4 Are the safeguards adequate?
The Code of Practice guidance
on the exercise of the power
29. As we pointed out above, the Independent Reviewer
of Terrorism Legislation has expressed concerns in his recent
report about the lack of detailed criteria to guide the exercise
of the power to stop and search by individual officers once an
authorisation has been given. While he agrees with us that the
European Court of Human Rights in Gillan does not go so
far as to say that reasonable suspicion is always required in
order for a power to stop and search to be compatible with the
right to respect for private life in Article 8,[10]
he considers that individual officers exercising the power should
have clear guidance which is as close as possible to the "reasonable
suspicion" end of the spectrum of permissible positions.
30. The Independent Reviewer is particularly concerned
about the scope which continues to exist for purely random searches.
Pointing out that both the House of Lords and the European Court
of Human Rights in the Gillan case clearly disliked the
idea of purely random searches, the Independent Reviewer reports
that he would have expected to see more concentration on this
issue in relation to the replacement power.[11]
The Code of Practice, however, merely emphasises that the individual
officer should be able to choose between "using indicators",
such as behaviour, clothing and carried items, and "selecting
individuals 'at random'".[12]
The precise circumstances in which random stops may be appropriate
are not, however, indicated. In its present form, the Independent
Reviewer concludes,
"the Code of Practice is uninformative on the
issue of discretion, ineffective as a constraint on the arbitrary
exercise of the individual officer's power and excessive in the
opportunities that it offers for random search, a concept which,
in view of the judicial disapproval already expressed, will have
to be more carefully defined and defended if it is wished to keep
it available."
He recommends that the Code of Practice be revised
so as to introduce full and proper guidance on the exercise of
the officer's discretion to stop and search, to minimise the risk
that the discretion will be used in an arbitrary manner.
31. We share the Independent Reviewer's concern about
the scope that remains for random searches once an authorisation
has been given. However, as we made clear in our first Report
on the Order, we accept in principle the possibility of a scenario
in which the police have credible intelligence about a planned
terrorist attack on a particular site but not enough information
to amount to a reasonable suspicion for stopping and searching
any particular person or vehicle in the vicinity of the threatened
site. In such exceptional circumstances we accept the need for
a power to stop and search without reasonable suspicion. In an
extreme case, such as Lord Macdonald's example of a plot to car
bomb Parliament Square, where the credible intelligence is specific
about the nature of the threat and its imminence, we accept that
a power to stop and search any or even every car entering Parliament
Square would be necessary. To this extent, in these very exceptional
circumstances, we accept the need for a power to stop and search
on what may appear to members of the public to be a "random"
basis.
32. On closer inspection, however, such exercises
of the power to stop and search are not in fact truly "random"
searches at all. They are based on intelligence about a specific
threat, and the exercise of the power should be closely tied to
the nature of that intelligence. In the example of the threatened
imminent car bomb in Parliament Square, it would be justifiable
to stop and search any car entering Parliament Square, but not
any pedestrian or cyclist. What is a justifiable exercise of the
power to stop and search by the individual officer depends on
the precise nature of the intelligence about the threat, including
intelligence about its imminence.
33. The Code of Practice, as currently drafted, does
not fully reflect this. The relevant part[13]
starts well by stating that when exercising stop and search powers
under s. 47A, "officers should have a basis for selecting
individuals and vehicles to be stopped and searched." However,
it goes on to distinguish between two different bases of selection:
objective factors (said to be based on the intelligence available
and on the authorising officer's briefing) and selection at random
"within the parameters set out in the authorisation"
(e.g. the stopping of vehicles at random travelling down a particular
road towards a potential target). This distinction, between selection
"using indicators" and selection "at random"
is repeated later in the Code of Practice.[14]
34. We agree with the Independent Reviewer, that
the Code of Practice, as currently drafted, appears to encourage
individual officers to believe that that they have a choice between
random searches on the one hand, and searches based on objective
indicators, such as behaviour, clothing or carried items, on the
other. It does not make sufficiently clear that any exercise
of the power to stop and search must be justified by the specific
intelligence and therefore will not be "at random".
