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Stop and search under the Terrorism Act 2000
What is stop and search?
'Stop and search' is the general term used to describe the power of police (and occasionally other officials) to search members of the public in various contexts.
For example, section 1 of the Police and Criminal Evidence Act 1984 gives police officers a general power to stop and search any person in a public place whom they reasonably suspect of carrying a specified item, e.g. a weapon, stolen property, or burglary tools.
Similarly, section 23(2) of the Misuse of Drugs Act 1971 allows police to stop and search a person in a public place where they reasonably suspect the person is in possession of a controlled substance.
The power to search members of the public in certain circumstances is not limited to the police. Indeed, there are a number of statutes that confer search powers on public officials in certain contexts: e.g. the powers of customs officials under the Customs and Excise Management Act 1979 or the powers of immigration officials under the Immigration Act 1971. However, most powers of search are limited to some particular situation (e.g. entry at port) or follow upon a particular event (e.g. arrest or detention).
The power of police to stop a person in order to search them is also distinct from the more general power of police to stop a person to ask them questions - something which they may do for a very wide range of purposes.
What is different about stop and search under the Terrorism Act 2000?
In most statutory provisions granting police the power to stop and search, there is a requirement that the police have a reasonable suspicion that the person is in possession of an item of a specified kind (e.g. drugs, a weapon, stolen property).
Under section 44 of the Terrorism Act 2000, however, a senior police officer may authorise a certain zone as one in which vehicles and pedestrians may be stopped and searched without reasonable suspicion. The purpose of section 44 is to enable police to carry out so-called 'intuitive' search for items 'of a kind which could be used in connection with terrorism'. However, section 45(1)(b) explicitly states that the search power may be exercised, 'whether or not the constable has grounds for suspecting the presence of articles of that kind'.
Why is reasonable suspicion so important?
The requirement for police to have reasonable suspicion that a person is carrying a specified item before they carry out a search is a common statutory safeguard to prevent the police from exercising their powers in a way that is arbitrary or discriminatory. The requirement to show reasonable suspicion means that the legality of the search can be challenged subsequently in court: if police are unable to give reasons for their suspicion, or if the reasons are manifestly unsound, then the search will be illegal. For example, it will not be enough for the police merely to say they had a 'gut feeling' that the person may have been carrying a weapon, etc.
The lack of any requirement to show reasonable suspicion was a notorious feature of sections 4 and 6 of the Vagrancy Act 1824 - the so-called 'sus' laws - which permitted police to arrest any persons loitering in a public place on the grounds that they intended to commit an offence. The widespread arbitrary use of the 'sus' laws by police against members of ethnic minorities was a major issue in the late 1970s and early 1980s.1 The 1981 report by Lord Scarman into the Brixton riots led ultimately to the repeal of these sections.
Why did Parliament allow for stop and search without reasonable suspicion under the 2000 Act then?
The power in section 44 to enable 'intuitive' stops within a specified area was originally meant by Parliament as a short-term counter-terrorism measure in exceptional cases. If, for example, police received a bomb threat targeting St Paul's Cathedral on a particular day, section 44 would enable police to establish a search zone around the cathedral to enable people entering the zone to be automatically searched, without the need for police to formulate reasons in each individual case. MPs and peers were concerned that the requirement to have reasonable suspicion might otherwise inhibit police from carrying out blanket searches where appropriate.
So what went wrong?
Shortly after the 9/11 attacks, the Home Secretary and senior police officers established the practice of making rolling authorisations under section 44 to cover the whole of metropolitan London. The police justified the blanket authorisations on the basis that there was now a generalised threat of terrorism in London, one that was likely to manifest in any large-scale public gathering, and that it would be impractical to make narrower designations (because, for example, the police may not wish to reveal the intelligence that they have concerning threats to a particular site).2 The extent of the section 44 authorisations only came to light following the Gillan case.
What is the Gillan case?
