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Home Office internal review - Terrorism Act 2000 section 44 stop and search authorisation times and locations

Despite what seem to be compelling arguments in favour of the publication of the geographical locations and the durations of the Terrorism Act 2000 section 44 stop and search without reasonable cause powers, which are not general Police powers, but which are meant to be strictly limited, the home Office has , after an Internal review, yet again rejected our FOIA request for disclosure.

Read the transcript of the snail mail letter:

Home Office
Information Rights Team
4th Floor Seacole Building (SW) 2 Marsham Street, London, SW1P 4DF
Direct Line: 020 7035 nnnn, Switchboard 020 7035 4848
E-mail name-of-civil-servant@homeofice.gsi.gov.uk


[name]
[address]

Our Ref 8348
Your Ref
Date 7 April 2008

Dear [xxxx]

When my colleague [name of a different civil servant] wrote to you on 20 February, she acknowledged receipt of your request or an internal review of the decision to withhold information you had requested about the Terrorism Act 2000. I was asked to carry out that review and confirm that I was not involved in the consideration of your initial request. I am now in a position to let you know the outcome of my review.

At the start of my review I noted that your initial request for information was received on 19 November with a target date to reply to you of 17 December. You sent an e-mail via our website on 14 December saying you had not received an acknowledgment of your request and also asking for a reply and this was responded to on 17 December. I am very sorry that you were not sent an acknowledgment of your request as is our usual practice to do so.

That is not our experience. No FOIA or EIR request we have made to the Home Office has ever been fully replied to within the statutory 20 working days laid down by the Freedom of Information Act 2000 law.

Either are deliberately discriminating against us, or the FOIA systems and training at the Home Office are still not fit for purpose.

I am also sorry that the e-mail you were sent did not specify the reasons for replying unit saying that they expected to reply to you within the next month. You should have been told by the unit considering your request that they were considering if releasing the information you asked for was or was not in the public interest and which exemptions within the Freedom of Information Act 2000 allowing us to withhold information might apply in your case. I can only apologise for this oversight and note that a reply was sent to you on 8 February. I will ensure that my findings in this regard are brought to the attention of the unit concerned.


During my review I discussed the handling of your initial request with the relevant staff and read a sample of the authorisations requested under section 44 of the Terrorism Act 2000 and those authorised by the Secretary of State under section 46 of the Act. The wording of your initial request, not unreasonably, lead the staff to believe that these authorisations were the documents you wished us to disclose as they contain the information you asked for.

There is no way for the public to know beforehand, that the minimal Authorisation, as laid down by the Statute, actually contains far more than the minimum legally required information i.e. just the geographical extent and the time period duration of the authorisation of a request by a particular Chief Constable of Commissioner of Police.

It is hardly our fault if the Authorisation documents seemingly contain sensitive national security or intelligence background information, as to the specific reasons for calling for these extraordinary powers to be applied. They could simply have disclosed these Authorisation documents and redacted or censored the sensitive intelligence background justifications.

I have carried out my review on the same basis and I have additionally considered whether it would be possible to release a list which simply specifies the location and duration of the authorisations.

The "location and duration of the authorisations" was all that we actually requested in the first place.

I have carefully considered the use of the exemptions within the Freedom of Information Act 2000 the replying unit cited, which were Sections 23, information supplied by, or related to, bodies dealing with security matters is an absolute exemption and therefore not subject to a public interest test. Having reviewed the material contained within the authorisations I am satisfied that some of It was either supplied by or related to security bodies and was properly withheld under this exemption.

It is worth repeating - our FOIA request did not ask for any such intelligence information, only for the and duration of the exceptional temporary extra legal powers being granted to the Police, to perform public stops and searches for terrorist material weapons or money etc. without reasonable suspicion

Section 44 Authorisations are not requested by Mi5 the Security Service or Mi6 the Secret Intelligence Service of by GCHQ. They are legally requested by Chief Constables or the Commissioner of the Metropolitan Police etc. The Terrorism Act 2000 Sections 44 to 46 do not require that the actual Authorisation which is to be signed by the Home Secreatry to include any strategic background intelligence. or tactical operational details whatsoever.

Section 44 authorisations only require

    "... an area or at a place specified in the authorisation"

    and

    "... the period--
    (a) beginning at the time when the authorisation is given, and
    (b) ending with a date or at a time specified in the authorisation. "

and the signatures of the requester i.e. a Chief Constable and the authorisor i.e. the Home Secretary , or their deputies.

Nothing in such a disclosure could possibly compromise any covert intelligence sources or investigations.

