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Statewatch News Online: UK-Section 44 anti-terrorism stop and search powers scrapped

28 March 2012

UK
Section 44 anti-terrorism stop and search powers scrapped

On 8 July 2010, the Home Secretary, Theresa May, announced that police will no longer be able to use section 44 of the Terrorism Act 2000 to stop and search members of the public, only vehicles. On 30 June 2010, the European Court of Human Rights had ruled that their January 2010 judgment in the case of Gillan and Quinton V the United Kingdom was final. The Court had found that the police's use of section 44 powers breached Article 8 of the European Convention on Human Rights which provides the right to respect for private life. [1]

May announced the introduction of "interim measures [that] will bring section 44 stop and search powers fully into line with the European Court's judgment." Police will now have to rely on section 43 of the Act which, unlike section 44, requires them to demonstrate reasonable suspicion that a person is involved in terrorist activity before stopping and searching them.

Section 43 can be invoked anywhere in the country while section 44 can only be used in prescribed "authorisation zones." These were supposed to be established in areas sensitive to national security - such as famous landmarks, government buildings and train stations - but instead the Metropolitan Police created an "authorisation zone" covering all of its territory: the whole of greater London. Other police forces across the country adopted similar strategies.

This enabled section 44 to be used in place of section 43 in situations for which it was never intended. It was used on 256,026 occasions in England and Wales between April 2008 and March 2009. The Metropolitan Police and Transport Police were responsible for 95% of this total. Of this colossal figure only 1,452 stops resulted in arrest, less than 0.6% of the total number, and the vast majority of these were for offences unrelated to terrorism. [2]

Responding to the government's decision, Shami Chakrabarti, Director of Liberty, said:

"Liberty welcomes the end of the infamous s.44 stop and search power that criminalised and alienated more people than it ever protected. We argued against it for ten years and spent the last seven challenging it all the way to the Court of Human Rights.

It is a blanket and secretive power that has been used against school kids, journalists, peace protesters and a disproportionate number of young black men. To our knowledge, it has never helped catch a single terrorist. This is a very important day for personal privacy, protest rights and race equality in Britain." [3]

The government will likely face a stern challenge to ensure that section 43 powers do not come to be routinely misused in much the same way that section 44 powers have been. While section 44 has been used on a grander scale and thus attracted more negative publicity, there is also evidence that section 43 has been dubiously employed. Most recently, on 6 June 2010, police determined that a photographer taking pictures of cadets near Buckingham Palace should be detained under section 43. [4] If incidents such as this become part of common police practice the damage can be long-lasting. In the last two years the National Policing Improvement Agency, the Home Office and even the Prime Minister all published guidance to the police on the use of section 44 powers with negligible result. [5]

For more information on the use of section 44 powers see:
Statewatch analysis of the new government's commitment to civil liberties (pdf)

Full text of Home Secretary Theresa May's statement to the House of Commons, 8 July 2010:

Mr. Speaker, I would like to make a statement on stop and search powers under section 44 of the Terrorism Act 2000.

On Wednesday of last week, the European Court of Human Rights ruled that its judgment in the case of Gillan and Quinton is final. This judgment found that the stop and search powers granted under section 44 of the Terrorism Act 2000 amount to the violation of the right to a private life.

The Court found that the powers are drawn too broadly - at the time of their initial authorisation and when they are used. It also found that the powers contain insufficient safeguards to protect civil liberties.
The Government cannot appeal this judgment - although we would not have done so had we been able. We have always been clear in our concerns about these powers, and they will be included as part of our review of counter-terrorism legislation.

I can therefore tell the House that I will not allow the continued use of section 44 in contravention of the European Court's ruling and, more importantly, in contravention of the civil liberties of every one of us. But neither will I leave the police without the powers they need to protect us.

Since last Wednesday, I have sought urgent legal advice and consulted police forces. In order to comply with the judgment - but avoid pre-empting the review of counter-terrorism legislation - I have decided to introduce interim guidelines for the police.

I am therefore changing the test for authorisation for the use of section 44 powers from requiring a search to be 'expedient' for the prevention of terrorism, to the stricter test of it being 'necessary' for that purpose. And, most importantly, I am introducing a new suspicion threshold.

Officers will no longer be able to search individuals using section 44 powers. Instead, they will have to rely on section 43 powers - which require officers to reasonably suspect the person to be a terrorist.
And officers will only be able to use section 44 in relation to the searches of vehicles. I will only confirm these authorisations where they are considered to be necessary, and officers will only be able to use them when they have 'reasonable suspicion'.

These interim measures will bring section 44 stop and search powers fully into line with the European Court's judgment. They will provide operational clarity for the police. And they will last until we have completed our review of counter-terrorism laws.

Mr Speaker, the first duty of government is to protect the public. But that duty must never be used as a reason to ride roughshod over our civil liberties. I believe that the interim proposals I have set out today give the police the support they need and protect those ancient rights.

I commend this statement to the House.

Footnotes

[1] Case of Gillan and Quinton v. The United Kingdom (Application no. 4158/05), 12.1.10
[2] Home Office Statistical Bulletin 2008/09
[3] Liberty website, 8.7.10
[4] British Journal of Photography, 6.7.10
[5] Amateur Photographer, 5.12.09

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