In January this year the European Court of Human Rights delivered a heavily critical judgement on police stop and search powers. In the second part of his special report, Tomas Mowlam looks at the future of Section 44 and stop and search in the UK.

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.”

Ideal worlds

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.”

Political issue

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.

Conclusion

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.

Part one of Tomas Mowlam's coverage of police stop and search powers - focusing on the long legal battle against Section 44 - can be read here. 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.