ASSESSMENT
‘It is an old and cherished tradition of our country that everyone should be free to go about their business in the streets of the land, confident that they will not be stopped and searched by the police unless reasonably suspected of having committed a criminal offence.’
– Lord Bingham99
INTRODUCTION
This chapter will consider the use of the pre-emptive crisis powers under s44 TA 2000, and the negative impact or risks that such crisis powers create. S44 itself was a counter-terrorism measure that enabled the police to stop and search anyone within a designated area without grounds for suspicion. Measures of this kind create a number of risks related to human rights, specifically the right to privacy and arguably the right to liberty. In addition there are
sociological risks caused by such measures, including the creation of social boundaries resulting in cultural segregation and ‘suspect communities’ (Greer, 2010; Fenwick, 2010); poor relationships between citizens and the police; and a negative perception of the police.
When considering the impact that such a pre-emptive measure has, there will be discussion of the legal challenges against the use of s44. Following the case of Gillan and Quinton v
United Kingdom100 the MacDonald Report (2011) found that although stopping and searching suspects without reasonable suspicion is operationally acceptable in exceptional
circumstances (2011: 4), it recommended the need to be committed to introduce safeguards to prevent the risk of misuse (2011: 15). In the Independent Terrorism Review (2006) Lord
99 Lord Bingham House of Lords decision in R (on the application of Gillan (FC) and another (FC)) v
Commissioner of Police for the Metropolis [2006] UKHL 12.
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Carlile QC accepted that there was "little or no evidence that the use of section 44 has the potential to prevent an act of terrorism as compared to other statutory powers of stop and
search".101 There are scholars, like Walker (2008) that believe that since the inception of s44
there have been five patterns that have manifested:
1. A continual use and renewal of s44;
2. S44 has a low rate of arrests on grounds of terrorism;
3. Higher rate of non-terrorist arrests;
4. Ethnic minorities have been disproportionately impacted upon; and
5. There has been an imbalanced geographical enforcement of s44.
The MacDonald Report (2011) recommended that there was a need to change the test for authorising s44 from 'expedient' to 'necessary', which one might argue is similar to a test of immediacy of the threat. A test based on the immediacy of the threat would examine how real or necessary it is to act before the terrorist attack is realised; this would therefore be an
intelligence based analysis of the believed threat. Whilst this may be viewed as an assessment of proportionality, it also enables the consideration of effectiveness. Under the report it was recommended that powers similar to s44 should only be authorised for a maximum of 14 days, rather than 28 days. This would help reduce the likelihood of a continuous rolling- programme of such crisis powers as seen post- 9/11 with s44.
The report supported the idea of increased accountability and transparency as safeguards within crisis powers like s44. This would be achieved through clear communication as to why such powers were authorised and restricting the use of those powers to a specific
geographical areas, therefore preventing such powers from being applied to ‘the whole of London’ as was seen during the lifetime of s44. Furthermore on accountability, the report suggested the police should be given discretionary use of crisis powers but there needs to be robust statutory guidance on its use. Lord MacDonald believed that s44 needed to be repealed
101 Lord Carlile QC of Berriew 'Report on the Operation in 2006 of the Terrorism Act 2000 and of Part 1 of the
Terrorism Act 2006' 2007b (June) 31: 114
<http://tna.europarchive.org/20100419081706/http://security.homeoffice.gov.uk/news-
publications/publication-search/legislation/terrorism-act-2000/independent-review-responses/lord-carlile- report-07?view=Binary> accessed 4th September 2013.
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and replaced – a view shared by Lord Carlile QC,102 conceding that s44 had been proven to
be an ineffective power to counter-terrorism commenting: '[He was] offended by its [s44] use' and that it was a 'very major problem', describing it as 'oppressive'. This met its demise when
it was challenged at the ECtHR, where it was accepted to be 'coercive'.103
The decision of the ECtHR in the Gillan and Quintion case lead to a Parliamentary statement
by the then Home Secretary (House of Commons, 2010-2011, 8th July 2010), as mentioned
earlier the former coalition UK government sought to pass the Protection of Freedoms Bill
('PoFB') 2011 and receive its Royal Assent.104 S59 PoFA 2012 repealed s44 TA 2000 and
replaced it with s61 PoFA 2012.105 The s61 provisions purports to tighten the use of crisis
powers of stop and search, although this thesis will establish that whilst s61 is an improvement on s44, the provision retains the same risks relating to human rights and sociological impact which still fails to subsequently support the UK Strategy to counter- terrorism.
