Stop and search is unconstitutional
In Bermuda, police officers have the power, under various laws, to stop and search people (and vehicles) if they have reasonable grounds to suspect these individuals have stolen goods, drugs or weapons. These powers are a legitimate tool of law enforcement, and they play a vital role in rooting out the recent scourge of gang-related crime.
But police have additional powers to stop and search individuals under section 315F of the Criminal Code, a provision that was introduced in 2005 and amended in 2010.
The powers conferred by section 315F operate as follows:
l They are limited to a specific geographic area identified as one where serious violence may take place or where people are carrying weapons.
l An officer of the rank of inspector or above may authorise the use of these powers in an area where he reasonably suspects that people are carrying weapons, that serious violence may take place, and where he thinks it is expedient to do so to prevent that violence.
l When a section 315F authorisation is in place, it allows any police officer in uniform to stop and search any person or vehicle (driver and passenger) for weapons within the relevant geographical area. He may do so whether or not he has any grounds for suspecting that the person or vehicle is carrying offensive weapons or dangerous instruments.
Based on the decision of the European Court of Human Rights in 2010 in the case of Gillan v UK, the Centre for Justice believes section 315F contravenes the Bermuda Constitution for the following reasons.
First, section 7 of the Constitution guarantees that individuals will not be subjected to a search of person or property without their consent, unless the search is required in the interest of public safety and public order or for the purpose of protecting the rights and freedoms of others.
The Gillan v UK case concerned the lawfulness of terrorism stop and search powers in the UK which are almost identical to the provisions of section 315F. The European Court decided that the powers are, neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. They are, therefore, not in accordance with the law and it follows that there has been a violation of Article 8 of the European Convention of Human Rights.
Article 8 of the European Convention is materially identical to section 7 of the Bermuda Constitution. Therefore, section 315F contravenes section 7 for the following reasons:
1. The initial authorization can be made when it is expedient to do so, i.e. no more than advantageous or helpful. The police do not need to consider whether authorizing stop and searches are actually necessary.
2. More fundamentally, the initial authorisation gives individual officers a wide discretion to stop and search anyone. Provided that someone is stopped to be searched for prohibited articles, the officer does not even have to have grounds for suspecting the actual presence of such articles.
3. There is a clear risk of randomness with such broad powers. In the absence of any obligation on the part of an officer to show a reasonable suspicion, there is no way to prove whether or not the power was properly exercised.
4. Neither the initial authorization nor a stop and search under that authorization is sufficiently restricted or adequately safeguarded against abuse, and is therefore not in accordance with the law as required by the Constitution.
Second, section 5 of the Bermuda Constitution provides that no person shall be deprived of his personal liberty unless it is authorised by law. One of the circumstances in which it is authorised by law is upon reasonable suspicion that the person has committed, is committing or is about to commit an offence.
In the Gillan case the exercise of stop and search powers was not found to be a deprivation of liberty, but the European Court did not rule out that it could be in some cases. In effect, stopping and searching someone could amount to a contravention of section 5, depending on the degree or intensity of the stop and search. As currently drafted, section 315F potentially breaches section 5.
Finally, section 12 of the Constitution protects us from discrimination on the basis of race. Based on a sample survey released by the Bermuda Police Service in 2010, 85 percent of those stopped were classified as black, ten percent white and five percent black and white. Even though one cannot draw conclusions from such a small sample survey, we fear that the exercise of the section 315F powers may have had a disproportionate impact on the black community. Therefore, there is a real possibility that the section 315F powers breach section 12 of the Constitution.
After consultation with our Sub-Committee for Criminal Justice, we propose the repeal of section 315F as we believe stop and search powers under Police and Criminal Evidence Act 2006 are adequate.
l Roll back the 2010 amendment to the 2005 version, which requires the authorisation to be based on reasonable belief (i.e. intelligence-based) and the period of authorisation to be 24 hours rather than two weeks;
l Anywhere, where it says expedient in the section, replace it with necessary.
We know of one innocent young man who has been stopped and searched no fewer than nine times. His patience is admirable. Had he resisted on that seventh, eighth or ninth occasion he could have faced a future with a criminal record, a $500 fine and three months imprisonment.
The balance between public safety and liberty was put by Lord Denning best:
Every society must have the means to protect itself from marauders. It must have powers to arrest, to search, and to imprison those who break the laws. So long as those powers are properly exercised, they are themselves the safeguards of freedom. But powers may be abused, and, if those powers are abused, there is no tyranny like them. It leads to the state of affairs when the police may arrest any man and throw him into prison without cause assigned. It leads to the search of his home and belongings on the slightest pretext or on none. It leads to the hated Gestapo and the police state.
The rights enshrined in the Constitution must be jealously safeguarded. Around the world people have fought long and hard for such rights; many have paid with their lives. In Bermuda, our forebears struggled to ensure their children and grandchildren would not be subject to continuing social injustice.
If we stand idly by and allow our constitutional rights to be eroded on one single issue, then we are putting the whole Constitution at risk of becoming a mockery.
The Centre for Justice is an independent, non-governmental, non-profit, non-partisan organisation. Send questions and comments to firstname.lastname@example.org
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