Authorizations are limited to 28 days, and are limited to the geographic area specified in the authorization. In recognition of the potential of the power to damage community relations, authorizations must also contain a community impact assessment. Stops are recorded, including the ethnicity of the person stopped.
Officers are also given guidance on the use of the power. The effectiveness of these safeguards is assessed below. Under the Terrorism Act , the power to stop and search without suspicion must be authorized by a senior police officer and confirmed by the Home Secretary within 48 hours. The authorization process is set out in section 44 of the Act and accompanying Home Office guidance, and is intended to safeguard against misuse or excessive use of the power.
In practice, however, the authorization process appears to be little more than a rubber-stamp exercise. Requests are rarely, if ever, modified or refused and rolling authorizations are given. The authorization process also includes little effort to assess the impact of the power on community relations, or to take that assessment into account when determining whether to grant authorizations.
For a police force to use the power, it must first be authorized by a senior officer an assistant chief constable, or in the case of the MPS and City of London police, a commander. The authorization request must specify the geographic area and duration for which authorization is sought. According to Home Office guidance, the senior officer must complete an authorization form that states the duration of the power, its geographic scope and the reasons for exercising it in order to authorize its use.
It should explain why section 44 powers are deemed an appropriate response and why powers under section 43 of the Terrorism Act or PACE powers both of which require suspicion are not deemed sufficient. There should be an explanation as to the particular geographic scope requested, the training given to officers using the powers and how the powers will be implemented in practice.
The authorization form should also provide details of a mandatory Community Impact Assessment CIA , to be completed prior to the authorization. The law and accompanying Home Office guidance make clear that authorizations should be time-limited to 28 days. The requirement that the Home Secretary confirm all authorizations within 48 hours is intended to serve as a primary safeguard against misuse of the power. In practice, however, the evidence indicates that the Home Secretary and Home Office fail to give sufficient scrutiny to authorization requests.
Human Rights Watch was unable to find any examples of authorization requests that had been refused by the Home Secretary, or even examples of where they had been modified. The information requested can only be provided at disproportionate cost because the information is held on individual paper files. The onus is on police forces to authorise and seek confirmation from the Secretary of State to use the powers, and to keep records of applications made. Assessing the authorization process is made difficult by the fact that the requests, supporting documents and decisions are secret.
Although Lord Carlile is able to review these documents, others with a legitimate interest are not. Mike Franklin, a Commissioner with the Independent Police Complaints Commission IPCC , which has statutory power to investigate allegations of abuse by the police, told Human Rights Watch that the IPCC had sought completed force applications for section 44 authorization and ministerial responses to them and that this had been refused. Efforts by campaigners to obtain these documents through Freedom of Information Act requests have also proved unsuccessful.
In February , the Office of the Information Commissioner, an independent body that adjudicates refusals by government agencies to provide information to the public under the Freedom of Information Act, upheld a decision by the Home Office to refuse on national security grounds to provide information about the content, basis and geographic scope of section 44 authorizations. There were rolling 28 day authorizations for the Metropolitan Police Service in place for the entire London metropolitan area from at least February until at least May , when the force introduced its tactical use review, which limits the geographic scope of MPS section 44 authorization discussed below.
The fact that successive home secretaries authorized the rolling use of the power across the entirety of London, including its suburbs, for more than seven years, and that the eventual narrowing of its geographic scope came not from the Home Secretary but from the MPS, provides further evidence that the Home Secretary and Home Office fail properly to scrutinize such requests.
In June , then-Home Secretary responded to criticism of the London-wide authorization, not by taking responsibility for having failed to exercise sufficient scrutiny over the authorizations as the law requires, but by welcoming the decision by the Metropolitan Police to review its decision to seek authorizations on a London-wide basis. The CIA should be reviewed continually throughout the life of the authorisation.
The requirement for police forces wishing to use the section 44 power to submit community impact assessments with requests for authorization indicates that the British Parliament was aware that the power had potential to adversely impact relations between communities and the police. Given the history of stop and search powers, this is hardly surprising. CIAs should provide an opportunity for the police to evaluate the impact of the power on relations with the community, and presumably to assess the costs and benefits of the use of the power. In practice, however, community impact assessments appear to have little or no bearing on whether the Home Secretary approves an authorization request.
