Divisional Court rules that search of 200 protestors on a train was lawful; suspicion of the protesters as a group was sufficient, specific suspicion of each protester was not necessary

Dijen Basu represented the Commissioner before the Divisional Court (Hallett LJ and McCombe J) in successfully resisting a claim brought by Liberty: R (Howarth) v Commissioner of Police of the Metropolis [2011] EWHC 2818 (QB). Police had intelligence that protesters were in possession of a large amount of chalk and molasses intended for use in making non-permanent marks at a demonstration at an oil refinery. It was common ground that such marks would constitute criminal damage, albeit transient and not serious. Officers searched 200 protesters on a train on their way to the refinery, searching all of those passengers who appeared to them to be protesters. The claimant claimed that the officer who searched him did not have reasonable grounds for suspecting him of being in possession of such articles and that, even if he did, he exercised his discretion to search him irrationally and the search constituted an unlawful interference with his rights under Articles 8, 10 and 11 of the ECHR. He claimed that the searches were part of a ‘blanket’ search of all the protesters. The Divisional Court rejected the claim, holding that the officer had the requisite suspicion, because he had reasonable grounds for suspecting the protesters as a group, and that his decision to search was neither irrational nor disproportionate. They rejected the suggestion that the apprehended offences were so trivial that police should wait and see if any offences were committed at the refinery and act only then.

At §41, McCombe J (with whom Hallett LJ agreed) said this:-

"The rights of expression and of assembly protected by the Convention are indeed precious in a democratic society. However, there is a significant danger of the law becoming "over precious", in a rather different sense, about minimal intrusions into privacy and alleged indirect infringements of the rights of privacy, assembly and expression which are the price today of participation in numerous lawful activities conducted in large groups of people. I do not forget that many such activities, such as travel and attendance at sporting and entertainment events are not rights protected by the Convention. I also note the point made by the European Court in Gillan that persons attending private events and those travelling by air can be taken to consent to such searches. Expression and assembly, like those other lawful activities, are nonetheless encouraged and fostered, rather than hindered, by sensible and good natured controls by the authorities and the sensible and good natured acceptance of such controls by members of the public."

Dijen Basu is recognised by Chambers and Partners as an "... all round performer ... ". He represents several UK police forces, defending claims for judicial review and civil actions.