20.7 A Hierarchy of Rights and the Contingencies

of Litigation

One way of addressing the difficulties described above would be to

establish a hierarchy of Convention rights (in which, for example,

freedom of expression was identified as more significant than protec-

tion from invasions of privacy). The European Convention does not

establish a formal hierarchy of rights (Feldman, 1993, p. 554). But

against this point must be set three considerations. First, the juris-

prudence of the European Court of Human Rights identifies freedom

of expression as a particularly important right (see Handyside v. UK

(1976), para. 49). Secondly, s. 12 of the Human Rights Act 1998

accords (as noted above) particularly high importance to freedom of

expression. Thirdly, under the influence of the Human Rights Act,

senior British judges have (as already noted) begun to identify free-

dom of expression as the ‘starting point’ for deliberation in cases

concerning defamation (see, for example, Reynolds (2001), p. 200, per

Lord Nicholls). On this view, freedom of expression should always be

accorded priority over countervailing private interests of the sort

examined in this chapter.

However there is a problem with this view. This concerns what

might be termed the contingencies of litigation. Consider a claimant

510 General Principles of Constitutional and Administrative Law

who seeks a remedy against invasion of privacy. Where his or her

claim rests (ultimately) on Art. 8 of the Convention, that provision

becomes the starting point for judicial deliberation. In other words

privacy should be protected against all but an invasion, whether by

freedom of expression or by some other countervailing concern, that

meets the test of proportionality. On this basis privacy is the stronger

concern. Conversely where a plaintiff relies on freedom of expression,

the countervailing concern raised by the defendant of privacy is

weaker, since this time it is privacy that must be submitted to the

proportionality test. Take for example a dispute between neighbours.

A claims that freedom of expression entitles him to hold a hymn

singing meeting in front of his house, B claiming that this causes undue

disturbance in a quiet neighbourhood. The outcome might well be

different according to whether B is seeking an injunction against A or

A is suing B for assault.

Summary

20.1 Historically, the protection given, in the UK, to freedom of expression has

been modest. On Dicey’s account, freedom of expression had the status of a

residual liberty that could be abrogated by the legislature. This state of

affairs has been altered by the incorporation of the European Convention

on Human Rights (ECHR), which establishes a qualified right to freedom of

expression.

20.2 The right to freedom of expression enunciated in Art. 10 stands in an uneasy

relationship with two bodies of private law: defamation law and the law

relating to breach of confidence. The protection of reputation and confi-

dences necessarily entails the restriction of expressive activity. Hence, the

uneasy relationship mentioned above. A similarly uneasy relationship can

be expected to exist between Art. 10 and civil law-based protections against

invasion of privacy grounded on Art. 8 of the ECHR.

20.3 Freedom of expression can be regarded as intrinsically valuable since it is a

‘constitutive’ element of a just political order. Free expression can also be

regarded as valuable in that it provides a means to a variety of significant

ends. These ends include self-actualisation, the pursuit of truth, and the

promotion of tolerance.

20.4 In recent years, a number of features of defamation law have been modi-

fied with a view to extending the protection given to freedom of expression.

Local authorities, government departments and political parties can no

longer maintain claims. The availability of damages (both compensatory and

exemplary) has been limited. The scope of the qualified privilege defence

has been extended to embrace the communication by the press to the public

of politically significant material.

20.5 Public officials and politicians can bring defamation claims on the same

basis as private individuals. To bring defamation law into closer alignment

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Freedom of Expression and Competing Private Interests

with the European Court of Human Rights’ Article 10 jurisprudence, it will be

necessary to reduce the level of reputational protection afforded to public

officials and politicians.

20.6 Both the judiciary and Parliament have sought to establish a defensible

balance between expression-related interests and the various interests

protected by private law that have been discussed in this chapter. In, for

example, the sphere of defamation law, a variety of institutional means have

been employed to this end. They include, inter alia, the specification of a

number of defences (e.g., fair comment), the use of jury trials, and a restrictive

approach to the granting of injunctive relief.

20.7 Article 10 of the European Convention on Human Rights and the law of

defamation law each prioritise an interest (free expression in the case of Art.

10 and reputation in the case of defamation law) that brings each into a

relationship of tension with the other. This is because the respective priorities

of the relevant areas of law are uncombinable.

