Counter-terrorism stop and search powers code of practice consultation

We are seeking comments on a consultation on a draft code of practice governing counter-terrorism stop and search powers currently being considered by parliament in the Protection of freedoms bill.

The draft code includes guidance on:

• the scope of the powers
• requirements for making an authorisation for the powers
• briefing and tasking of officers
• avoiding discrimination
• specific issues relating to stop and search and photographers
• conduct of stops and searches
• recording and monitoring of use of the powers
• community engagement

The Northern Ireland Office is consulting on a separate draft Code of Practice for the exercise of these powers in Northern Ireland. The document is available on the Northern Ireland website.

On 26 January 2011, the Home Secretary announced the findings from the review of counter-terrorism and security powers. One of the recommendations of the review was that stop and search powers under sections 44-47 of the Terrorism Act 2000 which, when and where authorised, allowed police to carry out stops and searches without reasonable suspicion, should be repealed and replaced with a much more limited power.

This recommendation was based on the government’s commitment to introduce safeguards against the misuse of terrorism legislation and in order to bring the powers into line with the European Convention of Human Rights (ECHR), following the European Court of Human Rights ruling in the case of Gillan and Quinton v United Kingdom.

The review recommended significant changes to bring the power into compliance with ECHR rights and ensure that its previous misuse is not repeated, including:

i. The test for authorisation should be where a senior police officer reasonably believes that an act of terrorism will take place. An authorisation should only be made where the powers are considered ‘necessary’, (rather than the previous requirement of ‘expedient’) to prevent the act of terrorism.

ii. The period of authorisation should be reduced from the current maximum of 28 days to 14 days.

iii. It should be made clear in primary legislation that the authorisation may only last for as long as is necessary and may only cover a geographical area as wide as necessary to address the threat. The length of authorisation and the extent of the police force area that is covered by it must be justified by the need to prevent the suspected act of terrorism.

iv. The purposes for which the search may be conducted should be narrowed to looking for evidence that the individual is a terrorist or that the vehicle is being used for purposes of terrorism rather than for articles which may be used in connection with terrorism.

v. The Secretary of State should be able to narrow the geographical extent of the authorisation (as well being able to shorten the period or to cancel or refuse to confirm it as at present).

vi. Robust statutory guidance on the use of the powers should be developed to ensure that the scope for misinterpretation or misuse of the powers is minimised. 

These recommendations are being implemented by provisions in the Protection of Freedoms Bill which was introduced to Parliament on 11 February 2011. The provisions of the bill will:

• permanently replace the stop and search powers under sections 44-47 of the Terrorism Act 2000 with powers under new sections 47A and Schedule 6B to the 2000 Act (the old powers were replaced temporarily by a remedial order made under the Human Rights Act 1998. The remedial order (link) will cease to have effect on passage of the provisions in the Protection of Freedoms Bill)
• extend counter-terrorism stop and search powers with reasonable suspicion, to include searches of vehicles

Before the powers come into force, the Bill also requires a code of practice to be issued which provides guidance to the police on the exercise of these stop and search powers, and on the authorisation of the powers under section 47A and Schedule 6B.

The majority of responses welcomed the introduction of the new code of practice to ensure that the new counter-terrorism stop and search powers of the Terrorism Act 2000 are used effectively and fairly. The department has given careful consideration to the representations received in developing the code and has made a number of changes to it as a result.

The revised codes of practice for Great Britain and Northern Ireland will come into force once approved by Parliament. Both documents can be found at www.official-documents.gov.uk.