Amid growing public concern about stop and search powers under terror laws and the challenge by Liberty in the High Court over their misuse, Arun Kundnani examines some of the key issues in the debate.
The new powers introduced under the Terrorism Act
Under the Police and Criminal Evidence Act (1984) stops could only be carried out by police if they had ‘reasonable suspicion’. But in Section 44 of the Terrorism Act 2000 new powers were introduced to allow stops and searches in order to prevent terrorism – no such suspicion was required. To regulate the use of such wide powers a special process of ministerial authorisation was set up to restrict such stops to a limited place and time where it was thought, on the basis of specific intelligence, necessary to prevent terrorism. And before police forces could use these powers, an authorising officer of Association of Chief Police Officers (ACPO) rank had to issue an order with the reasons for the authorisation. The order could last no longer than 28 days and the Secretary of State had to approve the authorisation within 48 hours.
However, in practice, the Metropolitan police has had a rolling authorisation across its whole district since February 2001. This has been justified on the grounds that the whole of London has been under permanent threat of terrorist attack over this time. And this fact only emerged by chance. It was only during a court hearing into the policing of protests at an arms fair in the Docklands in October 2003 that it emerged that the Section 44 powers had, in fact, been renewed every 28 days since the Act came into force in February 2001. Till then, the public had not even been told that these powers were in permanent effect.
The operation of these powers is surrounded with a climate of secrecy and non-accountability that cannot be justified by operational reasons alone.
The Terrorism Act 2000 has led to ‘racial profiling’
The so-called ‘code A guidance’ on Section 44 advises first that: ‘Officers must take particular care not to discriminate against members of minority ethnic groups in the exercise of these powers.’ But it goes on to say that: ‘There may be circumstances, however, where it is appropriate for officers to take account of a person’s ethnic origin in selecting persons to be stopped in response to a specific terrorist threat (for example, some international terrorist groups are associated with particular ethnic identities).' There is a concern that this clause effectively gives a licence to the police to stop and search people on the basis of an ‘ethnic’ profile of terrorist suspects, what US civil liberties activists would describe as ‘racial profiling’.
Specifically, there is concern that police forces may be using Section 44 to target people who appear to police officers to be Muslim. The Home Office’s Stop & Search Action Team Interim Guidance, which is a guidance document for police managers published in 2004, suggests this interpretation when it states that: ‘There may be circumstances where it is appropriate for officers to take account of a person’s ethnic background when they decide who to stop in response to a specific terrorist threat (for example, some international terrorist groups are associated with particular ethnic groups, such as Muslims).' Of course, as the authors of this document ought to know, there is no such ethnic group as ‘Muslims’. What is revealed here is anti-terrorism being used as a justification for racial profiling against Asians, Blacks and people of Middle Eastern appearance – the ethnic groups police officers would most likely associate with Islam. This may explain why Blacks and Asians were both four times more likely than Whites to be stopped under these powers in 2002/03. Furthermore, according to one recent report, the number of Asian and Black people stopped and searched in London streets by police using anti-terrorism powers increased more than twelve-fold after the July 7 bombings.
There seems to be confusion within the authorities as to whether such discriminatory stops are justifiable on this matter. In March 2005, Home Office minister Hazel Blears stated that Muslims should accept as ‘reality’ that they would be stopped and searched more often than others – going against the grain of much of the post-Macpherson agenda on stop and search. On the other hand, documents such as the Association of Police Authorities’ Know your rights leaflet, which is widely used as a guide for the public on their rights during a stop and search, states that: ‘You should not be stopped or searched just because of: your age, race, gender, sexual orientation, disability, religion or faith; the way you look or dress, the language you speak.' Two different messages are being sent out here. It is likely that Hazel Blears’ message is a truer reflection of actual policing practices.
