As predicted, section 44 of the Terrorism Act is dead. In a statement to the House of Commons today, Home Secretary Theresa May said that police officers will no longer able to use stop and search powers under section 44 on individuals, although they will remain for vehicle searches:
Labour's response from the Shadow Home Secretary was predictably depressing: Alan Johnson complained that the European Court of Human Rights' judgement was based on the way the powers were used "some years ago" and claimed that section 44 incidents have "reduced considerably over the last two years". This is a line straight from the Association of Chief Police Officers, who argued in June that since a review in December 2008, "practice advice [had been] issued to forces, supported by training" and "no errors have been found in the application process [of section 44] since that date".
Since last Wednesday, I have sought urgent legal advice and consulted police forces. In order to comply with the judgement – but avoid pre-empting the review of counter-terrorism legislation – I have decided to introduce interim guidelines for the police.
I am therefore changing the test for authorisation for the use of section 44 powers from requiring a search to be ‘expedient’ for the prevention of terrorism, to the stricter test of it being ‘necessary’ for that purpose. And, most importantly, I am introducing 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.
And officers will only be able to use section 44 in relation to the searches of vehicles. I will only confirm these authorisations where they are considered to be necessary, and officers will only be able to use them when they have ‘reasonable suspicion’.
These interim measures will bring section 44 stop and search powers fully into line with the European Court’s judgement. They will provide operational clarity for the police. And they will last until we have completed our review of counter-terrorism laws.
Clearly neither ACPO or Johnson are aware of the arrest of a press photographer covering climate change activists at London City Airport or the stop and search of the Tory MP for Croydon, Andrew Pelling under section 44, both in early 2009.
Nevertheless, the suspension of section 44 powers seems like good news, but one problem with guidelines is that they can be ignored. In December 2009, the head of ACPO's Media Advisory Group, Andrew Trotter, issued guidance to police forces about the use of section 44 and the right of photographers, but within days of this 'clarification', armed police detaining an architectural photographer in the City of London. Then, of course, there is the more recent ill-treatment by police of the young photographer Jules Mattsson, which demonstrated that guidance is far from a priority to some police officers at street-level.
That's why we have to remain vigilant. Let's see whether the government's "interim measures" are adhered to. Equally, we need to see whether the police officers simply rely instead on section 43 powers to stop and search people- it was this part of the Terrorism Act that was used against Mattsson in a another incident just two days ago.