The Metropolitan Police Service MPS prepares an equality impact assessment for all stop and search operations, including those under section The assessment is publicly available and covers a four-year period. The most recent version, dated October and due to expire in October , is submitted to Home Office together with section 44 authorization requests.
The MPS general equality impact assessment has scant information on section The equality impact assessment fails to engage with the potentially negative impact of section 44 powers on minority communities and their relations with the police by saying that it lacks the data to make an assessment.
Instead, it argues that such powers are necessary to prevent terrorism which it points out would affect ethnic minority and other communities. It is evident the MPS is engaged in consultation with communities in relation to stop and search powers generally, notably at borough level. Human Rights Watch understands that community impact information from the borough level is communicated to senior officers in the MPS headquarters on a regular basis.
But as the equality impact assessment suggests, it does not appear that the MPS has the same degree of engagement in relation to section 44 as it does with other stop and search powers, including in relation to preparing community impact assessments required for section 44 authorizations. Indeed, it is evident that the MPS is not submitting a fresh section 44 specific community impact assessment each month when it renews its authorisation request, as the law and guidance requires, but instead relies on its broad, and infrequently updated equality impact assessment for stop and search generally, which as noted above has little information on section Lord Carlile told Human Rights Watch that conducting a community impact assessment every four years is too long an interval.
The British Transport Police is also required to submit community impact assessments when it seeks renewed authorization of its section 44 powers. Assistant Chief Constable Pacey said that the force consults with its stop and search group composed of its National Independent Advisory Group and community representatives , and local police, and said that in several cases the BTP had decided to postpone or cancel planned operations after feedback indicated that they would have a negative impact.
They are not made public. But it is important to note that pre-planned operations account for only around half of BTP stops. Ad hoc stops and searches are capable of having an equally adverse impact. Human Rights Watch has also seen no evidence that community impact assessments have had a bearing on decisions by the force to seek renewed authorization of section 44 powers.
Section 44 power does not require individual suspicion as grounds for a stop, meaning that police officers have wide discretion as to its use. The powers are often used by ordinary police officers on the beat, rather than specialized counterterrorism officers. As a result, it is important that officers are clearly guided on its proper use. This is especially true for the MPS and BTP, since both forces are able to exercise the power widely across their jurisdictions. Extensive guidance exists on the use section The guidance from the NPIA, MPS and BTP offer thorough and thoughtful attempts to provide clarity on the use of section 44 stop and search in a manner that is neither arbitrary, nor based on profiling.
However, those attempts ultimately fail because of the contradiction inherent in the section 44 power: its goal to prevent terrorism, while allowing for people to be stopped even if they are not suspected of terrorist involvement. Unfortunately the guidance provided at both a national and force-level fails that principle. It lacks clarity and precision, especially in relation to the most critical question for a power with no suspicion is required: how does an individual officer decide who should be stopped and searched?
He replied:. This is a bit where it's very, very flaky and I won't be at all convincing, I know that, but it would be around professional judgment, what they see around the circumstances: the behaviour of the individual and the circumstances all fall together, lead them to make a judgment. That is so flaky, you know, even I feel embarrassed saying that. But that is the truth as to what they do. Compliance with Code A is an obligation. Code A makes clear that section 44 powers should only be used for terrorism stops, and calls on officers not to discriminate.
But it provides little assistance to officers in determining whom to stop. It fails to specify what other factors beyond ethnic origin might be relevant, what weight can legitimately be given to ethnic origin, and when and whether specific intelligence would be required for ethnicity to be a legitimate factor.
Moreover, the suggestion that there may be circumstances where ethnicity could be a legitimate factor in determining whether to stop someone in the absence of reasonable suspicion which would apply when the police are looking for a specific suspect and the person stopped matches the description is likely to encourage ethnic profiling.
The updated guidance is the result of a major review by the Home Office, carried out in consultation with the police and civil society organizations. The sixty-three page document contains advice on community engagement, the legal and policy framework, the authorization process, and a suggested wording for police leaflets and posters to inform the public about use of the power. The guidance tells officers to avoid profiling, and to only stop based on appearance if it is supported by evaluated intelligence. Yet by advising officers to look at the demographic makeup of the area in which the searches are based, it effectively encourages officers to be mindful of potential disproportion in deciding whom to stop, thereby encouraging the use of ethnicity or religion as a factor even if as a negative factor, whereby an officer would determine not to stop someone because they belong to an ethnic group from whom many people had already been stopped that day.
