Belfast Telegraph

Government failure to consult on changes to stop and search guidelines 'was unlawful'

By Alan Erwin

Government failure to consult on fundamental changes to stop and search guidelines for police in Northern Ireland was unlawful, a High Court judge ruled today.

Mr Justice Justice Treacy held that Secretary of State Theresa Villiers had not met the required duty on amendments to a draft code of practice.

His verdict came in a legal challenge mounted by a man who claims he has been regularly subjected to the procedure.

Emmet McAreavey said until January 2012 he was provided with a written docket every time police exercised their powers under the Justice and Security (NI) Act 2007.

Since then, however, no record was given other than an occasional partly completed information card.

PSNI officers recorded his details on a Blackberry phone, the court heard.

Mr McAreavey's case centred on public consultation around a draft code of practice initiated in December 2012.

It included a provision that any officer carrying out the operation must, where possible, provide a copy of the record via a portable printer.

In May last year the Court of Appeal ruled in a separate case that stop and search powers cannot be properly exercised under the 2007 Act without a code that complies with human rights legislation.

Within days the code of practice was brought into force. 

It contained an amendment removing reference to the portable printer stipulation, leaving only a requirement for an officer to provide a unique reference number (URN) and guidance on how to obtain a full copy.

As part of a wide-ranging judicial review challenge lawyers for Mr McAreavey claimed there was no consultation on the final draft.

Delivering judgement, Mr Justice Treacy noted that one of the major purposes of the drafting was to ensure the use of the stop and search powers complied with the European Convention on Human Rights.

He said: "Whatever the subjective intention of the (PSNI and the Secretary of State) in putting together the draft Code, objectively and from the perspective of interested parties, the provision of on-the-spot written evidence went to the level of safeguards attending the various powers and was therefore fundamental. 

"Truncating the nature and extent of the safeguards in the Code was clearly a fundamental change and one which in the interests of fairness needed to be consulted upon."

The judge held that, if possible, provision of a contemporaneous record appeared to take precedence over a URN.

He confirmed: "The failure to re-consult in respect of fundamental changes to the final code was unlawful."

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