Kevin Gillan and Pennie Quinton were two members of the public attending a demonstration outside an arms fair in the ExCel Centre in London Docklands in 2003. Both were stopped by police and searched under section 44 of the 2000 Act. They subsequently brought a judicial review of the police for use of the search power, on the basis that they were involved in a peaceful protest, there was no evidence to show any kind of terrorist activity by protestors on the day in question, and that it was an interference with their rights to liberty, respect for privacy, and the right to freedom of expression and assembly.
In March 2006, the House of Lords heard Gillan and Quinton's appeal against the refusal of the lower courts to allow their claim. In his judgment, Lord Bingham said:3
It is an old and cherished tradition of our country that everyone should be free to go about their business in the streets of the land, confident that they will not be stopped and searched by the police unless reasonably suspected of having committed a criminal offence. So jealously has this tradition been guarded that it has almost become a constitutional principle. But it is not an absolute rule. There are, and have for some years been, statutory exceptions to it.
However, he and his fellow Law Lords ultimately ruled that section 44 was itself compatible with Convention rights, there were sufficient safeguards against arbitrary use of the power, and that there was no evidence that the section 44 power had been exercised unlawfully. In particular, he considered it:4
doubtful whether an ordinary superficial search of the person can be said to show a lack of respect for private life. It is true that 'private life' has been generously construed to embrace wide rights to personal autonomy. But it is clear Convention jurisprudence that intrusions must reach a certain level of seriousness to engage the operation of the Convention, which is, after all, concerned with human rights and fundamental freedoms, and I incline to the view that an ordinary superficial search of the person and an opening of bags, of the kind to which passengers uncomplainingly submit at airports, for example, can scarcely be said to reach that level.
What happened next?
Gillan and Quinton took their complaints to the European Court of Human Rights in Strasbourg. In January 2009, the Court ruled that the searches under section 44 had violated their right to respect for their private life under article 8 of the European Convention on Human Rights (ECHR). In particular, the Court disagreed with the Law Lords conclusion that there were sufficient safeguards against arbitrary exercise of the stop and search power:5
in the Court's view, 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.
Among other things, the Court noted that there was 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' (para 80). It was particularly critical of the lack of any check on the discretion of the police officer carrying out the search:6
Not only is it unnecessary for him to demonstrate the existence of any reasonable suspicion; he is not required even subjectively to suspect anything about the person stopped and searched. The sole proviso is that the search must be for the purpose of looking for articles which could be used in connection with terrorism, a very wide category which could cover many articles commonly carried by people in the streets. Provided the person concerned is stopped for the purpose of searching for such articles, the police officer does not even have to have grounds for suspecting the presence of such articles.
The Court was also very concerned at the potential for discriminatory effect in the exercise of the powers:7
In the Court's view, there is a clear risk of arbitrariness in the grant of such a broad discretion to the police officer. While the present cases do not concern black applicants or those of Asian origin, the risks of the discriminatory use of the powers against such persons is a very real consideration …. The available statistics show that black and Asian persons are disproportionately affected by the powers.
How effective has stop and search been?
Between 2000 and 2008, a total of 108,714 people have been stopped and searched under section 44(2) of the 2000 Act (this covers pedestrian searches - vehicle searches are dealt with separately under section 44(1)).8
Of this, 1442 people have been arrested. Of those 1442 people, only 147 people were arrested for a terrorism offence.
Since 2000, nobody has been convicted of a terrorism offence following a search under section 44.
On average, 1 in every 3 people stopped and searched under section 44(2) has been a member of an ethnic minority.
1 See eg Report of the House of Commons Home Affairs Committee, Race Relations and the 'Sus' Law HC 559 (1980).
2 See eg the extract from the witness statement of Catherine Byrne in para 17 of the House of Lords decision in Gillan.
4 Para 28.
5 Gillan and Quinton v United Kingdom (Application No 4158/05), para 79.
6 Para 83.
7 Para 85.
8 Statistics on the exercise of stop and search powers under s44 of the 2000 Act are published annually by the Ministry of Justice under the title Statistics on race and the criminal justice system (prior to 2005, the statistics were published by the Home Office).