The guidance states that stops should be based on an objective assessment. While the MPS standard operating procedures provides more detail than the NPIA guidance on selection criteria, and factors used to justify stops, it does not provide greater clarity. While the advice not to engage in stereotyping is important, the factors set out to explain the choice of persons stopped are generally not person specific, and do not provide much help for officers wishing to avoid such stereotyping. The factors enumerated as relevant to making an objective assessment are again not person specific.
The BTP also produces its own guidance for the use of section The guidance sets out three circumstances in which the BTP will use section 44 stop and search: 1 justifiable intelligence based selection; 2 intuitive selection; and 3 proactive search operations. Stops in the first category, based on specific intelligence, will clearly be related to characteristics particular to the individual, although the rationale for using section 44 as opposed to a power that requires reasonable suspicion such as under section 43 is not clear from the guidance.
Pancras railway station in February The third category refers to pre-planned operations, where some or all persons in a particular transport location are searched.
The guidance differs from that offered by the MPS in that it aims to regulate the use of stops through limiting the operational circumstances in which a person can be stopped, rather than enumerating the factors and selection criteria used to make stops. The guidance for using stop and search during pre-planned operations suggests that the reason for the stop is not specific to the person at all particularly where all persons are searched.
While it warns officers not to conduct stops in an arbitrary manner, it fails to consider that stopping all persons at a particular location simply because they are present may itself be arbitrary. There is a significant lack of transparency around the operation of the section 44 stop and search power, although some forces have begun to make more information publicly available. The Home Office quarterly, annual data available on the operation of police powers under the Terrorism Act , and Ministry of Justice annual data on race and the criminal justice system, all offer some insight into the operation of the section Statistics for BTP stops were not publicly available until the publication of a November Home Office statistical bulletin on the police use of counterterrorism powers.
The Metropolitan Police Service, with encouragement from its police authority, now makes a significant amount of data relating to section 44 available on its website, including its general stop and search equality impact assessment, its standard operating procedure, and borough level stop and search statistics.
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The City of London police also makes data available through its website, including stop and search statistics and general stop and search policy. The British Transport Police made data available to Human Rights Watch on request, including its guidance on stop and search, and data on stops, and makes data available to its Independent Advisory Group. In June , the force published stop and search data on its website for the first time, including data on section 44 stop and search for April to March However, despite some moves to openness, other aspects of the section 44 process remain shrouded in secrecy, with many forces offering national security justifications to withhold information from the public.
Several key areas lack transparency. One is the authorization process as discussed above , with even the statutory body responsible for investigating complaints against the police unable to access information about Home Office scrutiny of authorization requests. Another area is the geographic and temporal scope of section 44 authorizations. A recent survey by the British Journal of Photography prompted by concerns about the use of section 44 and other terrorism powers against photographers, discussed in more detail below revealed the results of Freedom of Information Act requests made to 46 police forces across the UK.
While there may be operational reasons for withholding information in relation to current area and temporal authorizations, it is less clear why historic data should be routinely withheld. It may be argued that since national statistics on actual stops and searches are available, it is unimportant to have details about temporal and geographic scope of authorizations in relation to particular forces. However, this argument ignores the fact that lack of information about whether a section 44 authorization is in place at a given time in a particular police force area, in the absence of a requirement of reasonable suspicion, makes it almost impossible for persons stopped outside London to know whether they have been stopped lawfully.
Following the positive decision by the MPS to narrow the geographic scope of its section 44 authorization, the same concern could now arise in London. Inadequate transparency in the authorization process and operation of section 44 powers is inherently problematic. That concern is further elevated when one factors in the importance of public confidence in the exercise of the policing powers; the historic criticism of the lack of openness in the exercise of stop and search powers in particular—which led to the explicit recommendation in the Macpherson Report on the need to publish data and analysis; the risks of arbitrary use inherent in the exercise of a power that requires no suspicion; and the importance of authorization as a control in those circumstances.