This chapter will focus on s44 underpinning as it does the extent to which s61 is an
improvement to counter-terrorism and therefore remains a risk. It will be argued that crisis powers such as s44 that provide no or insufficient safeguards, such a lack of accountability, create such risks. It will be argued that the consequences of the risks created by such crisis powers support terrorist propaganda and restricts, if not prevents, the police from pre-empting and preventing terrorism. It will also support the conclusion in Chapter Six, that pre-emptive and preventative counter-terrorism measures are ineffective because they do not assist in the intelligence and evidence gathering process to secure prosecution. This chapter will argue that safeguards, such as accountability and a test of suspicion should be created in order to reduce risks and strengthen the effectiveness of such measures.
102 Lord Carlile QC of Berriew (fn 8). 103 Gillan and Quinton (fn 15) [59].
104 The Protection of Freedoms Bill (PoFB) 2011 received its Royal Assent on the 1st May 2012 and will be
referred to the Protection of Freedoms Act (PoFA) 2012.
105 Protection of Freedom Act 2012, Section 61: "(1) A senior police officer may give an authorisation under
subsection (2) or (3) in relation to a specified area of place if the officer – (a) reasonably suspects that an act of terrorism will take place; and (b) considers that – (i) the authorisation is necessary to prevent such an act; (ii) the specified area or place is no greater than is necessary to prevent such an act; and (iii) the duration of the authorisation is no longer than is necessary to prevent such an act".
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Determining whether s61 is an effective and necessary crisis power is important because it was one of the failings of s44 raised by the ECtHR in the Gillan and Quinton case. The test of 'expedient' (s44(3)) gave no requirement or consideration of a risk assessment (Middleton, 2011b: 244); the s44 crisis powers were "neither sufficiently circumscribed nor subject to
adequate safeguards against abuse...[and therefore, not] in accordance with the law".106
Proportionality could assist in the assessment of effectiveness, this was best described by Rodin (2004) as a ‘quasi-consequentialist’ principle that deems there is a moral limit of the
prima facie justified actions (i.e. stop and search under s44) and is triggered when actions do
more harm than good. Crisis counter-terrorism measures like s44 and s61, are exhibited when a person’s human rights are being harmed, or exposed to further risks of harm, without there being justification (Rodin, 2003: 768). For example, detaining a person or many people without reasonable belief that they are a terrorist or involved in terrorist activity, which may be based on an incorrect assertion may be viewed as unreasonable and therefore
disproportionate; as such it is important that the potential terrorist threat is assessed.
Safeguards determining the immediacy of the threat can inform the decision-maker whether it is necessary to act, this would assist in determining whether enforcement of a crisis power was proportionate and effective. Whilst one may view s44 and s61 as a way of deterring terrorist activity, if the measure restricts the opportunities to collect intelligence and evidence to secure subsequent control, management or prosecution of terrorists then the measure, it will be argued, is ineffective and contradicts the UK Strategy 2011.
As part of the assessment of considering proportionality and effectiveness, the timing of any response needs to be considered. Under s44 the power could be used when it was ‘expedient to do so’ or when it was understood to be advantageous, as described in the Gillan and
Quinton case, without defining when this should be. The progression of the Gillan and Quinton case to the ECtHR107 will be discussed to support this thesis argument that pre- emptive crisis powers, like s44, should only be enforced when a terrorist threat will be realised or imminent. This will enable the identification of risks and issues pertaining to human rights. It will be argued that human rights, specifically ones right to privacy, are being
106 Gillan and Quinton (fn 15) [87]. 107 Gillan and Quinton (fn 15).
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negatively impacted upon either because of the courts deferential attitude towards the
governments approach or they are gripped by the fear of ‘what if...?’. This becomes evidence to support the doctrine of ‘state of exception’ (Agamben, 2005) as mentioned in the
Introduction of this thesis. Ultimately, the questions that need to be answered are: Do the pre- emptive measures support the UK Strategy to counter-terrorism? Are they an effective way of countering terrorism? In light of the risks identified, do the police have a role in countering terrorism?
