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You are here: BAILII >> Databases >> United Kingdom Journals >> Prevention of Terrorism (Additional Powers) Act 1996. URL: http://www.bailii.org/uk/other/journals/WebJCLI/1996/issue4/reid4.html Cite as: Prevention of Terrorism (Additional Powers) Act 1996 |
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[1996] 4 Web JCLI">
Copyright © 1996 Kiron Reid.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.
*Thanks to Philip Jones in the office of Simon Hughes MP, and to Paul Simpson for help in obtaining sources.
In the House of Commons, the Home Secretary denied claims that the police had been lobbying for the new powers before the end of the cease-fire (see the responses to Alan Beith, Simon Hughes, Andrew Mackinlay and Kevin McNamara, HC Deb vol 275, cols 198-200, April 2, 1996). However, newspaper reports appear to suggest that the Home Secretary's answer was incorrect. The Observer, 7 April 1996, reported that the Association of Chief Police Officers had been requesting such powers since 1992 (at p 15). This has since been confirmed by the Commissioner of the City of London Police, William Taylor. Speaking at the Annual Conference of the Howard League for Penal Reform, on 11 September, Mr Taylor (speaking of the new power to search pedestrians) stated, "We had tried to get that power in the original Act but that had not been supported." A longer debate in Parliament may have allowed the truth of the matter to emerge. A similar picture emerges from the passage of the original Prevention of Terrorism Act in 1974. The then Labour Home Secretary, Roy Jenkins, revealed in his autobiography that the original legislation was actually envisaged, and partly prepared by civil servants, some time in advance of its actual implementation following the Birmingham pub bombings (Jenkins 1991, pp 393- 7).
The timing of the introduction of these new powers is particularly curious, given that additional anti- terrorist stop and search measures had been included in the Criminal Justice and Public Order Act 1994 (less than a year and a half earlier), and that the Prevention of Terrorism Act had been renewed itself only three weeks earlier. Therefore the most plausible explanation for the timing of the new powers is that suggesting party political motivation. The Government was able to try and embarrass the leadership of the Labour Party twice in three weeks by providing two opportunities for backbenchers to rebel against their party leadership’s new policy of abstaining on these measures (The Parliamentary Labour Party had previously opposed the renewal of the Prevention of Terrorism legislation). To adopt the reasoning of Owen Lomas when considering earlier legislation (the Prevention of Violence Act 1939), "a criticism of the executive's approach to... legislation" - is "the absence of any consideration of the intrinsic value of...civil liberties." (Lomas 1980, p 22).
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"(a) to stop any vehicle;(b) to search any vehicle, its driver or any passenger for articles of a kind which could be used for a purpose connected with the commission, preparation or instigation of acts of terrorism...;
(c) to stop any pedestrian and search any thing carried by him for articles of a kind which could be used for a purpose connected with the commission, preparation or instigation of acts of terrorism."
This power could be exercised in the complete absence of any reasonable grounds for suspicion. Previously the police would have had available only the power under the Police and Criminal Evidence Act 1984 (PACE) s 1 to stop and search for stolen or prohibited articles, or the power to establish road checks under s 4, which had to relate either to a specific criminal offence, or to a person unlawfully at large. Both required reasonable grounds for suspicion. Otherwise the police would have had to resort to their power of arrest under s 14 of the Prevention of Terrorism (Temporary Provisions) Act 1989 which required, for example, reasonable grounds for suspecting a person to be guilty of an offence (14(1)(a)), or concerned in the commission, preparation or instigation of an act of terrorism (14(1)(b)), or the supplementary power of search under s 15(3) which still required reasonable suspicion (for the suggested limitations of which, and concerns over the deficiencies of these provisions see Walker 1992, p 195). Under the original s 13A (in the Metropolitan police areas, and excluding Heathrow airport) 1,746 vehicles have been stopped, and there have been 1,695 searches of vehicles and 2,373 searches of occupants since the Criminal Justice and Public Order Act 1994. This has lead to only two arrests under the PTA but 66 other arrests (HC Deb vol 275, col 210, April 2, 1996). Despite repeated requests on both 1 May and 2 May, the Home Secretary failed to provide appropriate figures for Northern Ireland. Seamus Mallon (SDLP MP for Newry and South Armagh)(as well as some Labour MPs who voted against the measures) expressed particular concern that stop and search powers would be used in a discriminatory fashion against young people (HC Deb vol 275, col 273, April 2, 1996).