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Being stopped and searched under section 44 stop is an intrusive process. In the year to December , the most recent month period for which statistical information is available, people were stopped more than , times, mostly in London. It is impossible to determine how many people were subject to multiple stops, but anecdotal evidence suggests that some people are indeed subject to such stops.
In many cases officers on the beat—rather than counterterrorism officers—conduct section 44 stops. Given the lack of a requirement that the person stopped is suspected of involvement in terrorism, the geographic scope of the power in London and elsewhere, and the fact that many stops are carried out by ordinary beat officers, it should come as little surprise that the section 44 power is subject to overuse, in circumstances that clearly have no connection to terrorism.
At least 14 police forces have carried out stops and searches using section 44 powers in the absence of proper authorizations. In June , Security Minister Baroness Pauline Neville-Jones gave a written ministerial statement to government ministers indicating there were at least 40 occasions where stop and search operations had been carried out without proper authorizations. In one Metropolitan Police operation in April , people were stopped in the absence of a valid authorization, with the then-home secretary failing to confirm it in 48 hours as the law requires.
In , Lord Carlile, who has access to the authorizations, identified five cases in where section 44 powers were exercised in the absence of a valid authorization.
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The incident took place in an unnamed part of South London in July According to a newspaper report, there were a total of 94 complaints to the IPCC about the use of section 44 in the 18 months to December Although Home Office and Ministry of Justice data on section 44 stops are not broken down by age, figures for released by the Metropolitan Police Authority suggest that section 44 stops of children are widespread in London. According to the MPA, the Metropolitan Police in stopped searched 2, children aged 15 or under.
The use of section 44 powers against protestors has caused widespread concern. As discussed, the Joint Committee on Human Rights criticized use of section 44 in the context of policing public protest, with witnesses expressing concern that the impact of its use—even if it was not its intention—was to discourage participation in protest. The Committee also cited a case of a protestor and a journalist who were stopped outside an arms fair in London. The Gillian case was the subject of long-running litigation in the British courts, culminating in a far-reaching ruling in January by the European Court of Human Rights that the stops were unlawful, overturning earlier findings by the British courts.
Stops of photographers have also proved controversial, with MPs supporting complaints from professional and amateur photographers including tourists that their cameras and images were confiscated. Given the nature of the power, there is a risk that it will be used by officers for purposes unconnected with terrorism, for example to carry out a search for stolen goods where the office lacks the reasonable suspicion necessary to do so.
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Following the introduction of the national Policing Pledge in December , which is aimed at making police more responsive to the needs of the communities they serve, forces are supposed to have moved away from the use of performance targets based on the number of stops or arrests an individual officer carries out within a certain time period. The significant reductions in MPS and BTP stops in the second half of are tied to reductions in geographic scope of their authorizations.
Further evidence that section 44 powers are not used on an objective basis can be drawn from the fact that while some forces notably the MPS and BTP use them a great deal, other forces use them very little or not at all. Given that the London is the capital, the seat of government, and has twice been the target of terrorist attacks since , it is perhaps not surprising that a large proportion of section 44 stops have taken place in city. But it is notable that the use of the power by police forces operating in other major cities has been limited with the exception of BTP use in Scotland.
Scotland provides another interesting contrast. Its largest city, Glasgow, was the target of a failed attack on its airport in Human Rights Watch understands that the current BTP section 44 authorization does not extend to the rail network in Scotland. The discrepancy in use between forces in large urban areas and between the BTP and other forces in Scotland provides further evidence that the use of the power is not based on objective criteria.
That is hardly surprising given absence of clear guidance as to its use, and the wide discretion the power offers. An ongoing concern with the use of police stop and search powers around the world is that they disproportionately target ethnic and religious minorities. Work by the Open Society Justice Initiative on ethnic profiling by police forces in Europe identified disproportionate use of stop and search against minorities and those perceived as foreigners.
It is therefore very difficult to assess disproportion in relation to British Muslims compared to other religious groups. Human Rights Watch asked many of its interlocutors whether they believed that stop and search monitoring by religion would be helpful to allow stops to broken down by religion as well as ethnic group. The overwhelming consensus was that collecting such information would be very difficult, in part because people stopped were likely to misinterpret, or refuse to answer, the question.
