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UK: Section 44 stop and search powers to be amended and reintroduced

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18 January 2011

The government's review of counter terrorism and security powers has confirmed that, like control orders, section 44 stop and search powers are to be redesigned and reintroduced with a new name and a more tightly defined legal basis.

Background

Section 44 of the Terrorism Act 2000 allowed police to search individuals indiscriminately and without reasonable suspicion in pre-defined 'authorisation zones.' These zones were supposed to be limited to specific locations deemed sensitive to national security for clearly defined periods of time. Instead police created 'authorisation zones' that covered vast geographical areas and renewed them on a rolling monthly basis: for example the Metropolitan police 'authorisation zone' covered the whole of Greater London. This meant that police could use section 44 on a vast scale. On 4 July 2010, a Human Rights Watch report showed that none of the approximately 450,000 people subjected to section 44 stop and searches between April 2007 and April 2009 had been successfully prosecuted for a terrorism related offence. [1]

In January 2010, the European Court of Human Rights (ECtHR) found section 44 to breach Article 8 of the European Convention on Human Rights which provides the right to respect for private life. [2] The judgment also objected to the whole process by which section 44 powers are authorised: parliament and the courts were not providing sufficient checks and balances against misuse and police officers were afforded too much discretion when deciding whether to stop and search someone. The Labour government appealed against the ruling, but on 30 June 2010 the Court ruled that its decision was final.

On 8 July 2010, the Home Secretary, Theresa May responded by suspending the use of section 44 against members of the public (it could still be used against vehicles). Police were forced to rely on section 43 of the Terrorism Act; under which they can search individuals anywhere in the country but only if they can demonstrate reasonable suspicion. However, within six months the police were calling for section 44 powers to be made available to them again. Senior officers reportedly told the government that they believe this power to be essential to the effective policing of large public events, like the Olympics, and political summits, such as the G20. [3]

Review of counter terrorism and security powers

The government agrees with the police's view. Its security review concludes "…that the absence of any form of 'no suspicion' terrorism stop and search power would lead to an increase in the levels of risk." However, so as not to "fall foul of the ECtHR judgment" the creation of 'authorisation zones' will now require reasonable suspicion that an act of terrorism will take place.

The review recommends significant changes to bring the power into compliance with ECHR [European Convention on Human Rights] rights:

i. The test for authorisation should be where a senior police officer reasonably suspects that an act of terrorism will take place. An authorisation should only be made where the powers are considered "necessary", (rather than the current requirement of merely "expedient") to prevent such an act.

ii. The maximum period of an authorisation should be reduced from the current maximum of 28 days to 14 days.

iii. It should be made clear in primary legislation that the authorisation may only last for as long as is necessary and may only cover a geographical area as wide as necessary to address the threat. The duration of the authorisation and the extent of the police force area that is covered by it must be justified by the need to prevent a suspected act of terrorism.

iv. The purposes for which the search may be conducted should be narrowed to looking for evidence that the individual is a terrorist or that the vehicle is being used for purposes of terrorism rather than for articles which may be used in connection with terrorism.

v.  The Secretary of State should be able to narrow the geographical extent of the authorisation (as well being able to shorten the period or to cancel or refuse to confirm it as at present).

vi. Robust statutory guidance on the use of the powers should be developed to circumscribe further the discretion available to the police and to provide further safeguards on the use of the power. [4]

It is reasonable to argue that under exceptional circumstances the use of stop and search without reasonable suspicion is justified, but it remains to be seen whether new powers will be implemented on this premise. That its legal basis will be more tightly defined is obviously no bad thing, but the new system set out in the security review does not appear to be fundamentally different from that which it is replacing. Police chiefs will still be able to request the creation of authorisation zones for 14 days - down from 28 days - covering "a geographical area as wide as necessary." Whether they will follow the new rules and seek to do so only if they have "reasonable suspicion" that an act of terrorism will be committed - and perhaps more importantly whether the Home Secretary will refuse to grant the request if they do not - remains to be seen. The government appears to have struck a delicate balance between retaining section 44 and abiding by the ECtHR's judgement. Certainly this is not what critics of the legislation had hoped for back in July 2010 when the Home Secretary announced that it would be scrapped.

It is worth emphasising that it was never intended for section 44 to be used as broadly as it has been. It was seized upon by the police as a convenient 'catch-all' power that quickly became embedded within common police practice. There is legitimate reason for concern that any new powers the government establishes may suffer a similar fate. The security review says that "robust statutory guidance" will be introduced to prevent this from happening, but this has proven to be ineffective in regulating police practice in the past. Between 2008 and 2010, the National Policing Improvement Agency, the Home Office and even the Prime Minister all published guidance to the police in an attempt to rectify its routine misuse of section 44 with negligible impact.

See also: For more on section 44: Statewatch analysis on the coalition government’s commitment to civil liberties: Original report (June 2010, pdf) and Six month update (January 2011, pdf)

Footnotes

[1] Human Rights Watch website, 4.7.10

[2] Case of Gillan and Quinton v. The United Kingdom (Application no. 4158/05), 12.1.10

[3] The Guardian, 29.12.10

[4] Review of Counter-Terrorism and Security Power, p.18