Section 1 of the new Act repeals subsection (3)(c) above, and inserts a new s 13B after s 13A. Section 13B extends the previous power to allow the person to be searched, as well as anything carried by him or her. This extension is aimed particularly at searching for incendiary devices (Sir Michael Shersby, Michael Howard, HC Deb vol 275, col 41, April 1, 1996). The new power to search pedestrians has to be authorised separately from the power contained in 13A, but authorisation can be given orally (13B(7)) and then must be confirmed in writing as soon as reasonably practicable. There are two safeguards in the new section. First, the Secretary of State must be informed as soon as reasonably practicable, may cancel the authorisation or curtail the length of time for which it applies, and must in any event confirm it within 48 hours (13B(8)-(9)). Second, the extent of a search in public by a constable is limited (13B(4)). A constable may only require a person to remove in public his "headgear, footwear, outer coat, jacket or gloves." This limitation is additionally inserted into s 13A for the first time - a useful revision. This brings this power of search more closely into line with the limitations contained in PACE s 2(9), although marginally wider in permitting the removal of headgear and footwear (Kevin McNamara observed that the former could create problems in relations with the Sikh community, HC Deb vol 275, col 169, April 2, 1996. The Act is not limited to Irish terrorism). It is presumed that s 13A applies to bicycles, (see Garner v Burr [1951] 1 KB 31, DC, at 33, per Lord Goddard CJ), although the section does refer to the 'driver' of the vehicle.
Despite the absence of any requirement of reasonable grounds, the power must presumably only be used by a constable for bona fide anti-terrorist purposes. If abuses such as those under the old 'sus laws' become apparent, for example use of the stop and search powers in a racially prejudiced way, then this practice could be the subject of an action for judicial review, or of a civil action against the police for false imprisonment. The existing powers and new power are subject to the PACE Code of Practice on stopping and searching, Code A, which should mitigate against abuse (The City of London Police Commissioner has suggested (above) that stops under the original s 13A have been accepted precisely because they are random - as this has removed any stigma being attached to a stop). A pedestrian (or the driver of a vehicle) stopped has the right to obtain a written statement that he (or the vehicle) was stopped under the above section if he applies for one within twelve months (ss 13A(9) and 13B(10)). There must presumably be a corresponding duty on the constable to thus make a record of the search. However, it is not explicitly stated that the constable must inform the subject of this right - unlike the requirement to make this clear for the exercise of the stop and search powers under PACE (see ss 2 and 3). Even with records of searches, though, it may be difficult to exercise any effective scrutiny over the use of discretion by the individual constable. On the other hand, there is an additional safeguard in that the consent of the Director of Public Prosecutions is required for a prosecution for an offence under 13B (failing to stop when required to do so, or wilfully obstructing a constable in the exercise of these powers).
The recent bomb that partially exploded under Hammersmith Bridge, on 24 April, may be claimed by the Provisional IRA as a victory over these new measures. On the other hand, the Government may be able to point to the success of their counter-terrorist strategy. Political concern focused on another high profile attack in the City of London, or Docklands, and it is in the City that the new powers were straight away brought into effect by the police. The Home Secretary noted that the existing powers under s 13A have been invoked only in the City and in the Metropolitan police district after the explosion at South Quay in February (for more than one period of 28 days in the City, and for 7-10 days, on more than one occasion, in the Metropolitan police district, HC Deb vol 275 col 36 April 1, 1996). The fact that the terrorists had to move their attention to West London, for the anniversary of the Easter Rising, possibly with more risk of civilian casualties (damaging public relations), may be claimed as showing that the new powers are working.
