constable was not free to act arbitrarily, and would be open to a civil
suit if he did.


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