The UK Secretary of State for the Home Department, Theresa May, has announced that the draconian section 44 of the Terrorism Act 2000 is to be suspended. Section 44 allowed certain police commanders and assistant chief constables to designate certain areas as places in which the section 44 stop and search power. The power allows police to stop and search pedestrians and vehicles in those areas where they have a suspicion that the individuals held were in possession of articles that may be of use for terrorism, but without showing any grounds for that suspicion. The power allowed almost unfettered stops and searches akin to the ‘sus’ powers that operated in Britain before the adoption of the Police and Criminal Evidence Act 1984.

Earlier this year the European Court of Human Rights reviewed the stop and search of two individuals attending a protest at an arms fair. The Court held that the searches were in breach of Article 8 ECHR (right to privacy) as they were not “in accordance with law”. The Court noted that the powers were not “sufficiently circumscribed nor subject to adequate legal safeguards against abuse” (Gillan & Quinton v UK Judgment 12 January 2010 – for previous discussion by Vicky see here).

Theresa May told the House of Commons that she”will not allow the continued use of section 44 in contravention of the European Court’s ruling and, more importantly, in contravention of the civil liberties of every one of us.” The Home Office website sets out the Government’s interim measures as follows:

Interim guidance for the police has now been introduced which sets a new suspicion threshold. Officers will no longer be able to search individuals using section 44 powers. Instead they will have to rely on section 43 powers – which require officers to reasonably suspect the person to be a terrorist. Police may search only vehicles under section 44 of the law, and then only if they have reasonable suspicion of terrorist activity.

Liberty Director, Shami Chakrabarti, has welcomed the decision, noting that section 44

“is a blanket and secretive power that has been used against school kids, journalists, peace protesters and a disproportionate number of young black men. To our knowledge, it has never helped catch a single terrorist. This is a very important day for personal privacy, protest rights and race equality in Britain.”

Much of the Terrorism Act 2000 codified extraordinary measures that had previously only been accepted as part of the UK Government’s reaction to the Troubles. The decision to codify those measures as permanent legislation rather than to review (and repeal) much of the law was an early sign of the illiberal attitude towards criminal justice that would dominate much of the rest of New Labour’s three terms in Government. The 2000 Act was followed by several others which have variously provided for internment, house arrest under control orders, lengthened pre-charge detention, heightened surveillence and a proliferation of police powers. While the Government’s decision to suspend the operation of this provision is to be welcomed, much more work needs to be done if New Labour’s excesses are to be undone. Formally repealing section 44 would be a useful first step.

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Written by Cian Murphy