Section 44: Causes of Concern

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Submission by the Islamic Human Rights Commission to the Home Office in response to the consultation document 'Section 44'.

Ineffectiveness

  1. The use of section 44 powers has not proven effective in preventing or detecting acts of terrorism from occurring. Section 44 randomly selects members of the public to be stopped and searched without the need for any objective level of suspicion. The old PACE powers can be used if police officers have reasonable suspicion that a criminal act of terrorism will take place. Under the PACE powers police officers can arrest a suspect if they have reasonable grounds.

  2. Such a policy allows powers to be exercised without the need for good intelligence or effective policing. This ultimately could lead to lazy policing which undermines public safety and security.

  3. Instead, powers are being exercised based on ethnic, religious and racial profiling which has historically been shown to not only be ineffective in fighting crime, but on many occasions, it has been proven to be counter-productive by alienating and criminalising communities. Examples abound both in this country, with the experiences of the Black and Irish communities respectively, and abroad, with reference to the mass interment of Japanese-Americans during the Second World War.

  4. There is a concern that the following clause empowers police officers to stop and search on grounds of an 'ethnic and religious' profile of terror suspects:The 'code A guidance' on Section 44 advises first that: 'Officers must take particular care not to discriminate against members of minority ethnic and religious 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.' [1]

  5. This leads onto the issue at which police officers, under the powers of Section 44, will suspect anyone who appears to be a Muslim or is perceived to look like a Muslim (appearance, dress, skin tone etc). The Home Office's Stop & Search Action Team Interim Guidance, published in 2004, suggests this interpretation in stating 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).' [2]

  6. This clause is problematic in that, firstly, there is no such ethnic group as 'Muslims', and secondly, it again justifies racial profiling.

  7. In the UK, the proportion of 'Asians' stopped by police under section 44 tripled in the 18 months following the 9/11 attacks. A total of 44,543 searches were made under section 44 (1) and 44 (2) of the Terrorism Act 2000 in 2005/6 compared with 33,177 in 2004/5, an overall increase of 34%. Searches of Asians increased from 3,697 to 6,805 (up 84%), while searches of Blacks increased from 2,744 to 4,155 (up 51%). As with stop and searches under s1 PACE, resultant increased street activities of the police led to an increase in the use of stop and search powers under Section 44 of the Terrorism Act 2000. [3]In the year 2002/3, police in England and Wales stopped and searched 21,577 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. Likewise, out of the 21,577 stops and searches carried out in 2002/3, only 18 terror-related arrests were made, while 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.

  8. 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. [4] Official government figures released in October 2007 showed that only 1 out of every 400 stop and searches led to an arrest. [5]

  9. This issue has been exacerbated by an apparent endorsement by senior ministers. In March 2005, Home Office minister Hazel Blears suggested that Muslims should accept as 'reality' that they would be stopped and searched more often than others, contradicting the post-Macpherson agenda on stop and search. But documents such as the Association of Police Authorities' 'Know Your Rights' leaflet, 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 opposite messages are being sent out here. [6]

  10. To date, all captured and convicted terror suspects have been the product of intelligence-based investigations over extended periods, focused on time-bound and event-specific matters, not racial groups or stereotypes.

  11. By branding whole communities as suspect, ethnic and religious profiling not only legitimises prejudice amongst the general public, it can also engender feelings of humiliation and resentment amongst targeted groups, as in this case the Muslim community. On a practical level, police intelligence gained from communities can dry up upon lack of cooperation from that community. Disproportionality in the form of ethnic and religious profiling is a critical issue for the police, as evidence shows that negative police practices can lower satisfaction levels and damage public confidence in the police. [8]

  12. Police and security experts claim that stop and searches are acting as a deterrent to would be terrorists. [7] Also leading senior police officers have recently confirmed this fact, stressing that Section 44 has not been an effective counter-terrorism tool, serving only to alienate and criminalise communities. It is deeply concerning that individuals are being stopped under Section 44 as a deterrent tool combined with ethnic and religious profiling; allowing terrorists to adapt accordingly by simply taking measures not to not fit the profile.