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Human Rights Watch does not therefore call for such recording to be added to stop and search monitoring forms. The picture in London, where most stops take place, is particularly complex. Metropolitan Police Service figures suggest that whites are underrepresented in stops, blacks very slightly overrepresented, and Asians overrepresented, although it is notable that more than 12 percent of those stopped declined to state their ethnicity.
It is harder to analyze BTP statistics, which are currently not included in Ministry of Justice data. If all stops were in London, and assuming that those who decline to indicate ethnicity mirror the ethnic breakdown of the population in London, that would indicate an under-representation of whites and blacks and an expected number of stops of Asians. However, London is significantly more ethnically diverse than most of the UK. Using national ethnicity figures for the estimated 30 percent of stops outside London, this would suggest underrepresentation of whites and overrepresentation of blacks and Asians.
But it is hard to draw firm conclusions without data about the location and demography of BTP searches outside London, or information about the more than 11 percent of stops where ethnicity is unknown. In around 79 percent 8, of stops people defined themselves as white; in around 4 percent as black, and around 11 percent 1, as Asian. Around 3 percent declined to state their ethnicity.
This suggests that whites are underrepresented, blacks overrepresented, and Asians significantly overrepresented in stops by forces in England and Wales outside London excluding the BTP. Overall, statistical analysis suggests that Asians are overrepresented in the use of section 44 powers in forces outside London and by the MPS and may also be overrepresented in stops by the BTP, especially outside London.
It suggests that black people are overrepresented in stops by forces outside London, and may be overrepresented in stops by the MPS, and possibly by the BTP outside London. While the evidence is less compelling than for ordinary stop and search powers, it is nonetheless a cause for concern, especially given how important stop and search encounters can be to community relations with the police.
There is anecdotal evidence to support this conclusion. It cannot be safely assumed that stops of non-whites are more likely to be legitimate than those of whites, given that no suspicion is required for such stops and the MI5 briefing note indicating that demography is not a reliable indicator of risk. It is equally likely that stops of non-whites are the result of ethnic profiling, particularly stops of South Asian males, which would constitute discrimination.
Profiling constitutes a significant risk with stop and search generally. It is precisely for that reason that ethnic monitoring is carried out under PACE and other stop and search powers.
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In the absence of specific intelligence and the requirement of suspicion, the risk of profiling is even greater. And while balancing stops may mask profiling, they do not eliminate it. The fundamental difficulty with section 44 stops is that in the absence of specific intelligence or suspicious behaviour, there is no clear person-specific guidance as to who should be stopped. That makes the distinction between legitimate stops and illegitimate ones hard to draw or sustain. It also greatly increases the risk of profiling, which is not only inherently problematic, but also an inefficient use of police resources.
The European Convention on Human Rights, to which the UK is party, and which is incorporated into domestic law through the Human Rights Act, protects the right to liberty, privacy, freedom of assembly, among others. Human rights law permits states under certain circumstances to restrict certain rights, including the right to privacy and freedom of assembly.
The circumstances in which liberty can be restricted are even narrower. The European Court of Human Rights, which supervises state compliance with the European Convention, makes clear that evaluating necessity must include an assessment of whether the restriction is proportionate to the objectives sought. The purpose of section 44 power is clearly legitimate under human rights law: protecting the public against terrorism.
However, the issue of whether section 44 is proportionate to its objectives falls into question when the way that it is practiced is considered. But the statistics do not indicate whether the arrests were for terrorism offences, or how many of those arrested were successfully prosecuted for a terrorism offence. In relation to oversight, it is notable that when the UK Law Lords now Supreme Court upheld the lawfulness of the section 44 power in the Gillan case in March , it gave significant weight to the safeguards against its misuse.
As discussed in the section on safeguards above, while impressive on paper, in practice they are ineffective particularly since it is clear that the Home Office does not seriously scrutinize authorization requests, let alone refuse them; that rolling authorizations are common; and that it is extremely difficult for a member of the public to determine whether they have been lawfully stopped, since the geographic and temporal scope of police authorizations are secret including now in London.
Oral statement to Parliament Stop and search powers under the Terrorism Act section 44 : Home Secretary's statement. Published 8 July Delivered on: 8 July Explore the topic Counter-terrorism Defence and armed forces National security. Is this page useful? Maybe Yes this page is useful No this page is not useful Is there anything wrong with this page? Thank you for your feedback.