This connection between the individual exercise of the power and
the underlying intelligence could be made much clearer in the
guidance.
35. We recommend
that paragraphs 4.1.1 and 4.1.3 of the Code of Practice be amended
so as to remove all references to "random" searches
and to make more explicit that any individual exercise of the
power to stop and search must be capable of being justified by
the precise nature of the intelligence about the threat. In our
view such an amendment to the Code of Practice would meet the
Independent Reviewer's concern that it encourages random searches
at the same time as ensuring that a practical power is available
in the exceptional circumstances when the intelligence truly justifies
it.
Prior judicial authorisation
36. The Government rejected our recommendation that
there should be prior judicial authorisation of the availability
of the power to stop and search without reasonable suspicion on
the basis that it would neither be appropriate, nor helpful, "to
blur the lines between the executive and the judiciary in this
way." The Home Secretary is said to be the most appropriate
person to take responsibility for approving authorisations given
his or her responsibility for national security and proximity
to intelligence and information about investigations and threats.
37. We note that under the TPIMs Bill, which is currently
before Parliament, the Secretary of State requires the prior permission
of the High Court (or its equivalent) before making a TPIMs notice
imposing measures on an individual suspected of involvement in
terrorism-related activity.[15]
We cannot see any distinction
of principle between prior judicial involvement in the availability
of a power to impose terrorism prevention and investigation measures
and similar judicial involvement in the availability of a power
to stop and search without reasonable suspicion. We maintain our
recommendation that the Order be amended to require prior judicial
authorisation.
38. We note that the Independent Reviewer has commented
that our suggestion of the introduction of a requirement of prior
judicial consent for authorisations would "place a further
barrier (or safeguard) in the way of its speedy exercise."[16]
We point out, however, that
our recommendation presents no obstacle to the speedy exercise
of the power to stop and search without reasonable suspicion where
that is genuinely necessary, because we also suggested an urgent
procedure for police authorisation with immediate effect, subject
to judicial authorisation within 48 hours.
Ad hoc reports by the Independent
Reviewer
39. In our first Report on the Order we recommended
that the Independent Reviewer should have the power to report
to Parliament on the exercise of this power on an ad hoc
basis.[17]
40. We welcome
the Home Secretary's acknowledgement that the Independent Reviewer
already has the power to issue ad hoc reports and the Independent
Reviewer's indication that he would not exclude the possibility,
in a controversial case, of reporting on the exercise of the power
to authorise and/or search on an ad hoc basis, including on his
own initiative.[18]
Public notification of authorisations
41. In our first Report we recommended that the Order
should be amended to include a requirement that authorisations
be publicly notified when they have expired, so far as could be
done consistent with the protection of intelligence sources.
42. In response, the Home Secretary states that the
Government does not consider it possible to release information
about the duration and extent of an authorisation based on sensitive
intelligence immediately after the expiry of an authorisation
given that this could reveal potentially sensitive information.
43. However, she also states that she shares our
desire to provide the public with as much information as possible
about these powers, without adding to the police's administrative
burden. We welcome the Home
Secretary's undertaking to consider carefully whether the quarterly
Home Office Statistical Bulletin could include further detail
with regard to authorisations.
10 Independent Reviewer's Report, para. 8.36. Back
11
Ibid., paras 8.34-8.37. Back
12
Code Of Practice, paras 4.1.1 and 4.1.3. Back
13
Code of Practice, paragraph 4.1.1. Back
14
Code of Practice, paragraph 4.1.3. Back
15
Terrorism Prevention and Investigation Measures Bill, clauses
3(5)( and (6). Back
16
Independent Reviewer's Report, para. 8.9. Back
17
First Report, paras 94-95. Back
18
Independent Reviewer's Report, para. 8.32. Back
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