Protection of Freedoms Bill

Memorandum submitted by Genevieve Lennon (PF 54)

Introduction

1. This submission relates to proposed power to ‘stop and search in specified locations’ under section 60, Protection of Freedoms Bill 2010/11. The proposed power to stop and search constitutes an extraordinary invasion of the ‘old and cherished tradition’ that people should go about their business without being accosted by the police unless they are reasonably suspected of having committed, or being about to commit, an offence. [1] It reverses the norms of risk allocation by treating a location and all persons within it as potential risks and permitting pre-emptive action against them on this basis, instead of assigning the risk to specific people on the basis of their behaviour.

2. The key focus of this submission is whether the new power addresses the concerns raised regarding its predecessor, the Terrorism Act 2000 (TACT), section 44.

3. ‘Section 44’ shall be used to refer to the power as it existed prior to the Remedial Order 2011. ‘Section 47A’ shall be used to refer to the power currently in force. [2] ‘Section 43B’ shall be used to refer to the power proposed under the Protection of Freedoms Bill. Given the similarities between section 43B and section 47A, reference will also be made to the Code of Practice (the ‘Code’) currently governing section 47A. [3]

4. This submission draws upon research towards a PhD at the Centre for Criminal Justice Studies, University of Leeds, into the use and impact of section 44, which included semi-structured interviews with, inter alia, officers from the Metropolitan Police Service and British Transport Police and members of Police Authorities, but its focus is narrower than that of the PhD. This submission also draws upon a submission to the Macdonald Review on counter-terrorist powers.

Background Principles

5. The power to stop and search must be governed by clearly defined proportionate legislation, and be authorised and exercised in accordance with human rights, in a manner which provides for accountability, both legal and democratic. Section 43B, as a counter-terrorist power, must additionally be of proven efficiency and effectiveness in contributing to the Government’s CONTEST strategy. Failure to adhere to these standards will result in legal action against the police and undermine the general counter-terrorist strategy and the community’s faith in and cooperation with the police, itself key to successful counter-terrorism, with a consequential detrimental effect on other counter-terrorist powers and operations.

6. The extraordinary nature of section 43B means that its authorisation and exercise warrants intensive scrutiny. This is underlined by the damage that the perception, let alone the reality, of the discriminatory use of section 44 against certain sections of the community, notably British Muslims, has had on community-police relations. [4]

Objectives of section 43B

7. The Code to section 47A explicitly excludes intelligence gathering and deterrence as sole bases for an authorisation. The Macdonald Report gives the example of searching cars for suspect devices, however, this type of preventative action does not hold up in relation to stops of person, which accounted for the vast majority of section 44 stops. [5] My research concluded that the major objectives of section 44 were disruption and deterrence and intelligence gathering. [6] This suggests that section 43B will be virtually obsolescent or has radically different objectives from section 44, although what these may be is entirely unclear. If the only justification for section 43B is in relation to vehicular stops then the power should be limited accordingly. If it is to deter and disrupt then there should be an open debate about whether these are legitimate ends and, if so, the accompanying Code should be changed. In any event, the objectives of a power of this nature should be openly stated.

The Authorisation Process

The Trigger

8. Section 43B(1) alters the authorisation ‘trigger’ in two ways. First, the authorising officer must consider the authorisation ‘necessary’, rather than ‘expedient’, to prevent acts of terrorism. Second, there is an additional requirement that the authorising officer ‘reasonably suspects’ that an act of terrorism will take place. This potentially strengthens oversight via judicial review, however, there is no reference to the imminence or otherwise of the act of terrorism which is ‘reasonably suspected’ nor is there an explicit requirement that the act of terrorism relates to the authorisation area.

Ministerial Confirmation

9. The requirement of ministerial confirmation of the authorisation application is largely unchanged, with the exception that the Minister may now substitute a more restricted area. [7] This is therefore subject to the same two criticisms made in relation to section 44. First, there is a near-total lack of transparency: there is no public data relating to the number of authorisation applications, nor the number rejected nor approved. The sum total of information regarding these applications is a couple of sentences in the Independent Reviewer of Terrorism Legislation’s annual reports. A Freedom of Information request to the Metropolitan Police Service prompted a review of section 44 authorisations by the Office for Security and Counter Terrorism which identified, in June 2010, 40 occasions on which section 44 was deployed on the basis of an unlawful authorisation. Such a disclosure should not haphazardly depend on Freedom of Information requests. Of these forty unlawful authorisations, thirty were confirmed by the Secretary of State, which leads into the second point, that there needs be greater scrutiny over the authorisation process.

