Section 44 Terrorism Act Stop and search powers ruled illegal by European court

[winjer]

Good ruling, although I'm not cheering yet. I'll have to read the judgment, but unlike the USA's Fourth Amendment, or Section Eight of the Canadian Charter, the ECHR doesn't specifically ban "unreasonable search and seizure". It just has a vague, abstract "right to privacy". So there could well be wiggle-room for Labour to disregard the ruling.

Whereas the word 'unreasonable' has never been open to any ambiguity at all?

Tiresome refrain etc etc...

 

[sim667]

so can i just check this??

If i get stopped taking photos up in london, and they try to search me under section 44, they are actually not allowed to do so (a lot of photographers get search under S44).

And that will remain in place until an appeal either goes in favour of the police or not?

 

[laptop]

so can i just check this??

If i get stopped taking photos up in london, and they try to search me under section 44, they are actually not allowed to do so (a lot of photographers get search under S44).

And that will remain in place until an appeal either goes in favour of the police or not?

English law doesn't do yes/no answers

The Register has a barrister's opinion that police forces using Section should lose any case that you brought against it.

No guarantees until that case gets to the European Court of Human Rights...

 

[winjer]

The Register has a barrister's opinion that police forces using Section should lose any case that you brought against it.

That's not the way I read the barristers comment "Any force and/or officer continuing to use s44 in the way it was used in the past" is not the same as Any force continuing to use s44 at all.

 

[laptop]

That's not the way I read the barristers comment "Any force and/or officer continuing to use s44 in the way it was used in the past" is not the same as Any force continuing to use s44 at all.

That'd just make the case more complicated, if the police force argues that they were using it differently.

 

[winjer]

I know it's thinking outside the canteen, but hypothetically they could use it in some connection to terrorism.

 

[Azrael]

Whereas the word 'unreasonable' has never been open to any ambiguity at all?

Tiresome refrain etc etc...

It's not just the word unreasonable. It's coupled to requirements that the police have "reasonable belief X has committed an offence", and individual suspicion. Perfect? No. Less ambiguous than an abstract right to privacy? Yes.

 

[detective-boy]

As a matter of law, the power remains legal pending (a) the outcome of any Appeal and (b) it's repeal by the UK Parliament.

That said, any officer or force using it in the way deemed in breach of the ECHR by the Court are likely to lose any action brought, especially if the Appeal goes against it.

BUT: (a) the police have already changed how they are using it (and did so before the judgment, so there is now a different situation which no-one knows how the Court would view (though I suspect they would also view it as in breach of the ECHR).

I would most definitely NOT advise anyone to physically resist any use of the power at present (in fact, the physical resistance of any power at any time is fraught with the possibilities of problems). It would be perfectly reasonable to question it's use, to enquire of whether it is being used in way decided as being in breach of the ECHR by the Court and to register a reluctance / unwillingness to submt and to verbally keep pointing out that nothing is being done with consent and may be subject of subsequent legal action.

 

[Pickman's model]

yeh no point to get done for resisting arrest when you can get a grand or two some months down the line.

 

[laptop]

BUT: (a) the police have already changed how they are using it (and did so before the judgment, so there is now a different situation which no-one knows how the Court would view (though I suspect they would also view it as in breach of the ECHR).

The ECHR was made aware of changes - in an attempt by HM Government to influence its decision - and still found S. 44 to be contrary to the Convention.

 

[Azrael]

I would most definitely NOT advise anyone to physically resist any use of the power at present (in fact, the physical resistance of any power at any time is fraught with the possibilities of problems).

Why resist? Go along with it, get a lawyer, kerching.

 

[winjer]

If i get stopped taking photos up in london, and they try to search me under section 44, they are actually not allowed to do so (a lot of photographers get search under S44).

Liberty's legal director explains why they can still use Section 44 at length here: http://bit.ly/9BLuH2

 

[Buzz sw9]

Just show the police some ID and fuck off out of their way, the police are very busy people and don't have time to waste pissing about with your bullshit. Don't you know there are people committing crime and you are wasting our police's time with your "I know my rights,bollocks"

 

[detective-boy]

Liberty's legal director explains why they can still use Section 44 at length here: http://bit.ly/9BLuH2

So pretty much what I have been saying from the outset then ... but, hey, what the fuck would I know ...

 

[winjer]

Just show the police some ID and fuck off out of their way, the police are very busy people and don't have time to waste pissing about with your bullshit. Don't you know there are people committing crime and you are wasting our police's time with your "I know my rights,bollocks"

Have you tried http://www.move-on.org.uk/testyourskills/ILR_minitest_l/index.html ?

 

[winjer]

So pretty much what I have been saying from the outset then ... but, hey, what the fuck would I know ...