The information contained in the documents you asked for, whether it be the full authorisations or a list of authorisations and locations contain information relating to National Security and law enforcement. I am satisfied that it was appropriate to withhold information using sections 24 and 31 of the FoI Act. These exemptions are both subject to public interest tests and I am sorry these were not fully explained in the reply you were sent. My considerations of these two exemptions are below:


Section 24(1) National Security

Considerations in favour of disclosure

Disclosure of the information we hold may provide the public with information about the work the police and other parties carry out to protect the public from acts of terrorism. This would provide further information to the public than is already in the public domain regarding areas of the country thought to be at risk from terrorism, and therefore enable further precautions to be taken as necessary.

Considerations against disclosure of information

It is important that the police and other parties are able to mount operations to prevent acts of terrorism taking place and to protect the general public. As outlined in the initial response to your request, Section 44 authorisations include sensitive information, such as an ongoing assessment of the terrorist threat specific to the police district, which is informed by previous or ongoing national security investigations. If details of previous or current operations were released it could give terrorists knowledge of police techniques, and enable individuals or groups to identify whether their activities have come to the notice of the authorities, thereby damaging the police's ability to investigate terrorist offences. The release of information regarding areas subject to Section 44 authorisations would also inform terrorist that a particular area is subject to higher security than perhaps is normal for that area, thereby, enabling them to direct their attacks to areas where they are less likely to be apprehended.

This line of reasoning is utterly wrong.

Section 44 authorisations deal withpublic stops and searches carried out overtly in full view of any observers. These powers only apply to vehicles or pedestrians i.e. on public streets, and (following the amendments brought in by the Terrorism Act 2006) also to public airports and harbours, but not to private premises. They are surely intended to act as some sort of deterrent, which they cannot do properly if they are kept secret.

Despite the tens of thousands of Section 44 stops and searches, there has never been a single terrorist attack in progress, which was detected, let alone one where the terrorists were caught red handed by means of a Section 44 random stop and search without reasonable suspicion, and it is extremely unlikely that there ever will be one.

If there is an active investigation of terrorist suspects, then there are plenty of existing Police powers to stop and search people, backed up by the use of deadly force if necessary, but that implies that there is some sort of reasonable suspicion, which renders Section 44 powers unnecessary.

Just because a geographical area is declared to be subject to a Section 44 Authoristion, that bears no relation whatsoever to the Police resources physically deployed at any particular point, at any particular time, within that area. The Section 44 Authorised areas which have been revealed by Labour politicians in the public domain include the whole of London within the M25 (John Denham, former Home Office Minister and then Chairman of the Home Affairs Select Committee ) and Gatwick Airport (Tony McNulty, Home Office Minister of State - Security, Counter-terrorism, Crime and Policing).

As we pointed out in our previous correspondence, less Police time would be wasted at such Section 44 checkpoints, if normal, law abiding members of the public were aware of their geographical location and durations, they could avoid transporting potentially suspicious, but actually innocent items, such as, paint ball guns or agricultural fertiliser etc.

As the Ministerial Statement by Tony McNulty on 12th December 2007 makes clear, there have been at least two cases at Gatwick Airport, and potentially many others, where the Authorisation paperwork has not been done properly, leading to the risk that anybody who was actually detected carrying terrorist material, by an illegal Section 44 stop and search, would walk free in Court as a result. Publication of the Authorisations would virtually eliminate this risk

There have been cases where jumped up private sector security guards or even Police Community Support Officers, have pretended to have powers under Section 44 which they do not legally possess (or where they have been genuinely confused by the complexity of the vast array of legislation). Greater public awareness of where and when such temporary extraordinary Section 44 Authorisations actually apply, would help to prevent illegal abuses of power.

Evaluation of arguments in favour and against disclosure

If the information was released to you it would equate to being put in the public domain

There is a presumption of full disclosure under the Freedom of Information Act - that is the law.

and would therefore be available to anyone who wanted to harm the public through acts of terrorism.

It would also be available to members of the public seeking to assist the Police and intelligence agencies in protecting themselves and the general public from terrorist attacks, through greater vigilance and by releasing Police resources at temporary Section 44 stop and search checkpoints, by not wasting their time by carrying or transporting potentially suspicious items, thereby potentially allowing real terrorists past the checkpoint scot free.

Section 31 Law Enforcement
a) The prevention or detection of crime
b) The apprehension or prosecution of offenders
c) The administration of justice

Considerations in favour of disclosure

The public has a legitimate expectation that the police and others will take all reasonable steps to prevent terrorists from