Geographical and temporal limits

10. Section 43B reinforces the internal limits upon the power by requiring that the temporal and geographical limits to the authorisation be no more than is necessary to prevent the act of terrorism, thereby providing statutory bite to the recommendations previously contained in the NPIA’s ‘Practice Advice on Stop and Search in Relation to Terrorism’ and the Home Office Circular. [8] In addition, the current Code explicitly prohibits ‘rolling’ authorisations, although it is unclear how this will be enforced given that forces can apply for new authorisations once the old one has expired.

11. There continues to be no requirement of transparency regarding what temporal and geographical limits forces avail of.

‘Short-term’ authorisations

12. Authorisations not confirmed by the Secretary of State within 48 hours lapse, but this does not affect the legality of any actions taken in the interim. Therefore, ‘short term’ authorisations may be made which do not require Ministerial confirmation. One positive that could be drawn is that they encourage forces to use the power for a short period, however, the use of ‘short-term’ authorisations which evade oversight should be curtailed.

Community engagement

13. The Code accompanying section 47A states that Home Office forces should notify non-Home Office forces when an authorisation is in place which covers overlapping areas, and vice versa. [9] In addition, the authorising force should notify the relevant force’s Police Authority or equivalent. [10] This is a improvement which will increase the ability of communities to hold forces to account for their use of the power. It should, however, be a requirement not an option.

The exercise of the section 43B

The object of the search

14. The object of the search is evidence that the vehicle is being used for terrorism or the person is a terrorist. [11] This is only slightly more circumscribed than under section 44 as most objects found on a person or in their belongings that could be used for terrorism will prompt the suspicion that that particular person is a terrorist. Therefore, the officer’s discretion remains virtually unfettered within the authorisation area.

Questioning persons stopped and searched

15. My research on section 44 revealed that some officers questioned persons stopped. While ‘chit-chatting’ to a person stopped to put them at their ease can be seen as good practice, neither section 44 nor section 43A gives officers the power to question a person who has been stopped. [12] One officer interviewed in the fieldwork stated that on one occasion she was asked by SO15 to make a note of mobile phone numbers, which she did. [13] While it can be argued that citizens are under a civic duty to assist officers in detection and prevention of crime, [14] this is very dubious ground to which the retort ‘if they don’t want to talk to you they won’t’ is insufficient.

Stop and search forms

16. The Code to section 47A states the minimum information that must be included on the stop form. This is an improvement, given the wide variance in the amount of detail inputted by officers under section 44.

Use of section 43B against protesters and photographers

17. The use of section 44 against photographers and protesters has been flagged as a concern. [15] While there may have been legitimate reasons to deploy section 44 at some public assemblies or against some photographers, the lack of transparency over the precise deployment of the power made it extremely difficult to judge whether it was used in legitimate circumstances or not. [16] There have been no changes recommended which would make it easier to determine whether or not section 43B is being used in inappropriate circumstances.

Recommendations

18. Section 43B(1) should include an explicit requirement that the act of terrorism is ‘imminent’ and that it relates to the authorisation area.

19. The Secretary of State’s role in confirming authorisation applications should be replaced by a judicial authority. There is precedent for such judicial oversight in relation to extensions to pre-charge detention subsequent to arrest under section 41, Terrorism Act 2000. [17] While it might be argued that stop and search is of a ‘lower order’ that does not require such intensive oversight, the European Court of Human Right’s comments on Article 5 in Gillan v UK suggest that a section 44 stop does involve a detention, albeit ordinarily a short one. [18] In addition, the practically unfettered nature of the discretion bestowed to individual officers by the absence of reasonable suspicion and the broad nature of the object of the search point to this being an extraordinary power that warrants intensive safeguards.

20. Data on authorisations of all UK forces – whether Home Office or not – should be published annually subject to a time lag. The number of authorisations should be broken down by force, number applied for, number approved, number modified by geographical area or duration and number rejected. The temporal limit of each authorisation and whether they were for the maximum geographical limit should be noted. In terms of the geographical limit, this information could be broken down further by broad percentages (e.g. 25% of the force area). The number of stops carried out under each authorisation, broken down in the usual manner, should be published. None of this information reveals sensitive data which might hamper police activities or enable would-be terrorists to spot ‘patterns’, although for this reason no details of the dates to which authorisations pertain should be revealed.

