Home Office circular 038 / 2004
Authorisations of Stop and Search Powers under Section 44 of the Terrorism Act
In October 2003, Liberty brought Judicial Review proceedings against the Metropolitan Police and the Home Secretary concerning the authorisation, confirmation and use of section 44 powers across the Metropolitan Police Area. Although the initial findings were all in favour of the defendants, the fact that section 44 authorisations were subject to judicial review highlighted the need to evaluate the process and ensure that all authorisations would stand up to similar scrutiny. A number of areas have been identified as requiring particular attention. These include:
* Detail of description of reasons for authorising use of the powers;
* Descriptions and justification of the geographical extent of powers; and
* Provision of information on the operational use of the powers and statistical returns. **
The purpose of this circular is to provide guidance on issues to be considered for standard section 44 authorisations with the purpose of ensuring forces consider as wide a range of factors as possible when making an application. The decision to issue an authorisation and the reasons for doing so remain at the discretion of the authorising officer. More general guidance is being issued separately by the Stop and Search Action Team (SSAT). This will include advice on issues which apply to all stop and search powers.
Summary of Section 44 Provisions
Authorisations made under section 44 of the Terrorism Act 2000 allow officers to stop and search vehicles and persons within vehicles (section 44(1)), and pedestrians (section 44(2)). The authorisation may be given only if the authorising officer considers it expedient for the purposes of preventing acts of terrorism. The power conferred allows an officer to search for articles of a kind which could be used in connection with terrorism, whether or not there are grounds for suspecting the presence of such articles (sections 45(1) and (2)).
Authorisations under section 44 must be given by officers of ACPO rank and include the time the authorisation was given, the time and date of expiry (no longer than 28 days from the date on which the authorisation is given), the area covered and the reasons for authorising the powers.
The Secretary of State is informed of the authorisation as soon as is practicable. Ministers then consider the authorisation and decide whether to give confirmation. Authorisations can remain lawful for up to 48 hours without Ministerial approval. If the authorisation is not confirmed within the 48 hours it ceases to have effect at the end of the period or at a time specified by the Minister. If confirmed, the authorisation remains lawful until the point of expiry identified therein.
The form attached at Annex A should be used for all future authorisations
Start Times of Authorisations.
Authorisations begin at the point they are signed, or given orally by the authorising officer. The authorisation, or written copy of an oral authorisation should state the time at which it was given by the authorising officer and no other time.
In the case of renewals, there is nothing to prevent an authorisation being given before the expiry of the previous one if this is more practicable. The authorisation would run for a maximum of 28 days from the time of renewal, not the time of expiry of the previous authorisation
Expiry Time of Authorisations
Section 46(2) of TACT states that the time and date at which an authorisation ends “must not occur after the end of the period of 28 days beginning with the day on which the authorisation is given”. Solely for the purpose of calculating a 28 day period, the day on which an authorisation is given is deemed to constitute a full day, regardless of the time it is authorised. An authorisation must therefore end no later than 23.59hrs on the 28th day.
For example: an authorisation given at 09.00hrs on 01/01/04 must end no later than 23.59hrs on 28/01/04. It cannot run until 09.00hrs on 29/01/04.
If an authorisation is for less than 28 days, the authorising officer can nominate any expiry time.
Geographic Extent of an Authorisation
If the force is using the powers in a designated area, this should be clearly defined. Examples of acceptable definitions include:
- an area within a specified radius of a particular site (eg named airport and the area within a 1 mile radius);
- a divisional area;
- the area within an identifiable boundary (eg an area bordered by named roads.)
- a specific site (eg the weighbridge at Scotch Corner)
The above are examples and other definitions are perfectly acceptable as long as they provide a clear idea of the geographical extent of the powers. A clear justification for the extent of any radius around the site is required.
If the authorising officer is applying for section 44 powers across the whole force area, then it is a matter of simply stating this. However, sufficient justification is required for using the powers so widely (see below).
