The decision of the European Court of Human Rights in respect of Section 44 of the Terrorism Act 2000 as it relates to Stop and Search

01/10
14 January 2010
MPA briefing paper 01/2010

Author: Bennett Obong, MPA

This briefing paper has been prepared to inform members and staff. It is not a committee report and no decisions are required.

Introduction

1. The European Court of Human Rights on Tuesday 12 January 2010 ruled that Section 44 (Stop and Search) of the Terrorism Act 2000 contravenes the European Convention on Human Rights.

2. Section 44 is a Stop and Search power which can be used by virtue of a person being in a designated area.

3. Where an authority is in place (related to a designated area) police officers in uniform, or a PCSO if accompanied by a police officer, can:

• Stop and search any person; reasonable grounds to suspect an individual is a terrorist are not required. (PCSOs cannot search the person themselves, only their property.)
• View digital images contained on mobile phones of cameras carried by a person searched, provided that the viewing is to determine whether the images contained in the camera or mobile phone are connected with terrorism.
•  Seize and retain any article found during the search which the officer reasonably suspects is intended to be used in connection with terrorism.

European Court of Human Rights Ruling (ECtHR)

The key aspects to note from the ECtHR ruling are as follows:

1. Section 44 was not “in accordance with the law” and amounted to a violation of article eight of the European Convention – the right to respect for private and family life.

2. Recognition that the use of Section 44 is likely to have a considerable and negative impact on the BME community.

3. There were insufficient safeguards against the potential for the power to be abused.

4. Insufficient safeguards to ensure that individuals (the public) are adequately protected against arbitrary use of Section 44.

5. The ruling comes following the successful challenge by Pennine Quinton and Kevin Gillian, protesters stopped in 2003 outside an arms fair in London which gained particular media attention.

MPS Use of Section 44

1. In December 2009 AC John Yates issued a reminder to all MPS officers and staff that people taking photographs in public should not be stopped and searched unless there is a valid reason.

2. The Commissioner in an interview on 16 December in response to a dispute involving members of public taking photos of London landmarks said there was no reason for members of the public to be disturbed in going about their business.

3. He confirmed that the MPS are aware of the importance in ensuring the safety of London to all visitors and residents and recognise the MPS and its officers play a significant part in ensuring the use of Section 44 is applied under the right conditions and are respectful of the public where such interventions are required.

4. He also acknowledged that there has been public concern about how the legislation has been interpreted and how officers conduct searches under S 44.

5. Since the introduction and early use of S.44 the MPS has made significant improvements in the training of its officers in understanding the legislation related to Section 44 and the cases referred to challenging the ruling are noted as having taken place in 2003 (5/6years)prior to the significant changes made by the MPS.

6. As a result, and following pressure from MPA members, refined tactics were introduced across the MPS in July 2009. 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 or security risks have been agreed for specific areas.

Current position

1. The Home Secretary, Alan Johnson, has announced he is seeking to appeal against the decision made by the ECtHR and we will be seeking clarification of the time frame envisaged for this process.

2. The MPS held a Gold Group meeting on 13 January 2010 chaired by Commander Simon O’Brien following a meeting with the Home Office on 12 January 2010. MPA officers will be working with MPS officers to update members about emerging issues.

3. The present situation is that MPS has directed that the use of S.44 will remain in place until such time as the Home Office indicated otherwise.

4. The MPA, through the work of the Stop and Search community Networks and its Monitoring Groups, will work closely with the MPS to monitor activities undertaken and the use of the legislation.

5. Members are invited to attend the Community Monitoring Network (CMN) to hear concerns directly from community members. The last meeting of the CMN took place on 12 January 2010 where the ECtHR ruling was raised. Unfortunately there was little information emerging from the MPS at that time. The next meeting will take place on 4 May 2010.

6. MPA officers will continue to work with the MPS in monitoring the use of Section 44 and will request updates for members for the next full Authority meeting, when there will be an opportunity to discuss the implications of the ECtHR ruling with the Commissioner.

Send an e-mail linking to this page

Feedback