20.8 The proportionality principle affords a means by which judges can seek

to establish a defensible accommodation of expression-related and compet-

ing interests in, inter alia, reputation. But, in using this principle, judges will

bear considerable burdens of judgement. They will have to determine when

limitations on expressive activity are (a) strictly necessary in order (b) to

pursue a generally beneficial goal. (Burdens of judgement are also borne by

judges when applying many of the other norms discussed in this book.

A prominent example is provided by the Wednesbury standard of un-

reasonableness (which features in the law relating to judicial review). See

Chapter 14.)

20.9 The action for breach of confidence has been identified by members of the

judiciary as affording a means by which to secure some of the privacy-

related interests embraced by Art. 8 of the European Convention on Human

Rights. See Douglas v. Hello! Ltd (2001) and Thompson and Venables v.

News Group Newspapers Ltd (2001).

20.10 While the action for breach of confidence provides protection against

disclosure of information, it does not provide protection against the adverse

consequences that may from from publicity being given to information that is

publicly available. This being so, the common law will have to be further

elaborated in order to ensure that domestic law complies with Art. 8 of the

European Convention on Human Rights.

Further Reading

D. Feldman, Civil Liberties and Human Rights in England and Wales (Oxford:

Clarendon Press, 1993), chapters 12 and 13.

K. Greenawalt, ‘Free speech justifications’ (1989) 89 Columbia LR 119.

I. Hare, ‘Vertically challenged: private parties, privacy and the Human Rights Act’

(2001) 5 European Human Rights Law Review 526.

I. Loveland, ‘The constitutionalisation of political libels in English common law?’

[1998] Public Law 633.

G. Phillipson and H. Fenwick (2000) ‘Breach of confidence as a privacy remedy in the

Human Rights Act era’ 63 Modern LR 660.

512 General Principles of Constitutional and Administrative Law

Exercises

20.1 Freedom of expression has been regarded as a residual liberty. With the

incorporation of the ECHR, it now enjoys more extensive legal protection.

How should this protection be characterised?

20.2 The reputational interests of public officials and politicians are protected by

defamation law to an extent that does not comport with the requirements of

Art. 10 of the ECHR. Discuss.

20.3 Why do the right to freedom of expression as protected by Art. 10 of the

ECHR and the bodies of private law discussed in this chapter stand in a

relationship of tension?

20.4 A UK statute provides that any person who publishes material that impinges

on the privacy of any member of the Royal Family is guilty of an offence.

Your client is a newspaper editor who wishes to challenge this provision.

Advise her as to the possible courses of action available to her and as to the

possible outcomes including getting the law changed. What would be the

position if she published personal photographs of a member of the royal

family and were charged under the statute?

20.5 Paul is the leader of the ‘Sunday Welcomers’ a group of Evangelical

Christians that meet every Sunday afternoon at Paul‘s house to hold a rally

that includes the extensive singing of hymns to the accompaniment of a

brass band. Paul has recently moved to a house next to that occupied by

Melanie who spends Sunday afternoon watching television and drinking

wine. Melanie, incensed by the noise from Paul‘s house, turns up the volume

of her television to the point where Paul complains that the hymn singing is

becoming difficult to pursue. Advise Paul and Melanie as the legal position

under the Human Rights Act 1998.

21 Police Powers of Arrest

and Search

21.1 Introduction

The days are long gone when a police constable was viewed as little

more than a citizen in uniform, having few powers peculiar to that

office. Influences such as, for example, demographic changes, the

increase in regulatory legislation and the developing nature of crime

in an industrial and technological society, have engendered demands

that special and extended powers be granted in order that the police

may effectively carry out their work. Nevertheless, the policing of

labour disputes and civil unrest during the 1980s, and animal rights and

environmental protests in the 1990s combined with increasing revela-

tions of miscarriages of justice and racism, have greatly tarnished the

image and reputation of the profession. The discernible movement

away from a consensus and reactive approach towards proactive

policing, the insatiable attention of the media and the highly politi-

cised nature of law and order, have also served to highlight concerns

about civil liberties. Accordingly, a compromise is constantly being

sought between the seemingly inevitable extension of police powers

and the accountability of those who are to exercise them. The tradi-

tional Dicean approach, however, still remains dominant. This entails

that police action is unlawful unless it is specifically justified by law. For

example, if someone is detained beyond the period prescribed by

law or even beyond the time specified for a review of the detention,

then, from that moment, the prisoner can sue for false imprison-

ment (Roberts v. Chief Constable of Cheshire Police (1999)). Moreover,

the Human Rights Act 1998 (which makes the European Convention

of Human Rights part of English law) expressly recognises that a

violation of convention rights by the police is unlawful.

