In 2003, two people were stopped and searched outside London’s Excel Centre and prevented from attending a peaceful protest against the arms fair taking place inside. Journalist Pennie Quinton was forced to stop filming despite showing her press card, and Kevin Gillian was stopped for 20 minutes when riding his bike.
Together with pressure group Liberty, the pair refused to accept this horribly commonplace police interference and challenged the government over the legal basis for this stop and search – Section 44 of the Terrorism Act 2000.
The case went through several defeats in the domestic courts, but in January 2010 the European Court of Human Rights ruled that the use of Section 44 violated Article 8 of the European Convention on Human Rights – the right to privacy.
“I was personally quite confident – I seemed to be the only one,” laughs Corinna Ferguson, Liberty’s legal officer on the case. “Logically when you’ve lost every attempt in the domestic courts then there’s not much grounds to be confident in the European Court, but we always said that the House of Lords judgment was wrong and took a particularly narrow view of the concept of privacy.”
If the ruling had simply found against the government then it would not have caused such a big stir, but the ruling was broad and heavily critical of the government. The court held that “the safeguards provided by domestic law have not been demonstrated to constitute a real curb on the wide powers afforded to the executive, so as to offer the individual adequate protection against arbitrary interference.”
The court added that “there is a clear risk of arbitrariness in the grant of such a broad discretion to the police officer.” Powers under Section 44 were “neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse.”
Though couched in legal language it was a dressing down of the government over the sweeping powers granted to the police under Section 44.
Problems of scope and scale
The main problem was not necessarily even the concept of stop and search without suspicion, which even Liberty feels maybe necessary in certain extreme cases, but the sweeping way in which Section 44 was applied.
The 28 days for which an area could be covered under a Section 44 order – enabling police to stop and search people there without suspicion – became increasingly irrelevant as areas were simply re-designated to provide rolling coverage.
Through the litigation it also emerged that areas as large as Greater London were designated on the quiet.
The often intimidating nature of these stop and searches also meant that people rarely knew what power they were being stopped and searched under, and had little prospect of redress if they felt it was unfair.
The authorisation process for a Section 44 order is sketchy – oral consent can be given and then later confirmed in writing, and authorisation only has to come from a rank of Assistant Chief Constable or above.
Authorisation for Section 44 currently rests on the fact that it is “expedient for the prevention of acts of terrorism”. According to the ECtHR ruling however, “expedient means no more than ‘advantageous’ or ‘helpful’.
“There is no requirement at the authorisation stage that the stop and search power be considered ‘necessary’ and therefore no requirement of any assessment of the proportionality of the measure.”
The Metropolitan Police and eleven other police forces make, and have made, regular use of the power; it seemed to become a regular tool of policing, replacing stop and search with suspicion. From 33,177 stop and searches nationwide in 2004 to 117,200 four years later, the increase was meteoric.
A Scotland Yard spokesman said that despite the ruling, “the use of stop and search powers under Section 43 and 44 of the Terrorism Act 2000 remains an important tactic in our counter terrorism strategy.
“The threat remains real and serious and stop and search can deter and disrupt terrorist activity and create a hostile environment for terrorists.”
There has been a notable lack of progress of any stripe from these stop and searches. Nationally from April to June 2009, during the Met’s reduction in use of the power, 36,060 people were searched. Of those only 29 were processed further, breaking down into just three charged, 14 released and 14 ‘other’ (normally cautioned).
An even more unfortunate feature of the stop and searches was that black and Asian men were between five and seven times more likely to get stopped under the powers.
Following the attempted attack on the Tiger Tiger nightclub in London’s Haymarket in 2007, the number of black people searched went up 322 per cent and the number of Asian people searched went up 277 per cent, compared to a 185 per cent rise for white people.
This has had a very divisive effect. Lord Carlile, the government’s reviewer of anti terror legalisation, said during a speech at the Policy Exchange think tank: “Section 44 continues to have a disproportionately bad effect on community relations, with the often inaccurate but genuinely felt belief that it is used in a discriminatory way.”
Sir Paul Stephenson, the Metropolitan Police Commissioner, has reduced operational use of the powers, starting in April 2009. From January to March that year there were 61,954 stop and searches, from April to June 36,060 took place, and from July to September just 29,396 were carried out.
“Refined tactics were introduced across the Met in July 2009,” a Scotland Yard spokesman told The Samosa, adding: “This means that Section 44 powers are now only deployed at pre-identified significant locations such as iconic sites and crowded places, and when specific operations have been agreed for specific areas.”
Former Met Commissioner Sir Ian Blair defended the need for powers allowing stop and search without suspicion. In his Comment is Free blog in the Guardian he wrote: “The whole point of Section 44 is that that is not required: this is a process akin to an airport search, designed to make clear to terrorists that they are risk, however covert their behaviour of being searched and having their details logged at random.”
But as Liberty’s Corinna Ferguson passionately explains: “The power to stop and search without any suspicion is something that is not in accordance with traditional notions of policing in this country where normally you have to have reasonable suspicion if you’re going to bother someone who is going about their normal business.”
The road ahead
Despite the government losing the case of Gillian and Quinton, the first thing to point out is that the judgment will not have an immediate effect; the government has until 12th April to lodge an appeal.
