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Policing Terrorist Risk: Stop and Search Under the Terrorism Act 2000, Section 44

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Policing Terrorist Risk: Stop and Search Under the Terrorism Act 2000, Section 44 POLICING TERRORIST RISK: STOP AND SEARCH UNDER THE TERRORISM ACT 2000, SECTION 44 Genevieve Lennon Submitted in accordance with the requirements for the degree of Doctor of Philosophy The University of Leeds School of Law June 2011 The candidate confirms that the work submitted is her own and that appropriate credit has been given where reference has been made to the work of others. This copy has been supplied on the undcrstanding that it is copyright material and that no quotation from the thesis may be published without proper acknowledgmcnt. © 2011 Acknowledgments I would like to sincerely thank the interview participants, without whom this thesis would not have been possible. I would like to thank the British Transport Police and Metropolitan Police Service for the access they granted me, both to police officers and data. I would also like to thank Lord Carlile and Mike Franklin of the IPCC for their informative discussion during the interviews. Unfortunately the requirements of anonymity mean that I cannot thank each interviewee individually. I wish to express my deep and sincere gratitude to my supervisor Prof Clive Walker. His encyclopaedic knowledge of the law, criticism, guidance and support were invaluable and continue to strongly influence my work and research interests. His suggestion of good punk radio stations helped provide a working soundtrack to many of these chapters. I am deeply grateful to my supervisor Mr Nick Taylor for his detailed and constructive comments and his support throughout this work. I wish to sincerely thank Brian Lennon and Daniel Carr for kindly agreeing to proof-read this thesis. I wish to thank my family, Deirdre, John, Anne Marie, Marie Claire, Fionn, lliss and Ludwig, without whose emotional and financial support this thesis would not been possible. Finally, I would like to thank Luc for his unswerving support and for assuring me all the while that I would finish one day. ii Abstract This thesis examines the role, use and impact of stop and search under the Terrorism Act 2000, section 44 by combining doctrinal and empirical methods, drawing upon close legal analysis of the relevant legislation, jurisprudence and secondary sources intertwined with data from forty-two semi-structured interviews, carried out with police officers, community representatives and stakeholders. Section 44 is judged against the framework principles of accountability, adherence to human rights and to the Government's self-set goals as sct in CONTEST.! Section 44 is depicted as a vital tool to disrupt and prevent acts of terrorism, as evidenced by its widespread use - there were 197,008 section 44 stops carried out in 2008/09.2 Concerns have, however, been voiced since its inception that section 44 is being over-used and that it is being used inconsistently. Alongside issues raised around its deployment, the legality of the power, in terms of adherence to the ECHR, has been questioned. In January 2010 the European Court of Human Rights ruled that the routine use of section 44 violates the right to privacy under Article 8.3 This thesis first sets out the theoretical framework, research questions and methodology. It then considers the historical development of the power to stop and search, in terms of 'normal' and 'counter-terrorist' policing, identifying trends that highlight areas of perennial concern in relation to stop and search. The focus then turns to section 44 itself. The two stage authorisation process is examined by reference to the primary legislative sources and data from the fieldwork and critiqued against the framework principles before recommendations are proposed for ways in which the power could be modified so that it adheres to the principles. The deployment of the power is then detailed and critiqued before recommendations for improving its adherence to the framework principles are suggested. The final substantive chapter looks at the impact of section 44 upon communities and groups. This draws upon secondary literature and statistics as well as the fieldwork data. The chapter concludes by highlighting the weaknesses in the current system and recommending changes. The final chapter concludes by summarising the findings in relation to each research question and assessing whether the new power under TACT section 47 A, implemented recently by the Government as an alternative to section 44, addresses the various concerns that section 44 raised. I Home Office, CONTEST: the United Kingdom's Strategy for Countering International Terrorism (Cm 7547,2009). 2 Ministry of Justice 'Statistics on Race and the Criminal Justice System - 2008/09' (Ministry of Justice, London 2010) table 3.06a. 3 Gillan v United Kingdom (2010) 50 EHRR 45 app.no.4158/05. iii Contents Acknowledgments ..................................................................................................................... i Abstract .................................................................................................................................... ii Index of tables .......................................................................................................................... x Index of figures ....................................................................................................................... xi Table of cases ......................................................................................................................... xii United Kingdom ................................................................................................................ xii European Court of Human Rights .................................................................................... xiv Canada .............................................................................................................................. xvi Republic of Ireland ........................................................................................................... xvi United States of America .................................................................................................. xvi United Nations Committee on Human Rights .................................................................. xvi Table of legislation .............................................................................................................. xvii United Kingdom .............................................................................................................. xvii Statutory Instruments ........................................................................................................ xix Republic of Ireland ............................................................................................................ xx United States of America ................................................................................................... xx International treaties and conventions ............................................................................... xx UN General Assembly Resolutions .................................................................................. xxi UN Security Council Resolutions ..................................................................................... xxi European Legislation ....................................................................................................... xxii Abbreviations ...................................................................................................................... xxiii Chapter 1) Introduction ...................................................................................................... 1 1.1) Central thesis ............................................................................................................ 3 1.1.1) Human rights .................................................................................................... 3 1.1.2) Accountability .................................................................................................. 6 IV 1.1.3) CONTEST ........................................................................................................ 7 1.2) Originality ................................................................................................................ 8 1.3) 'Terrorism' ............................................................................................................... 8 1.3.1) International obligations .................................................................................. 9 1.3.2) Defining terrorism .......................................................................................... 14 1.3.3) The 'new terrorism' ....................................................................................... 22 1.4) Research questions and chapter outline ................................................................. 34 1.5) Conclusion ............................................................................................................. 35 Chapter 2) Methodology .................................................................................................. 36 2.1) General methodology ............................................................................................. 36 2.2) Doctrinal methods .................................................................................................. 36 2.3) Empirical methods ................................................................................................. 37 2.4) Sampling criteria ...................................................................................................
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