As illustrated recently by the Criminal Justice and Police Act 2001,

developments tend to be somewhat one-sided. Police powers have been

extended but without a corresponding increase in safeguards for the

suspect. The 2001 Act, for example, allows the police to impose ’on the

spot’ penalties for disorderly behaviour, to close licensed premises

immediately as a result of drink-related offences, to confiscate alcohol

from young persons and to impose child curfew schemes. Other

513

514 General Principles of Constitutional and Administrative Law

legislative developments include, for example, wide powers to stop and

search for weapons and to take DNA samples under the Criminal

Justice and Public Order Act 1994; phone tapping and other forms of

intrusive surveillance (Police Act 1997); increased rights to take non-

intimate body samples (Criminal Evidence (Amendment) Act 1997;

and additional stop and search and detention powers (Terrorism Act

2000, Knives Act 1997, Anti-Terrorism Crime and Disorder Act 2001).

21.1.1 The Human Rights Act 1998

Importing the European Convention of Human Rights into domestic

law entails that disputes as to breaches of Convention Rights can be

dealt with by national courts. Those Convention Rights which will

effect police powers are:

. Article 3 which provides that ’no one shall be subjected to torture

or to inhuman or degrading treating or punishment’. This gives an

absolute right which cannot be restricted in any circumstances.

‘Inhuman treatment’ is defined as treatment which causes intense

physical and mental suffering whereas ’degrading treatment’ is treat-

ment which arouses feelings of fear, anguish and inferiority capable

of humiliating and debasing the victim. Accordingly, in Ireland v.

UK (1978) the sensory deprivation and disorientation of detainees

violated Art. 3.

. Article 5 which promotes the right to liberty and security of an

individual, subject to lawful powers of arrest and detention. This

offers a test for the legality of a person’s detention and sets out a

list of safeguards which include the rights to be informed of the

reasons for the arrest, taken promptly before a court and either tried

within a reasonable time or bailed, and to compensation if the

detention contravenes Art. 5. The Terrorism Act 2000, for example,

was framed so as to comply with Art. 5.

. Article 6 which confers a right to a fair trial and a presumption of

innocence. This contains a list of basic rights activated once an

accused has been charged with a criminal offence. These include the

rights to have a court interpreter, to have adequate time and

facilities for the preparation of a defence and, when the interests of

justice require it, to receive free legal assistance.* Article 8 offers

everyone ’the right to respect for his private and family life, his

home and his correspondence’. This can be overriden ’in accordance

with the law’ and when in the public interest (for example, to ensure

public safety and/or the economic well-being of the country; to

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Police Powers of Arrest and Search in the Investigation of Crime

prevent crime, to protect health and morals, and/or to protect the

rights and freedoms of others). This article covers policing methods

such as surveillance, telephone tapping and obtaining medical or

financial data.

21.1.2 The Police and Criminal Evidence Act 1984

The Police and Criminal Evidence (PACE) Act represents the first

major attempt to codify and clarify police powers (unless the contrary

is expressed, all statutory references within this chapter are to this Act).

The underlying purposes of the Act are to foster an overall strategy

in the fight against crime, to abolish anomalies in the pre-existing law,

to provide the police with adequate and clear powers, and to offer

strengthened safeguards against potential abuse. These safeguards pri-

marily concern the clearer definition and communication of the rights

and entitlements of suspects, the formalisation of the supervisory role

of senior police officers, and the maintenance of detailed records con-

cerning how and why the police exercise their powers. Despite the

statistical data, empirical research and commentary which have now

been published, the extent to which the objectives of the Act have been

achieved remains open to debate.