Information in Support of an Authorisation
Particular attention should be paid to providing Ministers with a detailed account of the justification for authorising the powers, and information on their prospective use. This will assist the decision to confirm. Although the background to each authorisation will be dependent on circumstances, the principles that should underpin an authorisation remain the same. In essence these are:
- Heightened terrorist threat
- Target / Symbolic location
The trigger factors for the authorisation will again depend on circumstances, but might include a move to more specific intelligence or a particular event taking place at a symbolic location. Importantly the authorising officer should be clear how the use of section 44 powers will disrupt, deter or detect terrorist action.
There are a number of issues which it would be helpful to consider and address in this section.
For ease of reference, these have been divided under 5 headings:
(i) Ongoing assessment of the terrorist threat;
(ii) New information and consideration of circumstances over the period of the authorisation;
(iii) Description of and reasons for geographical extent of powers;
(iv) Details of briefing and training provided to officers using the powers, and review of security requirements;
(v) Practical implementation of powers.
(i) Ongoing general assessment of the terrorist threat
Threat assessments from International Terrorism and Dissident Irish Republican terrorism are provided by JTAC. Assessments of the threat to various aspects of the UK infrastructure (eg aviation, transport, military establishments) are also available.
As well as including details of the ongoing threat assessments, it is useful to provide some context as to how the details within that assessment that have influenced the decision to authorise section 44 powers (eg reiterated threat from international terrorists to UK interests)
Although a high state of alert may seem enough in itself to justify authorisation of powers, it is important to set out in detail the relation between the threat assessment and the decision to authorise. This will show that the authorising officer has fully considered the relevance of an assessment to the authorisation and that the details were available to the Minister when asked to confirm.
(ii) New Information and circumstances over the period of the authorisation
Information relating to recent events that the authorising force feel is relevant to their application, but has not been included in official threat assessments should also be considered.
This could include, for example:
* intelligence that terrorist activity may have increased within the area or with relevance to the area;
* Pronouncements by terrorist organisations that particular interests are targeted;
* any recent or planned arrests, police action or circumstances which highlight terrorist activity within the area or with relevance to the area.;
* any current situations within the area which there is evidence to suggest could be exploited for terrorist purposes;
* any officially recognised advice (eg ACPO Advisory Group Message).
In all cases officers should show how the use of section 44 powers are an appropriate response to such situations.
Authorising officers should also consider under this section the type of operations that the powers will be supporting, for example:
* pre-planned intelligence gathering operations;
* protective security operations (eg those surrounding political party conferences, visits of VIPs;
* ongoing anti-terrorist operations around sensitive areas or sites.
These examples are not exhaustive and the authorisation of powers in other situations where they are required for the prevention of terrorism is at the authorising officer’s discretion.
(iii) Reasons for Geographical Extent of an Authorisation
As well as identifying the geographical extent of the authorisation, the authorising officer should also outline the reasons why powers are required in a particular area. Regularly used examples include:
- Intelligence relating to the particular region/area
- Vulnerable sites (eg airports, military bases etc) - To protect the site itself, to prevent terrorist reconnaissance, to patrol sites from which an attack might be launched.
- Transport networks - to protect transport infrastructure, to disrupt terrorist movement along known routes, to gather intelligence on terrorist movements etc
- Events - to provide protective security at and around a venue (eg party conferences,)
- Proliferation of targets within the force area
- Details of operational requirements which dictate that the powers are necessary in the nominated area.
Again, these are examples and reasons for authorising section 44 powers in a particular area lie with the authorising officer.
Powers should only be authorised where they are absolutely necessary to support a forces anti-terrorism operations.
Special attention should be given to whether the powers are required across an entire force or whether a designated area, or indeed a number of designated areas, can be identified. Where powers are authorised force wide, the authorising officer should explain the reasons in detail for rejecting the option of a designated area and applying the powers more extensively.