21. Section 43B should be amended so that an authorisation for up to 48 hours lapses if not confirmed within 24 hours. This would retain operational flexibility to authorise the use of section 43B at short notice and encourage forces to submit applications for temporally short authorisations sufficiently in advance to be confirmed but should dissuade forces from using ‘short-term’ authorisations as a means of evading oversight. Data should be published annually on the number of ‘short term’ authorisations which were not subject to prior ministerial confirmation, broken down by force.

22. The Code accompanying section 43B should require, not suggest, that forces notify each other and the relevant Police Authorities.

23. Forces should be required to include in their annual reports the forms of community engagement availed of in relation to section 43B.

24. PACE, Code A should be amended to require officers to inform persons who are stopped and searched that they do not need to answer any questions unrelated to the search itself.

25. I suggested to the Macdonald review that the data on authorisations should be broken into broad types. On the basis of my research into section 44, appropriate categories would include: high risk site/CNI; night-time economy; intelligence operation; public assembly; photography; sporting fixture and behaviour (short of the reasonable suspicion required for section 43, Terrorism Act 2000). This would provide a degree of transparency vital to functional accountability which would make it would be easier to hold police forces to account. For example, if it transpired that a force carried out 90% of its section 44 stops at ‘public assemblies’, then this would suggest an abuse of the power, and the infringement of EHCR Articles 10 and 11, which should prompt a review by the relevant Police Authority or the IPCC. Most of these categories relate to deterrence or disruption and, as noted above, section 43B cannot be authorised for these objectives. The list should therefore be refined after the patterns of use of section 43B become evident.

April 2011


[1] R (Gillan) v Commissioner of Police of the Metropolis [2006] UKHL 12 [1] (per Lord Bingham).

[2] TACT, section 44 as amended by the Prevention and Suppression of Terrorism: The Terrorism Act 20 00 (Remedial) order 2011 , SI 2011/631.

[3] Home Office 'Code of Practice (England, Wales and Scotland) for the authorisation and exercise of stop and search powers relating to section 47A of Schedule 6B to the Terrorism Act 2000' (HMSO, 2011) .

[4] Home Affairs Committee ‘Terrorism Powers and Community Relations’ (2004-05, HC 165-1).

[5] Lord Macdonald, Review of counter-terrorism and security power: a report by Lord Macdonald of River Glaven QC (Cm 8033, 2011) 4.

[6] Lennon, G. ‘Policing terrorist risk: stop and search under section 44, Terrorism Act 2000’ (PhD thesis, University of Leeds, forthcoming).

[7] TACT, schedule 6B, [7(4)(b)].

[8] TACT, section 47A(1)(b)(ii-iii); Home Office 'Circular 027/2008: Authorisations of Stop and Search Powers under Section 44 of the Terrorism Act' (Home Office, London 2008) ; NPIA 'Practice Advice on Stop and Search in Relation to Terrorism' .

[9] Home Office, 'Code of Practice (England, Wales and Scotland) for the authorisation and exercise of stop and search powers relating to section 47A of Schedule 6B to the Terrorism Act 2000' [3.6].

[10] Ibid.

[11] TACT, section 47A(4).

[12] Stone, V. & Pettigrew, N. ‘The views of the public on stops and searches (Home Office, PRS (Paper 129) London 2000).

[13] Lennon (above n 6).

[14] PACE Code C, 1K.

[15] E.g. Liberty, 'Casulty of War: 8 weeks of counter-terrorism in Rural England' (Liberty, London 2003) ; JCHR ‘Demonstrating respect for rights?’ (2008-09, HL 47-1) and (2008-09, HL 47-II).

[16] Home Office Circular 012/2009 ‘Photography and Counter-terrorism Legislation’.

[17] Schedule 8, para. 33(3). Non-derogating control orders issued in pursuance to section 3(1)(a), Prevention of Terrorism Act 2005. See also: Brogan v United Kingdom (1988) 11 EHRR 117 (Application number 11209/84) .

[18] Gillan v U nited Kingdom (2010) 50 EHRR 45 (app.no.4158/05) [57].