21.2 Violation of PACE and Codes

The Police and Criminal Evidence Act 1984 embodies an uneasy

tension between state powers and individual freedoms. The legislation

is supplemented by a series of Codes of Practice which are designed to

explain and amplify the statutory provisions. The Codes regulate stop

and search (Code A); search and seizure (Code B); the treatment

of detainees (Code C); the identification of suspects (Code D); and

the tape-recording of interviews (Code E). Each contains ‘Notes for

Guidance’ which, although technically not part of their respective

Code, provide further guidance as to the application and interpreta-

tion of the substantive provisions. The Codes are admissible in evi-

dence and their provisions must be taken into account, where relevant,

in determining any issue (fact or law) which arises in criminal or civil

proceedings (s. 67 (11); R. v. Kenny (1992)).

A breach of the Act or the Codes may make an officer liable to

disciplinary action (s. 67 (8)) and, although it does not per se give rise to

any criminal or civil liability (s. 67 (10)), the breach could also provide

the basis for subsequent litigation (e.g. habeas corpus, assault, battery,

516 General Principles of Constitutional and Administrative Law

false imprisonment and misfeasance in public office). Ironically, those

who are most vulnerable to abuse are perhaps those who are the least

equipped to pursue a complaint or to commence litigation. A violation

may offer a tactical advantage in subsequent dealings with the Crown

Prosecution Service appertaining to, for example, the discontinuance of

a prosecution or plea-bargaining. Although such sanctions may pro-

vide an encouragement to the police to exercise their powers properly,

they clearly offer no guarantee that the rights of a suspect will be

observed. This is particularly so in the case of stop and search powers

where the existence of Code A appears to have made little difference to

traditional modes of policing.

21.2.1 Exclusion of evidence

Perhaps the most effective incentive to conduct investigations properly,

however, is that evidence obtained in contravention of the statutory

provisions or the Codes may be excluded where ‘the admission of

the evidence would have such an adverse effect on the fairness of the

proceedings that the court ought not to admit it’ (s. 78). In order to

ensure a fair trial there is also a residual discretion where the probative

value of the evidence is outweighed by its prejudicial effect (s. 82 (3);

R. v. Sang (1980)).

No guidance is given by the Act as to when it would be unfair to the

accused or when that discretion is to be exercised. The discretion will be

interfered with only when it can be said that no reasonable judge could

reach that conclusion (R. v. Quinn (1997)). If the evidence is admitted

the jury must be directed that it was not obtained in accordance with

PACE (R. v. MacMath (1997)). Instances of where exclusion has

occurred are varied, and include, for example, where the detainee has

been wrongly denied access to legal advice (R. v. Samuel (1988)); when

the breaches of the Codes were ‘flagrant’, ‘deliberate’ and ‘cynical’

(R. v. Canale (1990)); when the detainee was unadvised as to his rights

under the Act (R. v. Beycan (1990)); where a DNA sample was obtained

by deception (R. v. Nathanial (1995)); and when the sole identifica-

tion evidence arose after the witness saw the accused in handcuffs

(R. v. Bazil (1996)) and when the interpreter for the accused was called

as a prosecution witness (Bozkurt v. Thames Magistrates (2001)).

Exclusion does not automatically follow on from a breach of the

Act or Codes and is governed by the judge’s conception of ‘justice’ and

‘fairness’ as rooted in the facts of a particular case. In R. v. Hassan

(1995), for example, an officer’s interview notes were admitted even

517

Police Powers of Arrest and Search in the Investigation of Crime

though the subject had been denied the rights to a lawyer and to con-

tact a third party. Similarly in R. v. Barker (1996) evidence obtained

by an unlawful search was admissible. As a rule of thumb, the opera-

tion of s. 78 will require there to be ‘bad faith’ on the part of the police

(R. v. Anderson (1993)). For example, in R. v. Ridley (2000) evidence

was excluded because the police interview was conducted in a tenden-

cies, persistent, aggressive and prurient manner. It is, therefore, for the

court to balance the interests of justice in prosecuting criminals with

the need to discourage abuses of process by the police. As a general

rule, therefore, significant and substantial breaches of PACE are likely

to lead to the exclusion of evidence and this is particularly so when an

admission is obtained subsequent to such breaches (R. v. Allen (2001)).

Although the appellate courts are reluctant to interfere with the find-