(iv) Briefing and Training
The judgement arising from Liberty’s Judicial Review proceedings recommended that the Metropolitan Police review their training and briefing in respect of section 44 powers. In light of this, all authorising officers should give a brief outline of how officers involved in the use of the powers are instructed in the parameters of the legislation. The training should address diversity issues and it should be clear how these issues are communicated officers. This information may be static but should be included as routine and updated as necessary
Where forces provide written information to officers on the extent of section 44 powers and their proper use, this information should, where practical, be included as an annex to the authorisation. If for any reason it is not practical to do so (eg, the information is too extensive or part of a presentation which cannot be printed, such as a slide presentation), an outline as described above should be provided.
Forces should show how they tailor training for different officers engaged in the use of section 44 powers. For example, authorisations that cover designated areas and specific anti-terrorist operations may involve the deployment of officers experienced in the use of terrorism legislation. In contrast, authorisations that cover larger areas will make the powers available to officers who may not be involved in day to day anti-terrorist work. This should be reflected in the background information supporting the authorisation.
Although section 44 powers do not require reasonable suspicion, officers should expect to explain the use of the powers and why they are being used. In pre planned operations it may also be useful to provide information to the public in a leaflet.
(v) Operational use of powers
ACPO TAM has advised forces to conduct security review meetings and the use of section 44 powers should be agreed and the strategy reviewed at this forum. Statistical data on the number of section 44 stops and searches carried out during the period of the previous authorisation (if applicable), including the number of resultant arrests, and if possible charges, under the Terrorism Act 2000 or other legislation should be reviewed regularly and be provided to the Home Office. The table attached at with the form at Annex A provides a template for this information
Forces should regularly assess the community impact of the use of the powers and discuss their use with Independent Advisory Groups, the Police Authority and other significant bodies. Background details should also be given on how the powers fit into the forces overall anti-terrorism strategy on an ongoing basis and for specific operations. It provides useful contextual information to explain how officers and other resources (eg armed patrols, ANPR, road checks etc) will be deployed and the part played by section 44 powers in supporting these operations.
Forwarding Authorisations to Home Office
Before making a decision on the confirmation of an authorisation, Ministers require as much time as possible to consider the circumstances in each case. Authorisations also go through a two step scrutiny procedure at the National Joint Unit and the Home Office. It is essential that the time between an authorisation being given and the time it is received by the Minister is as short as possible.
The authorising force should inform NJU by telephone that an authorisation has been signed, and NJU should in turn inform the Home Office. Authorisations should be sent to the National Joint Unit immediately after they are given and a contact name and telephone number of the drafting officer supplied. This will enable Home Office officials to clarify any points and include these in their submission to the Minister within a reasonable time.
Short Term (under 48 hour) Authorisations
In certain circumstances, forces authorise the use of section 44 powers for fewer than 48 hours, and in these instances there is no statutory legal requirement for Ministerial confirmation.
It is important that neither the police nor the government leave themselves open to judicial challenge on the timing or appropriateness of such authorisations. There is a statutory requirement that Ministers are informed about an authorisation - regardless of its duration - as soon as is reasonably practicable after it has been given.
In the past short-term authorisations have occasionally been presented to Ministers after the operations to which they pertain have already concluded. Where a short term authorisation is:
* Part of a pre-planned operation
* Authorised in writing and
* Authorised within office hours,
a copy of the authorisation should be forwarded to NJU immediately and subsequently to the Home Office. In these circumstances, we would expect that a period of two hours constitutes a reasonably practicable amount of time for the force concerned to provide details of the authorisation to the Home Office.
In circumstances where, for whatever reason, a copy of the authorisation cannot be forwarded in time for a Minister to receive it within two hours, details of the authorisation should be conveyed to NJU by telephone immediately after authorisation is made. NJU will contact the Home Office to enable Ministers to consider the details of authorisation even if the written document cannot be provided immediately.
Where a written authorisation cannot be provided immediately and details have been provided by telephone, a written copy of the authorisation should be provided by the force as soon as possible thereafter.