  13. Profiling may divert attention from actual threats that fall outside the prescribed criteria. For example, prior to the London attacks on 7/7, MI5 had come across the 'leader' of the bombers in connection with another plot, but failed to pursue him as he did not fit their profile. In the Middle East, a terrorist disguised as an Orthodox Jew carried out an attack. This clearly indicates that such a policy may, not only be ineffective in eliminating terrorist activity, but can significantly disrupt the daily life of innocent people and communities, thus proving to be antagonistic to the spirit of the legislation.

  14. The scope for the abuse of powers under the very loose definition of terrorism in the 2000 Act, leads to a real danger of the Section 44 stop and search powers being used to suppress political dissent. For example, Section 44 was used to search protestors outside the DSE Arms Fair at the Excel Centre in Docklands in October 2003, while being similarly used earlier in 2003 against anti-war protestors on their way to the Fairford Air Base. 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 -4o C. [9] This incident could clearly be perceived as an abuse of power, occurring for no other reason but to intimidate legitimate protestors. This contravenes powers police officers can exercise, as they can only give a pat down, remove outer clothes (e.g. jacket, hat), search bags and request someone empty their pockets. [10]



Recommendations

  1. It is essential to deal with the disproportionality in the stop and searches of a faith based community by recording the data.

  2. In allowing for stop and searches to be initiated based on a general level of suspicion/suspicious behaviour, Section 43 of the Terrorism Act is sufficiently adequate as a counter-terrorism tool, safeguarding against the disproportionality prone under Section 44 with reference to reasons mentioned. Also, when an individual is being stopped and searched, he/she should be notified under what section they are carrying out the stop and search, i.e. whether it is Section 43 or Section 44.

  3. Unfortunately neither senior police officers, nor police officers who carry out stop and search, have a clear idea concerning the basis upon which they should stop and search individuals. Likewise and at best, this confusion could only lead to an ineffective policy on stop and search, while at worst, profiling on ethnic and religious grounds rather than looking for suspicious behaviour. Police officers should be appropriately trained in that the criteria necessary for carrying out stop and searches on people needs to be made clear. Also, police must undergo more training with a specific focus on conducting stop and search and providing members of the public with the correct and required information. Simply signing a “s44” slip is wholly insufficient and inadequate.

  4. Furthermore, the attitude of the police officers conducting the stop and search has been damaging, in that they need training in using their position and power on how to conduct stop and search in a less patronising and intimidating manner. For example, in many cases when asked why they have been stopped and searched, many have reported that the police would simply say 'they have the power to do so and they do not need a reason'.

  5. Stop and search must not be used as a means to gather pointless intelligence about the level of an individual's religiosity or his political beliefs as regularly occurs. Such practices only serve to perpetuate the belief that Muslims are specifically targeted based on the level of their religiosity and political activity.

  6. Under Section 44, when requests go out to the minister for a renewal of authorisation for a designated area, part of the determining factor should be why Section 44 should be implemented as opposed to the use of Section 43. Furthermore, a report on impact analysis should be carried out on police/community relations in the area, as such relations may have deteriorated. Also, the report should look into the issue of training police officers and the disproportionality of stop and searches. Most designated areas which have been renewed should have better procedures in place.

  7. Stop and search under Section 44 should be drastically reduced to be used only in special circumstances. The implementation of Section 44 needs to be revisited, as the old powers of PACE and Section 43 are just as effective in dealing with the terrorism threat. An honest and effective process needs to take place in order to thoroughly investigate the impact of Section 44.


Footnotes:

[1] Police and Criminal Evidence Act 1984 Code A: Exercise by police officers of statutory powers of stop and search, pp8-9.
[2] Home Office, Stop & Search Action Team, Interim Guidance, 2004, p12.
[3] Ministry of Justice, Statistics on Race and the Criminal Justice System, 2006, p26
[4] Kundnani, A. Racial profiling and anti-terror stop and search Last Accessed 29.05.08
[5][  Only 1 in 400 anti-terror stop and searches leads to arrest Last accessed 29.05.08
[6] Ibid.
[7] Oral evidence by Sir John Quinton, Metropolitan Police Authority, to House of Commons Home Affairs Committee, 8 July 2004.
[8] Ministry of Justice, Statistics on Race and the Criminal Justice System, 2006, p23
[9] Kundnani, A. Racial profiling and anti-terror stop and search  Last Accessed 29.05.08
[10] link Last Accessed 29.05.08