It's not the end for stop and search
Section 44 is dead, long live section...
Comment Fears were growing today that the latest attempts by Home Secretary Teresa May to put policing back on a more sensitive, acceptable footing may yet backfire.
In the Commons last Thursday she announced that she is ready to bring the UK back into line with Europe by revising the government's guidelines on terror stops and searches. Subsequent statements by police and the Home Office suggest that matters may be a little trickier, and that simplistic press reports that a much disliked law is now dead and buried are premature.
First up, those pesky stop-and-searches. The last government brought in two powers that it believed would aid the police in combating terrorism. The first, s43 of the Terrorism Act 2000, gave the police the right to stop and search individuals where they had "reasonable suspicion" that they were involved in terror activity or activity that could support terrorists.
Far more controversially, s44 gave police extensive powers to stop and search without suspicion in designated areas. As added provocation to the civil liberties lobby, many designated areas remained secret, on the grounds that revealing which areas were designated would itself provide terrorists with useful information as to where the state hoped they would not be operating.
The European Court of Human Rights pulled the plug back in January, declaring s44 breached the right to a private life.
The Coalition declared early on that it was unhappy with s44. On Thursday, following further legal advice, May told the Commons: "The first duty of government is to protect the public but that duty must never be used as a reason to ride roughshod over our civil liberties."
Of the European ruling, she said: "The government cannot appeal this judgement, although we would not have done so had we been able."
It therefore looks as though s44 is on its way out.
Or is it? On Wednesday, young photographer Jules Mattson, 16, was stopped, allegedly dragged through a crowd of spectators and searched under Section 43 of the Terrorism Act. His offence? Violating a supposedly "sterile area" in front of Prince Charles.
An official statement by the Met said: "If an officer witnesses what they deem to be suspicious behaviour then they are justified in carrying out a stop. In this instance the officer spoke to him about his behaviour". Note the use of s43: some, including Amateur Photographer magazine, have speculated that this was due to police nervousness over long-standing criticism of the way in which they use s44, and an ever-growing list of unpopular and expensive court cases.
However, according to a Met statement shortly after this incident: "The MPS continues to use s44 stop and search powers under the Terrorism Act 2000. s44 remains a legal power under current legislation. The current authority remains in place for it to be used at specific locations across London".
We spoke to the Met on Thursday morning and asked whether this was still the case. They confirmed it was.
Cue an imminent collision with the Home Secretary.
By late Thursday, however, the Met had backed down. On Friday morning they told us: "Following Thursday's statement by the Home Secretary [in respect of s44] ... Metropolitan Police Service will not seek to renew the current authorisation to use the power at this stage.
"The current authority expired at 23.59 hours on Thursday 8 July and Metropolitan Police officers will not use the power after this time until further notice."
So s44 is dead after all? Er, no: because the Met's first position was legally correct. It remains within the legal arsenal until it is repealed or amended by parliament and they can re-introduce it whenever they want, simply by renewing their current authorisation and re-instituting designated areas.
Not to be outdone, the Home Office bounced back on Friday. Announcing an urgent review of Counter Terrorism legislation, a spokeswoman said: "We have taken immediate steps to bring the police's use of stop and search powers fully into line with the judgment.
"Given section 43 powers in the Terrorism Act 2000, which do require reasonable suspicion, do not allow for the stopping and searching of vehicles, we will continue to use the framework of sections 44 to 47 for vehicles. This is only on the basis of there being reasonable suspicion and it being necessary to prevent terrorism."
The problem, it seems, is that s43 applies to pedestrians, but not vehicles, whereas s44 includes a power to stop and search vehicles. The Home Office statement is therefore disingenuous at best, but most likely a source for a future expensive legal muddle.
You cannot apply one part of legislation "using the framework" of another part. The courts really won't like it.
So, as of last week, the Met has already stood down s44 and those powers are no longer available to them, while the Home Secretary urged police to rely on s43 and to only employ s44 powers where they are "necessary" and not merely "expedient".
That may well be an impossible balancing act.
Observant readers may note that this is the same Mattson who had a spot of bother with police in Romford a week back in almost carbon copy circumstances.