THE MAGAZINE

Rethinking the War on Terrorism

By Matthew Harwood

 

Stop and Search
 
As with the precharge detention, the authority police are given to stop and search anyone in a specified public area without suspicion predates 9-11. It was enacted as Section 44 of the Terrorism Act of 2000 to fight Irish Republican Army terrorists in London, but the power took on new importance after al Qaeda’s attack on the United States.
 
Written in broad language, Section 44 gave police officers the right to randomly stop and search pedestrians and vehicles in an area deemed at risk of a terrorist attack by a police official and confirmed within 48 hours by the Home Secretary. For example, greater London has been a designated area since 2001, though this is not widely known even among Londoners.
 
Police say this authority gives them both a practical and psychological advantage over terrorists: the element of surprise. Opponents, however, say the authority is subject to misuse by police. They also call it ineffective, a claim that seems borne out by the fact that although police used stop-and-search powers 392,000 times between 2006 and 2010, its use has not resulted in a single terrorism conviction.
 
Police and proponents argue that convictions were never the power’s intent. “What it was actually about was deterring terrorists,” says Lord Toby Harris, the Home Secretary’s representative to the Metropolitan Police Authority and a former Labour politician.
 
Nevertheless, this perceived lack of results, combined with its widespread use, made this power the most unpopular counterterrorism measure, according to the review. Unlike precharge detention or control orders, it inconvenienced everyone.
 
British Muslims particularly disliked Section 44 because they felt police targeted them. However, the reverse was also true, others say. Out of a fear of appearing Islamophobic, officers made a point of stopping and searching people who did not fit the presumed profile.
 
Police “shouldn’t be reduced to using politically correct…exercises in order to justify who they stop,” says Daniel Hamilton, the campaign director for Big Brother Watch, a right-of-center British civil liberties organization. They should simply stop people they have suspicions about, and “not just random members of the public,” he says.
 
But the coup de grace for Section 44 came in early 2010 when the European Court of Human Rights ruled that it violated Europe’s Convention on Human Rights, specifically a person’s right to privacy. The ruling also declared that the law did not have “adequate legal safeguards against abuse.” The United Kingdom tried to appeal, but Europe’s human rights court refused to hear the government’s argument last summer.
 
In response, Home Secretary May said she would follow the court’s ruling while working on new legislation that would appease the court. In the meantime, she issued interim rules that allowed police to stop a pedestrian only when an officer had a reasonable suspicion that a person was a terrorist.  
 
The review’s recommendations repeated this guidance, although the Home Office concluded that stop and search “without reasonable suspicion in exceptional circumstances is operationally justified.” The review came to this conclusion after police argued that a piece of intelligence could alert them to an imminent attack, yet carry no description of a suspect. In such a case, random stop and searches would be urgently needed.
 
The coalition government asked for Section 44’s repeal in the same bill that would limit precharge detention to 14 days. Even if it becomes law, police will still have authority to designate areas where it will be permissible to stop and search pedestrians and vehicles without having any direct reason to suspect the individuals being stopped of terrorism.
 
It will be harder, however, to justify designating an area as one where stop and search is appropriate. A senior police officer will only be able to grant constables that power in a specified area when he or she “reasonably suspects that an act of terrorism will take place.” Previously, senior police officers could allow constables to stop and search any person or vehicle without suspicion in a specified area if they considered “it expedient for the prevention of acts of terrorism.”
 
By setting the bar a bit higher, the Home Office believes the new policy “should result in a significant and permanent reduction in the volume of stop and searches compared to the use of Section 44 powers,” Harris says.
 
International advocacy group Human Rights Watch argues these reforms do not go far enough. Even though, under the bill, stop and search is “more narrowly drawn and with a higher threshold for authorization and use,” the group says it still gives police too much power that could be abused.
 
MP Raab tells Security Management that Section 44 powers “create more discontent” in the affected Muslim and Asian communities, and thus, they are “a poor tactic...from a counterterrorism point of view.”
 
 Raab says, however, that the reform language in the Freedom Bill represents progress, because it reduces the arbitrary nature of the previous law. Raab expressed hope that stop-and-search reform would build better counterterrorism partnerships between the police and Britain’s Muslim population.

 

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