THE ROLE OF THE POLICE
The British Police are considered to be 'the most visible of all criminal justice institutions'108
in the UK, providing a strong link between the police and citizens which is created by the style and tactics adopted by the police (Messenger, 2008: 4). This link is created by the notion that citizens work as police, arguably strengthened by the Police Reform Act (RFA) 2002 which enables members of the public to be trained as Police Community Support
Officers (PCSO’s)109 to work alongside ordinary police officers.
The Police Foundation and Policy Studies Institute in 1996 defined the role of the police as being responsible for fairly and firmly upholding the law and bring offenders to justice; preventing crime; protecting and reassuring the community; and to be seen executing their
duties with 'integrity, common sense and sound judgment'.110 The police are considered to be
responsible for upholding the law and meeting public expectations (Goldsmith, 2010: 916). It is acknowledged by some that the police are 'primarily concerned with preventing and
detecting crime' (Reiner, 2000: 170), although there is recognition of historical and
sociological evidence which shows that 'crime-fighting has never been, is not, and cannot be the prime activity of the police', although this would be a popular perception by the media, public and is reflected in government policy (Reiner, 2000: 170).
108 S Chermak and A Weiss 'Maintaining Legitimacy Using External Communication Strategies: An Analysis of
Police-Media Relations' 2005 Journal of Criminal Justice 33: 501-512, 502.
109 This thesis does not cover the powers of Police Community Support Officers and their powers, however it is
important to note that PCSO’s are entitled to stop and search a person under the Terrorism Act 2000.
110 Policy Studies Institute 'The Role and Responsibilities of the Police: The report of an independent inquiry
established by the Police Foundation and the Policy Studies Institute' 1996 11:1.4
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The police have faced profound changes in law, transforming their powers and accountability as well as covert changes in policy and practice (Reiner, 2000: 167). Some scholars have remarked that policing has become a ‘social good’ and is an important component between the state and its interaction with the agents (eg the police) in their execution of justice (Loader and Walker, 2001). Reiner (2000) suggests that the police and chief constables have become less accountable at local level over the years, whilst accountability to government has increased (2000:167) and yet despite this view, UK policing is considered “public policing”. This change in accountability may be considered defining characteristic of state power and control (Zedner, 2006a: 78; Messenger, 2008: 3) and a risk to the concept of public policing if accountability to the public were reduced. It will be argued that when enforcing counter- terrorism measures public support and perception is important, meaning there should be clear accountability when a measure is enforced by police.
The enactment of PACE 1984 was a landmark codification of police powers including stop and search, arrest and detention of suspects, by providing safeguards when those powers are executed (Reiner, 2000: 167). This development fundamentally transformed the ‘doctrine of constabulary independence’ (Reiner (2000:167) which supported the constables independent behaviour of having an unprompted sniff, instead PACE created a system of balance and checks which resisted arbitrary decisions. Reiner (2000) suggests that developments and changes in police identity and regulation were exposed to theories of a ‘rational deterrent model’ to policing crime, which consisted of:
More police power + Greater deterrence = Less crime
Although this formula was intended to apply to ordinary police powers, it will be argued that the wider police powers intended on tackling terrorism, such as s44, did not necessarily result in a reduction of terrorist-related activity. On the contrary such powers have a coercive impact, causing greater harm to public perception of the police and do not tackle terrorism effectively. If the role the police are expected to play in the fight against terrorism is
criticised or questioned, then they will face greater difficulties in maintaining positive public perception which may have a consequential negative impact on how the police are viewed. For example, if the police are seen to exploit the use of crisis powers without safeguards
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providing accountability or remedy when an abuse of process occurs, the wider public may perceive the police as not meeting the core duties as set out by the Police Foundation and Policy Studies Institute in 1996 (see page 51of thesis).
Differences between ordinary policing & counter-terrorism policing.
There has been debate to the effect that since the 1980s policing has moved from a
‘consensus’ style of policing towards a more militaristic and coercive approach, which can be seen in powers linked to targeted surveillance and pre-emptive intelligence-gathering (Hall et al, 1978; Maguire, 2000; Sheptycki, 2000; Reiner, 2000:174). The traditional style of
policing was considered to be reactive and incident-driven, focusing on response rates to incidents and retrospective investigation (Peak, Bradshaw and Glensor, 1992: 26). It is noteworthy that ‘consensual policing’ occurs when the police and citizens clash and can be contrasted with the ‘law enforcement’ style of policing commonly seen in the United States (Messenger, 2008: 4). The latter creates a divergence between citizens and the police, or state; however, the former is believed to reconcile these concepts by presenting the police as “citizens in uniform” (Loader, 1997: 5; Messenger, 2008: 4), which one would argue is a positive form of policing and in line with traditional British policing as already discussed.