However, there are many comparisons with previous legal measures (apart from the figures for s 13A, above), that suggest that the increased powers will be of only limited efficacy. One example is the notorious Metropolitan Police Special Patrol Group operation, 'SWAMP '81'. Despite being a planned crackdown on street robberies, this use of arbitrary roadblocks and stopping and searching led to 943 stops, 118 arrests, and 75 charges - but only one of the charges was for robbery (Scarman 1981, p 57). Post-PACE the situation does not appear to have greatly improved. Walker and Starmer suggest that stop and search powers are not an effective use of police resources (Walker and Starmer 1994, p 32-3):
"If supervision cannot be secured, the radical alternative is the abolition of most stop and search powers. After all, most police forces existed without them before 1986, and the charging rate under PACE (which has never exceeded 17 per cent, compared to about 70 per cent charging or cautioning following arrest) suggests that excessive police resources are being diverted into this exercise to no good purpose."
A similar point, though less damning, can be made in relation to police roadblocks (s 3 of PACE). Uglow notes that:
"Between 1986-90 the police mounted 1,545 road blocks, detaining several hundred thousand people. This produced 331 arrests, 158 (48 per cent) of which were unconnected with the reasons for setting up the road block." (Uglow 1995, p 76.)
Furthermore, the exercise of specific anti-terrorism powers has been equally unsuccessful. Of the 7,202 people detained under the Prevention of Terrorism Acts between 1974 and 1990, only 652 were charged after detention (Walker 1992, Table 6, p 176. See further, Hillyard 1993). However, supporters of clause 1 emphasised the deterrent effect of anti-terrorist measures, which they suggested was far more valuable than shown by bare figures for arrests and charges. Also, the harm caused by terrorist atrocities is so great that it could be argued that the interference with liberty is justified by the fact that 10 per cent of those detained are subsequently charged. And it may be argued that improving intelligence, with the increased co-operation between MI5 and the police, will lead to more effective use of these new powers.
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"a person who is made to believe that he is obliged to remain when stopped on the street...by the police for the purpose of being questioned, searched or subjected to a test in the administration of the criminal law should be protected by Article 5." (Harris et al 1995, p 100.)
There is no general power of preventive detention under the second limb of Article 5(1)(c) (Lawless, 1 July 1961, Series A, no 3). However, even if any infringement of Article 5 was inherent in the extension of the stop and search powers, this would certainly be permitted by a derogation under Article 15, which allows derogation in "time of war or other public emergency." (See generally Harris 1995, chap 16.) Freedom of movement itself is protected by Article 2 of the Fourth Protocol, which has not been ratified by the United Kingdom. Derogation would presumably be permitted, though, under the proviso in Article 2(3) permitting restrictions "in the interests of national security or public safety."
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"The new power would enable the police to respond to intelligence that, for example, a bomb was stored in a lock-up garage or lorry park in a particular area." (Michael Howard, HC Deb vol 275 col 36 April 1, 1996.)
Paragraph 2 of the Schedule provides the police in terrorist investigations with a very similar power of search to that under PACE s 8 (See generally Feldman 1993, chap 9). Under the latter a justice of the peace may grant a search warrant, on application by a constable, if satisfied that a serious arrestable offence has been committed and various other conditions are satisfied as to the impracticability of obtaining access to the material with consent. The key difference with the former is that the justice of the peace must be satisfied that there are reasonable grounds for believing that material on the premises will be of substantial value to the terrorist investigation. In both these provisions "reasonable grounds for believing" are required - a more stringent requirement than the "reasonable grounds for suspicion" found frequently elsewhere in PACE.
The new paragraph 2A inserts a separate power, relating only to search of non-residential premises, which requires an application by an officer of the rank of superintendent or above. The other requirements (above) are absent, but the authorisation has to be requested by a more senior officer, and the warrant must be executed within 24 hours, a safeguard not present in the other provisions mentioned. However, as in paragraph 2, a superintendent may authorise a search in cases of great emergency (paragraph 7), and this applies also to searches for material that would under PACE be categorised as excluded or special procedure material (for example personal records or journalistic material). Under PACE (and in normal anti-terrorist investigations) more onerous conditions apply for obtaining a search warrant for access to the latter kinds of material.
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"(1) For the purpose of determining whether they are or have been involved in the commission, preparation or instigation of acts of terrorism..., an examining officer may search any goods which have arrived in or are about to leave Great Britain or Northern Ireland."