“Stop and search under Section 44 of the Terrorism Act 2000 is an important tool in the package of measures in the ongoing fight against terrorism,” a Home Office spokesman told The Samosa.
“We are disappointed with the European Court of Human Rights ruling in this case as we won on these challenges in the UK courts including the House of Lords. We are considering the judgement and will seek to appeal.
“Pending the outcome of this appeal the police will continue to have this power available to them.”
Corinna Ferguson, legal officer for pressure group Liberty on the case, said: “There are some grounds for optimism here in that there’s been a fair amount of support from the Metropolitan Police for our campaign as it were, because they agree it’s been over used and it’s become a sort of everyday policing tool.
“Police are human beings and they can quite readily understand that if they’re stopping people without reason that’s likely to be a problem for many people. They would rather it was tightened up and there was less resulting criticism of them.”
Legal and government sources have suggested that the appeal is unlikely to succeed. Ferguson agreed, saying that the government’s chances are “pretty slim”.
“It’s not actually strictly speaking an appeal, but they can ask the European Court to refer the case to the Grand Chamber and then you get 17 judges, rather than seven looking at it.
“Out of 47 judges in the entire court you normally only have a seven-judge court, so only the most important cases are actually referred to the Grand Chamber.”
She smiled and added: “I would be quite surprised if it went to the Grand Chamber. If it does though, we’ll fight it and I’m pretty confident we would win.”
Liberty has presented amendments to the Crime and Security Bill currently making its way through the Commons, which seek to address the problems with the current law.
Oral authorisation for stop and search would be scrapped, and only written authorisation from the area’s most senior officer, rather than an Assistant Chief Constable, would be acceptable. The powers would be limited to a square kilometre area, and more than six continuous renewals would require a statement to parliament explaining the necessity.
To make it more open and accountable, the police would also be required to publish notification of stop and search.
The document says that government foot-dragging on the issue will mean “that we will continue to see the law used in a clumsy and discriminatory way.”
These considerations may be swept away by new developments.
What if the appeal fails?
Lord Carlile, a Liberal Democrat peer, is the government’s independent reviewer of terror legislation. Though he believes Liberty’s complaints, especially the geographical area issue, “weren’t germane to the real issue”, he has been critical of the way that Section 44 was used.
At a speech at the Policy Exchange think tank he said: “The power given by Section 44 continues to have a disproportionately bad effect on community relations, with the often inaccurate but genuinely felt belief that it is used in a discriminatory way. It has certainly been used in some instances without reason, let along suspicion.”
“Nothing changes pending the appeal,” he told The Samosa, “so at the moment we are looking what would happen if the Grand Chamber confirmed the Court’s ruling.”
He has confirmed however that should the appeal fail the most likely government course would be to use beefed up Section 43 powers. The powers, with the added allowance to search vehicles, work on “reasonable suspicion” rather than Section 44’s “without suspicion”.
According to the Metropolitan Police it has also become their preferred stop and search power, after Met Commissioner Sir Paul Stephenson reduced the operational use of section 44 from April 2009.
Lord Carlile said that this would still leave the police sufficient powers, and that stop and search without suspicion would only “focus around an iconic event, eg an FA Cup Final, or critical national infrastructure, for example Parliament or major power stations.”
Section 44 could then be repealed or it could remain on the statute books and simply be derogated to Section 43.
The police already have a wide range of stop and search powers, under the Police And Criminal Evidence Act (PACE) for example, but Lord Carlile wholeheartedly supports the government position that “counter-terrorism stop and search powers are absolutely necessary because of the very nature of the terrorism.
“For example, they [the police] may not have firm evidence but the situation on the ground provides suspicion. The PACE powers are simply insufficient.”
A beefed up Section 43 would still provide a sweeping power to stop and search, but the key point is that it removes the “without suspicion” clause. Liberty’s Corinna Ferguson said that she thought Section 43 was “unlikely to generate as many complaints because it’s unlikely to be used nearly as often.
“If you’re can demonstrate that you were stopped and searched without suspicion you at least have the option of appeal.”
There is a final political dimension to this legal wrangling; if an appeal were granted, by the time it came through then there may be a new, possibly Conservative, government.
After the European Court ruling in January, Shadow Home Secretary Chris Grayling told the Guardian: “We have long said that anti-terror laws should not be used as a way of conducting normal, day to day policing.”
Grayling refused to comment on the new developments or the future of section 44 under a Tory administration, so the depth of Conservative support for stop and search without suspicion is difficult to gauge.
They could drop an appeal and accept the court’s original ruling, or simply ignore it and drag the situation out.
To many people this will seem like an argument about the fine print of legislation, but it’s the fine print that affects many people. “With” and “without” suspicion seem nit-pickingly difficult to quantify, but they are important. That the Met Police is willing to scale back the use of Section 44 - one of the most powerful pieces of legislation it can use - seems tacit admission that Section 44 is a divisive power which targets certain communities and is counterproductive to fighting terrorism.
Liberty is encouraging anyone who has been stopped and searched under Section 44 to send it details of the incident. You can find a link to an incident report form at the top right hand side of Liberty's website here.