第54集－續談截查(英國)
Loewenstein今日反而想睇吓英國嗰邊係點睇stop & search。
R (Roberts) v Commissioner of Police of the Metropolis
喺英國，如果警察所執行嘅法律權力有違Schedule 1 HRA 1998，可以利用s.4 HRA 1998發出一份Declaration of Incompatibility，藉以議會或官員修訂法例以附合人權法案要求。
咁當然有bug喇，政府話喱個係national security就KO咗，GCHQ case就類似係咁，national security係non-justiciable嘛。
當中亦提到，要考慮stop & search是否合乎法律原則，除咗睇法律原文，亦要視為實際操作。
...in considering whether the legality principle was satisfied, “one must look not only at the provisions of the statute or other relevant instrument which gives rise to the system in question but also at how that system actually works in practice"...
不過法庭認為，HRA 1998同 EA 2010 都可以作為法律上嘅約束措施，而且現行機制下嘅申訴程序同埋處罰亦係濫權嘅後果。
...has to be read in conjunction with section 6(1) of the Human Rights Act 1998, which makes it unlawful for a police officer to act in a manner which is incompatible with the Convention rights...has also to be read in conjunction with the Equality Act 2010, which makes it unlawful for a police officer to discriminate on racial grounds in the exercise of his power...The result of breaching either will be legal liability and probably disciplinary sanctions as well...
哪怕Roberts喱單案講嘅係Anti-terrorist嘅stop & search power，但當中提到 Expediency v Necessity，我相信將會係之後探討612當日警方stop & search問題嘅重要部分。
喺最後部分，法官提到除咗法例上亦有其他工具去防範相對stop & search濫權行為。
...is to leave out of account all the other features, contained in a mixture of the Act itself, PACE and the Force Standard Operating Procedures, which guard against the risk...
就「授權」、「執行」、「實際行動」三個方面，喺第44、45、46段亦加以闡述（應該都係copy & paste），以便法庭判斷當時個案中嘅stop & search是否在「民主社會中必要以防止罪行」。
44. First, as to the authorisation itself: (i) the officer has reasonably to believe that the grounds for making an authorisation exist...(iii) the officer’s belief clearly has to be based on evidence; (iv) he has to record in writing, not only what his grounds are, but the evidence on which his belief is based; (v) he has expressly to consider whether the action is necessary and proportionate to the danger contemplated; (vi) that is why, in reality, he has to believe that an authorisation is necessary rather than merely expedient; (vii) the authorisation can only be for a very limited period of time; (viii) it can only be renewed once for a limited period of time; rolling renewals are not possible; (ix) it can only cover a limited geographical area; (x) it is subject to review.
45. Second, as to the operation itself: (i) there should be prior briefing if possible and certainly de-briefing afterwards; (ii) there should be prior community engagement if possible and certainly afterwards; (iii) where the authorisation is given by an officer below the rank of superintendent, it is subject to review by a superintendent; (iv) after the authorisation is over, the operation should be evaluated, in terms of whether its objectives were met, numbers of searches, number of arrests, number of weapons seized, disproportionality etc, and community confidence and reassurance.
46. Third, as to the actual encounter on the street: (i) the officer must be in uniform and identify himself by name and police station to the person stopped; (ii) the officer must explain the power under which he is acting, the object of the search and why he is doing it; (iii) the officer must record this in writing; (iv) the person searched is entitled to a copy of the form; (v) the purpose is limited to searching for offensive weapons or dangerous implements.
幾值得睇嘅，係英文多啲。
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