Stops found no terrorists
In the year 2002/3, police in England and Wales stopped and searched an average of 60 people a day as suspected terrorists, the majority while driving. That amounted to 21,577 stops and searches in one year under Terrorism Act powers. Whereas 13 per cent of stops and searches under normal police powers resulted in an arrest, the arrest rate for stops and searches on suspicion of terrorism was just 1.7 per cent. And the overwhelming majority of these arrests had nothing to do with terrorism. Only eighteen arrests in connection with terrorism were made in that year as a result of the 21,577 stops and searches carried out. None of these arrests resulted in a conviction for terrorist offences. In other words, although tens of thousands of people were stopped and searched under suspicion of terrorism, these searches did not lead to a single conviction. The figures recorded in the following year showed a similar pattern. By 2004/5 when one hundred people were stopped each day, 455 arrests were made out of 35,776 searches, a rate of 1.2 per cent.
Can the powers be justified as a deterrent?
Police forces themselves know that they cannot justify anti-terrorist stops and searches in terms of convictions. That is why they now say that the real value of anti-terrorist stop and search is as a deterrent to would-be terrorists. Police authorities have given evidence in parliament that a terrorist who is planning to attack Westminster tube station, for example, may be deterred if he sees that he may be stopped and searched by police officers.
But these powers were never justified to parliament on the basis of a general deterrent effect resulting from searches of people. The intention was that their use would be tied to specific intelligence and used with a view to disrupting and arresting terrorists. Furthermore, any plausible deterrent effect would require a reasonable likelihood that any terrorist would be stopped and searched in the midst of carrying out a terrorist operation. That would require such a massive use of stop and search powers as to severely disrupt the daily lives of millions of people in London, especially if, as the Metropolitan Police argue, there is a permanent London-wide threat of terrorist attack. To swamp the capital with such a large degree of arbitrary stops and searches that terrorists are likely to be deterred from attacking London is not only a huge waste of police resources which could be used more efficiently in preventing terrorism; it is also a hugely disproportionate price to pay in terms of particular communities’ civil rights. Finally, it is hardly credible that terrorists will just give up a planned attack if they think that they might be searched by a police officer.
The result of anti-terrorist stop and search is the criminalisation of entire communities and the placing of tens of thousands of innocent people under suspicion. None of the lessons of the past – in relation to policing Black and Irish communities – appear to have been learnt. The damage to community relations is already clear. Youth workers in areas of London where police are targeting large numbers of Asian youths for stops and searches, such as in Tower Hamlets, describe an increasing atmosphere of tension. One youth worker reported that the situation locally was, in his words, like ‘cowboys and Indians’. Even before 7/7, there were numerous anecdotes of young Asian men being stopped and searched, getting abused, being accused of membership of al-Qaida or even being beaten up. In many communities, there is a growing climate of fear; underground stations and bus stops have become places where police and immigration officers stop everyone whose skin colour or accent marks them out as suspect.
Though the Independent Police Complaints Commission can take up complaints about the manner in which Section 44 stops and searches are carried out, there appears to be no provision for complaints about the fact that the stop and search was carried out at all, even though this is the main cause of public concern. Complaining, as commonly happens, that a police officer carried out a stop and search without any reason is redundant when there is no requirement in the guidelines that there be ‘reasonable grounds for suspicion’.
Misused on legitimate protestors
When the Terrorism Act 2000 was presented to parliament, it was argued that its measures were essential to meet the threat of international Islamic terrorism. Yet its powers are being used today against people who are protesting peacefully against the government. The very loose definition of terrorism in the 2000 Act leads to a real danger of Section 44 stop and search powers being used to suppress political dissent. Section 44 was used to search protestors outside the DSEi Arms Fair at the Excel Centre in Docklands in October 2003 and against anti-war protestors on their way to the Fairford Air Base earlier in 2003. It appears that stop and search was used on both these occasions for no other reason than to intimidate legitimate protestors. One protestor at the Fairford military base, for example, was reportedly ordered by police to strip down to his vest and wait in the cold for twenty minutes during a search at night when the temperature had fallen to minus four degrees.
The new powers should be repealed
There is no evidence that Section 44 has helped prevent, detect or prosecute terrorism in any form and therefore new provisions should be repealed. For, if police officers have a reasonable suspicion that a criminal act, including terrorism, is about to be committed, they can in any event stop and search under the old PACE powers and go on to arrest a suspect if there are reasonable grounds.