Halting section 44 stop and search powers

Tuesday, 27 July 2010
By David Mery                                                     28/07/10

Powers to stop and search anyone and everyone without any reasonable suspicion, on the off chance that a random pedestrian may be a terrorist have been suspended. These powers, section 44 of the Terrorism Act 2000, have been used to harass people from ethnic minority communities (black men and young Muslims in particular), photographers, peaceful protesters and more.

Court of Human Rights rules against stop and search powers

davidmery.jpgConfirmation from the European Court of Human Rights, earlier this month, that it had rejected the British government's final appeal over section 44 stop and search powers was cause for celebration, and 'Photographers not terrorists' met in front of New Scotland Yard.

The court in the case brought by Kevin Gillan and Pennie Quinton found 'that the powers of authorisation and confirmation as well as those of stop and search under sections 44 and 45 of the 2000 Act are neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. They are not, therefore, "in accordance with the law" and it follows that there has been a violation of Article 8 of the Convention.

Theresa May, the Secretary of State for the Home Office finally decided to halt the use of these stop and search powers. She made the following short statement in Parliament.

The minister said: ‘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.'

Home Office announces end to use of Section 44

theresa_may_-_home_sec_2.jpgMay added: ‘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 our civil liberties. But neither will I leave the police without the powers they need to protect us.

I have decided to introduce interim guidelines for the police. The test for authorisation for the use of section 44 powers is, therefore, being changed from requiring a search to be "expedient" for the prevention of terrorism, to the stricter test of its 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 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".

Powers to make everyone a suspect don't cut crime

gavel_-_european_court_on_human_rights_2.jpgIt is refreshing to hear a Home Secretary considering the protection of our civil liberties a cross-political duty. This is particularly important when considering additional powers the police may ask for.

The final ruling of the European Court of Human Rights obviously motivated the government to make such an announcement.

However widespread concerns about the overuse of these powers, their lack of effectiveness (much less than one percent resulted in arrest and even fewer in conviction; 'very few arrests result for terrorist related offences'), and settlements obtained for wrongful use of the powers were other incentives for the government to reach such a position.

Targets scrapped

One cause for the overuse of section 44 stop and search has been the targets set for its use (recently abandoned by most, if not all, forces).

Astop_and_search_-_innocent_young_guy.jpgt the National Policing Conference, last month, Theresa May announced the scrapping of targets: 'targets don't fight crime; targets hinder the fight against crime. In scrapping the confidence target and the policing pledge, I couldn't be any clearer about your mission: it isn't a thirty-point plan; it is to cut crime. No more, and no less.' Some of these changes will surely be resisted by entrenched interests in the Home Office and the police.

A good compromise would be the nine principles of policing from 1829, published soon after the creation of the Metropolitan Police Service, that defined policing by consent.

When celebrations for the suspension of section 44 stops and searches of individuals are over, vigilance will still very much be necessary. The guidelines introduced in May's statement are non-statutory and interim; they could be revoked at any time. What is required to make these changes more definitive is a change of legislation: a repeal of section 44 (if not of the whole Terrorism Act 2000). New legislation will happen only after the announced review of existing counter-terrorism laws is completed.

About the author

police_apology_200.jpgDavid Mery is an independent writer and technologist. He recently researched, campaigned and wrote on civil liberties and human rights issues such as stop and search, the National DNA Database and the use of secret evidence. 

One evening in 2005, he was stopped and searched  and then unlawfully arrested. After a four years fight for his rights, he eventually succeeded in having his police records deleted and receiving an apology from the Metropolitan Police Service.

For David Mery's articles and his story check his website, ‘Calm, almost too calm'.

Next Month - Read ‘A potted history of Stop and Search - Section 43 and 44 by David Mery

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