I hadn't noticed anybody disagreeing.

 

[detective-boy]

I hadn't noticed anybody disagreeing.

The post (especially as it made no reference to the link confirming anything already posted / discussed) had an air of "Oh look! Here's the answer. It's all new and shiny and has put us out of our "Don't know whether we can lawfully resist a s.44 stop and search now"-misery!" about it.

That is also the same MO as used previously by posters who question whether I actually know anything about what I post about (well, to be rather more accurate, who state that I do not).

 

[winjer]

Sometimes, it's just not all about you.

 

[winjer]

The UK government has appealed an European Court of Human Rights ruling that found, back in January, Section 44 of the Terrorism Act 2000 unlawful, BJP can reveal.

On 12 January, after judging on the Gillan and Quinton v. the United Kingdom (no. 4158/05) case, the European Court stated that the use of Section 44 to stop-and-search people is illegal and that the powers lack proper 'safeguards against abuse', finding that its use was therefore illegal

The Home Office had until 12 April to appeal the ruling, and according to the European Court of Human Rights, speaking to BJP, the appeal has been lodged last week. "On 09 April 2010 the UK Government asked the Court to refer the case to the Grand Chamber," a spokeswoman tells BJP. "It is now for the Court, in its Grand Chamber Committee of judges, to consider the Government's request and to decide on it."

http://www.bjp-online.com/public/showPage.html?page=874193

 

[winjer]

The European court of human rights has rejected an attempt by the UK government to appeal a judgment over its stop-and-search powers.

The decision means that a January 2010 court judgement which found section 44 of the Terrorism Act to be illegal is final.

http://www.politics.co.uk/news/legal-and-constitutional/govt-stop-and-search-appeal-rejected-$21381052.htm

 

[winjer]

And they're back:
http://www.homeoffice.gov.uk/public...nisterial-statement/terrorism-remedial-order/
http://www.legislation.gov.uk/uksi/2011/631/contents/made

Replacement powers to stop and search in specified locations

3.—(1) The Terrorism Act 2000 is to have effect as if before section 48 (and the italic cross-
heading before it) there were inserted—

“47A Searches in specified areas or places

(1) A senior police officer may give an authorisation under subsection (2) or (3) in relation to a specified area or place if the officer—

(a) reasonably suspects that an act of terrorism will take place; and
(b) considers that—
(i) the authorisation is necessary to prevent such an act;
(ii) the specified area or place is no greater than is necessary to prevent such an act; and
(iii) the duration of the authorisation is no longer than is necessary to prevent such an act.
​

(2) An authorisation under this subsection authorises any constable in uniform to stop a vehicle in the specified area or place and to search—

(a) the vehicle;
(b) the driver of the vehicle;
(c) a passenger in the vehicle;
(d) anything in or on the vehicle or carried by the driver or a passenger.​

(3) An authorisation under this subsection authorises any constable in uniform to stop a pedestrian in the specified area or place and to search—

(a) the pedestrian;
(b) anything carried by the pedestrian.​

(4) A constable in uniform may exercise the power conferred by an authorisation under subsection (2) or (3) only for the purpose of discovering whether there is anything which may constitute evidence that the vehicle concerned is being used for the purposes of terrorism or (as the case may be) that the person concerned is a person falling within section 40(1)(b).

(5) But the power conferred by such an authorisation may be exercised whether or not the constable reasonably suspects that there is such evidence.

(6) A constable may seize and retain anything which the constable—

(a) discovers in the course of a search under such an authorisation; and
(b) reasonably suspects may constitute evidence that the vehicle concerned is being used for the purposes of terrorism or (as the case may be) that the person concerned is a person falling within section 40(1)(b).​

(7) Schedule 6B (which makes supplementary provision about authorisations under this section) has effect.

(8) In this section—

“driver”, in relation to an aircraft, hovercraft or vessel, means the captain, pilot or other person with control of the aircraft, hovercraft or vessel or any member of its crew and, in relation to a train, includes any member of its crew;
“senior police officer” has the same meaning as in Schedule 6B (see paragraph 14(1) and (2) of that Schedule);
“specified” means specified in an authorisation.”​

(2) Schedule 1 (which provides for the Terrorism Act 2000 to have effect as if a new Schedule making supplementary provision about powers to stop and search in specified locations were inserted after Schedule 6A to that Act) has effect.

 

[GoneCoastal]

Just in time for Saturday

 

[newbie]

(1) A senior police officer may give an authorisation under subsection (2) or (3) in relation to a specified area or place if the officer—

(a) reasonably suspects that an act of terrorism will take place;

that doesn't leave a lot of wriggleroom

 

[winjer]

But it'll be stopped by all the random searching. Every time.