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Home Office circular 027 / 2008

Authorisations of stop and search powers under section 44 of the Terrorism Act 2000

  • Broad subject: Terrorism and organised crime
  • Issue date: Tue Dec 02 00:00:00 GMT 2008
  • From:
    Office for Security and Counter-Terrorism (OSCT) PREPARE
  • Linked circulars:
    No linked circulars
  • Copies sent to:
    Chief Officers of Police England, Wales and Scotland
  • Sub category: Counter-terrorism
  • Implementation date: Tue Dec 02 00:00:00 GMT 2008
  • For more info contact:
    Daniel Murray
  • Addressed to:
    Chief Officers of Police England, Wales and Scotland

Foreword

This circular has been drafted to assist the reader in understanding the authorisation process for section 44 of the Terrorism Act 2000 and replaces Home Office circular 22/2006. All future authorisations should be made in accordance with this circular. The revised annex A must be completed for all authorisations.

Introduction

Authorisations under section 44 of the Terrorism Act 2000 confer extraordinary powers of stop and search. They can be made where expedient for preventing acts of terrorism.

Although initially made by police officers of ACPO rank, they must be confirmed by the Secretary of State. In view of their importance, authorisations are subject to considerable scrutiny before being confirmed by the Secretary of State.

Forces making them should ensure they are able to provide sufficient supporting evidence and justification for the Secretary of State to base his decision on, and to stand up to legal scrutiny. A number of areas should be given particular attention.

These include:

  • Detailed description of reasons for authorising use of the powers, including an assessment of the threat and events or circumstances which are specific to the force seeking the authorisation
  • Descriptions and justification of the geographical extent of powers
  • Detailed description of the use of section 44 powers over other stop and search powers
  • Provision of information on the operational use of the powers and statistical returns
  • Details of the briefing and training provided to the officers
  • Details of community impact measures taken

The purpose of this circular is to provide guidance on issues to be considered for 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.

Further guidance is available in the 2008 NPIA Practice Advice on Stop and Search in Relation to Terrorism published in November 2008.

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 can only be given by officers of ACPO rank and must 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 geographical 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 48 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 must be used for all future authorisations

Guidance

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 must 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 concurrently 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 January 2006 must end no later than 23.59hrs on 28 January 2006. It cannot run until 09.00hrs on 28 January 2006.

If an authorisation is for less than 28 days, the authorising officer can nominate any expiry time.

Geographical 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 or borough
  • The area within an identifiable boundary (eg an area bordered by named roads.)
  •  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).

Section 30 of the Terrorism Act 2006 extends the area in which a senior officer can authorise section 44 powers to include internal waters. A clear justification for use of the powers in internal waters must be provided. Further guidance on this provision is available in the Home Office Circular 08/2006 on the 2006 Act.

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 whether 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:

  • Intelligence
  • Heightened terrorist threat
  • Target / Symbolic location

The aggravating 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 six headings:
(i) Ongoing assessment of the terrorist threat;
(ii) New information and/or circumstances over the period of the authorisation;
(iii) The use of S.44 of the Terrorism Act 2000 rather than other powers of stop and search;
(iv) Description of and reasons for geographical extent and length of time of an authorisation;
(v) Details of briefing and training provided to officers using the powers;
(vi) Practical implementation of power
(vii) Community Impact Assessment and consultation.

(i) Ongoing general assessment of the terrorist threat

Threat assessments from International Terrorism and Dissident Irish Republican terrorism are provided by JTAC and Security Service. Assessments of the threat to various aspects of the UK infrastructure respectively (eg aviation, transport, military establishments) are also available.

As well as including details of the ongoing threat assessments, it is important to provide some context as to how the details within that assessment have influenced the decision to authorise section 44 powers (eg reiterated threats from international terrorists that UK interests are a target).

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.

For more information on briefing and tasking in the use of the powers on the ground, please consult section 3 of the 2008 NPIA Practice Advice on Stop and Search in Relation to Terrorism published in November 2008.

(ii) New information and/or circumstances over the period of the authorisation

Information relating to recent events that is specific to the force seeking authorisation, but has not yet 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.
a ny 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).
 
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 only illustrative. The authorisation of powers in other situations where they are required for the prevention of terrorism is at the authorising officer's discretion.

For more information on briefing and tasking in the use of the powers on the ground, please consult section 3 of the 2008 NPIA practice advice on stop and search in relation to terrorism published in November 2008..

