Published Friday, 06 September 2013
Canning's lawyer said he will proceed to claim for damages. (© UTV)
Senior judges in Belfast were told on Friday that an appeal by the Chief Constable and Secretary of State in the cases of Bernard Fox and Marvin Canning was no longer being pursued.
Both men are now to press ahead with claims for damages against the PSNI, with Mr Canning's lawyer disclosing he has been stopped more than 100 times.
Earlier this year the Court of Appeal held there was a lack of adequate safeguards against potential abuse of the system used under the Justice and Security (Northern Ireland) Act 2007.
Canning, from the Glendara area of Derry, claimed the stop and question powers were incompatible with his right to privacy under European law.
The 55-year-old, who is related to the Deputy First Minister through marriage, alleged that officers were sometimes oppressive and confrontational.
He denies any involvement in terrorism but confirmed he is a member of the 32 County Sovereignty Movement, stating it is not an illegal organisation.
Police had rejected claims that powers under the Act were arbitrarily used against him.
Our client will now be pursuing a claim for damages, having been subjected to these stop and search powers in excess of 100 times.
Solicitor Paul Pierce
A similar judicial review challenge was brought by Fox, who took part in the 1981 IRA hunger strikes inside the Maze Prison, and his companion Christine McNulty.
The Belfast man served more than 20 years in prison for offences including possession of explosives before being released under the terms of the Good Friday Agreement.
Police stopped a car he and Ms McNulty were travelling in near Camlough, Co Armagh in March 2011.
Their vehicle was searched for munitions, while an officer allegedly took Ms McNulty's handbag and went through its contents.
Fox denies any involvement with dissident republican activities. Police argued that the power was not intended to be used randomly, but rather on the basis of threat.
Lawyers in both cases successfully overturned a previous High Court decision that no violation under the European Convention on Human Rights had occurred.
In the Court of Appeal ruling Lord Justice Girvan identified the absence of a code of practice for stop and question operations under Section 21 of the Act.
The legal framework pending the introduction of an effective code does not contain the kind of safeguards against potential abuse or arbitrariness, he held.
Although amendments have been made to the section dealing with stop and search actions, the court ruled in favour of Fox and Ms McNulty based on the situation at the time.
Counsel for the Chief Constable and Secretary of State was expected to attempt to appeal the verdicts at the UK's highest court.
But Tony McGleenan QC told the Court of Appeal: "I have received instructions this morning that we are not to pursue the application for leave to appeal to the Supreme Court in either the Fox or McNulty cases."
Following the notification Canning's solicitor Paul Pierce of KRW Law said: "In view of the decision by the Chief Constable and the Secretary of State to abandon this appeal, it now confirms the ruling that the stop and search powers used by police were unlawful.
"The fact that a code of practice has now been introduced does not remedy the unlawful use of these wide-ranging powers."
© UTV News