A positive relationship or perception between the police and citizen can support the police in their duties to detect and investigate criminal behaviour; it can further support them in pre- empting and preventing terrorism by working with communities and the general public. The public’s role in supporting the police in gathering information about terrorist suspects can be seen from a number of UK anti-terrorism campaigns (eg Metropolitan Police ‘Counter
Terrorism Campaign, 2012).111 Some counter-terrorism experts have expressed the
importance of reducing or minimising the number of campaigns raising public awareness of terrorism due to the suspicion and fear such campaigns can instil without there being a need to do so (Benoît Gomis, 2013a). Later in this chapter it will be discussed in greater detail that a negative perception of the police, or negative relationship between them and the public, does not assist them in their duties to protect the public or tackle terrorism.
111 Metropolitan Police 'Counter Terror Campaign' 2012 (February)
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As mentioned in Chapter One, the TA 2000 was enacted pre-9/11 at a time when the UK government and Parliament had hoped such powers would not be needed and amalgamated previous counter-terrorism legislation; the intention to stop a cycle of introducing emergency powers (Walker, 2006: 1142). When s44 was presented to Parliament it was believed it did not fall foul of Article 8(1) ECHR, and if it did, it would meet one of the exceptions under
Article 8(2).112 Following 9/11 the police developed a greater risk management approach
which supported their proactive style of policing to counter-terrorism, as confirmed by Deputy Assistant Commissioner Peter Clarke (pages 14 and 15 of this thesis). At the Counter- Terror Expo 2011 John Yates, the then Metropolitan Police Service Assistant
Commissioner Specialist Operations, stated that the terrorist threat is even more severe than it
has ever been, evolving “in a way that few could have predicted”,113 requiring an equally
agile response.114 As policing terrorism became preventative, it meant there had to be a
difference between preventing terrorism and investigating terrorism. Although preventative policing is the focus of this chapter, investigative policing and negative impact of counter- terrorism measures will be considered in more depth in Chapter Five. The ‘National Counter Terrorist Policing Network’, as described by John Yates, was therefore ‘interwoven’ into the mainframe of UK policing. The network itself consists of the Metropolitan Police’s Counter Terrorism Command (henceforth 'CTC') which is seen as the ‘operational nucleus’; then regional structures; and frontline police. The frontline police officer that provides support at a local and regional level is considered an integral part of counter-terrorism policing. This level of counter-terrorism policing may prime facie give the impression that police are still citizens in uniform, similar to ordinary policing as previously discussed in this chapter. This
‘pyramidal model of command’ under the CTC can support in the detection and management
112 European Convention on Human Rights, Article 8: '(1) Everyone has the right for his private and family life,
his home and his correspondence; (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety of the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.'
113 John Yates Metropolitan Police Service Assistant Commissioner Specialist Operations 'Tackling Terrorism –
Achieving National Security Policing the Terrorist Threat' Counter Terror Expo Conference (19th April 2011)
<http://www.acpo.police.uk/ContentPages/Speeches/JohnYatesTacklingTerrorism.aspx> accessed 15th August 2011.
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of the terrorist threats across the UK, a model described by John Yates as 'the envy of our
international partners'.115
It is argued however, that John Yates fails to understand that traditional policing is supported by the consensus or co-operation of the citizen, rather than a public perception that the police are citizens in uniform. Whilst non-compliance with ordinary stop and search powers (eg s1 PACE) can create an offence, counter-terrorism policing has taken on a form that amounts to ‘proactive coercion’, as will be shown by s44. Non-compliance under ordinary stop and search powers would not create an inference of guilt or suspected criminal activity, whereas non-compliance with a s44 stop and search command would have entitled the officer to draw inferences, supporting suspicion and arrest of the suspect for non-compliance under s47 TA 2000. The pyramidal model of command provides a useful insight into the policing command