(iii) The use of S.44 of the Terrorism Act 2000 rather than other powers of stop and search

In all cases officers should show how the use of section 44 powers is an appropriate response to a particular situation and why powers under section 43 of the Terrorism Act 2000 or other stop and search powers are deemed insufficient.

For more information on briefing and tasking in the use of the powers on the ground, please consult section 3 of the 2008 NPIA practice advice on stop and search in relation to terrorism published in November 2008.

(iv) Description of and reasons for geographical extent and length of time of an authorisation

As well as identifying the geographical extent of the authorisation, the authorising officer should outline the reasons why the 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 can be justified on the grounds of preventing acts of terrorism.

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.

A justification for the length of time required for the authorisation should also be provided. For example, where an authorisation has been made for the maximum 28 days, it should be demonstrated how this links to the information / intelligence supporting the authorisation and why such a time period, and not a shorter one, is necessary. This also applies to instances where the powers have been authorised for a short time period. It should be demonstrated why a longer period is deemed not necessary.

For more information on briefing and tasking in the use of the powers on the ground, please consult section 3 of the 2008 NPIA Practice Advice on Stop and Search in Relation to Terrorism published in November 2008.

(v) Details of briefing and training provided to officers using the powers

All authorising officers should give a detailed 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 to 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), 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 counter-terrorism powers. 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. Briefings should also provide officers with a form of words that they can use when explaining the use of stop and search powers under the Terrorism Act 2000. Officers should be reminded at the briefing of the importance of providing the public with as much information about why the stop and search us being undertaken. The form of words provided should be included in the authorisation. In pre-planned operations it may also be useful to provide information to the public in a leaflet.

For more information on briefing and tasking in the use of the powers on the ground, please consult section 2 of the 2008 NPIA Practice Advice on Stop and Search in Relation to Terrorism published in November 2008.

(v) Practical implementation of powers

ACPO(TAM) has advised forces to conduct security review meetings and any use of section 44 powers should be agreed and the strategy reviewed at this forum. Where the force has a lead on the “Prevent” aspect of the CONTEST counter-terrorism strategy, this person must be involved in meetings to discuss the use of section 44 powers. 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 must be reviewed regularly and be provided to the Home Office. The table attached with the form at Annex A provides a template for this information.

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 should provide 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.

For more information on briefing and tasking in the use of the powers on the ground, please consult section 2 of the 2008 NPIA Practice Advice on Stop and Search in Relation to Terrorism published in November 2008.

(vi) Community impact assessment and consultation

A Community Impact Assessment (CIA) should be completed by all forces prior to a section 44 authorisation being confirmed and details of this should be provided by the authorising officer. The CIA should be reviewed continually throughout the life of the authorisation.

In making a CIA, forces should consider whether it is appropriate to consult representatives of the local community in advance of authorising the powers. If it is decided that operational reasons make consultation impractical (for example, due to an imminent terrorist attack), forces should consider consultation on the impact of the authorisation while it is in operation or after it has expired in order to minimise any adverse effects it may have on community relations. Any decision not to consult with the community should be fully explained and justified by the authorising officer.

Where appropriate, forces should discuss the use of section 44 authorisations with:

  • Independent Advisory Groups
  • the Police Authority
  • Community Safety Partnerships – in Wales
  • Crime and Disorder Reduction Partnerships – in England
  • Local Criminal Justice Boards
  • Local Strategic Partnerships
  • Neighbourhood panels.


For further advice on Community Impact Assessments and community consultation in relation to the authorisation of section 44 powers, please consult sections 1 and 3 of the 2008 NPIA Practice Advice on Stop and Search in Relation to Terrorism published in November 2008.

Forwarding authorisations to Home Office

Before deciding whether to confirm an authorisation, Ministers require as much time as possible to consider the circumstances of each case. It is therefore essential that the time between an authorisation being given and the time it is received by the Minister is as short as possible.

Authorisations go through a two step scrutiny procedure; they are firstly examined by the National Joint Unit (NJU) and secondly by Home Office officials, before being submitted to the Minister.

Once an authorisation has been given, the authorising force should inform NJU by telephone. NJU will then inform the Home Office. Authorisations should be sent to the NJU 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 legal requirement for Ministerial confirmation.

However, it is still essential that such authorisations follow this guidance. The absence of a requirement for Secretary of State authorisation does not negate the importance of the issues involved in authorising section 44 powers. There is a statutory requirement that the Secretary of State is informed about an authorisation - regardless of its duration – as soon as is reasonably practicable after it has been given.

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, a period of two hours is considered 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.

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