This gives a new and perhaps sensible power to search unaccompanied baggage and goods. It is the only one of the new powers that is not already available in Northern Ireland, and is thus applied to the whole of the United Kingdom and not only to Great Britain. However, it is far too broadly phrased in one or two important respects. Anything found during the search can be detained for up to seven days for examination (s 4A(6)) and if the person carrying out the search "is of the opinion that it may be needed for use as evidence in criminal proceedings he may detain it until he is satisfied that it will not be so needed" (s 4A(7)). There is nothing in the section to limit the application of the power to anti-terrorist criminal proceedings (what is the position, for example, if illegal drugs are found?), and there is nothing to impose any obligation to examine the goods expeditiously or, for instance, as soon as reasonably practicable. Unless these limitations can be implied, the provision should be amended certainly to include the latter. As to the former, the legislation will need to be carefully monitored to see if any abuses of the power become apparent. And a requirement of "reasonable belief" should replace mere "opinion" - otherwise, at present, as in relation to the power to stop and search, the only possible legal challenge would appear to be on the basis that the examining officer was not acting in good faith. The attitude of the Home Secretary does not bode well in alleviating concerns over the normalisation of special powers (see below), given this regrettable exchange in the House of Commons (HC Deb vol 275, col 39, April 1, 1996):
Mr Michael Jopling:
"Will he give an undertaking that if, in the use of these new
powers, drugs, stolen property, offensive weapons or other smuggled materials are discovered
that are nothing to do with terrorism, those discoveries will be followed by prosecutions where
that is possible?"
Mr Howard: "I can indeed give my right hon. Friend the undertaking that he seeks."
If such widespread, and potentially general, powers are to be given to the police it is submitted they should be conferred explicitly rather than implicitly.
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A superintendent, or lower ranking officer if a matter of great urgency, may authorise a cordon. An oral authorisation must be confirmed in writing as soon as reasonably practicable, and an authorisation by a constable must be either confirmed or cancelled by a superintendent (Schedule 6A). The period for which a cordon is in force must not exceed 14 days. By Schedule 6A the police are given very wide powers to order individuals to leave and to move vehicles, and a constable may remove or move any vehicle. Presumably they may use reasonable force to do this, but the Schedule is silent on the matter of compensation if damage is caused. The only remedy would appear to be an ordinary action for negligence, if any duty of care is owed, or possibly an action for trespass to goods.(1) Paragraph 7 of Schedule 6A provides for very widespread powers of search of premises, and persons found on those premises, within cordoned areas, similar to those outlined above in ss 2A and 13B.
In contrast to a police cordon, which can be imposed if "expedient to do so in connection with an investigation into the commission, preparation or instigation of an act of terrorism" (for example to search for a bomb or forensic evidence), the parking prohibitions and restrictions can only be authorised "in order to prevent acts of terrorism" (such as a car bomb attack on a Government building or royal residence: HC Deb vol 275, col 37, April 1, 1996) and can only be authorised by a Commander of the Metropolitan Police, or assistant chief constable outside of London.(2) Under 16D(7) a person is guilty of an offence "if he leaves a vehicle, or permits a vehicle to remain at rest, on a road" in contravention of a prohibition or restriction imposed. Presumably mens rea is required for this offence, so that a person would not be guilty if he did not know of the restriction or prohibition (Gammon (Hong Kong) Ltd v A-G of Hong Kong [1985] AC 1, PC). Alternatively, this may be covered by the defence of reasonable excuse contained in subsection (8). Also the consent of the DPP is required for a prosecution for any breach of s 16D or Schedule 6A.
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Further, the use of special powers may be described as 'excessive' in two senses: excessive in the sense that special powers are invoked when 'normal' powers would suffice to deal with a particular aspect of the emergency; and excessive in the sense that special powers are applied to 'normal' situations which are not part of the emergency (see Hillyard 1987).(3) Part of the problem again arises from the shortcomings of panic legislation passed at the time of the emergency, which is likely to be badly structured and inadequately based on clear principles (HL Deb vol 571, col 336-7, and col 338, April 3, 1996, for the examples given by Lord Annan, and Lord McIntosh of Haringey respectively). Similar observations may be made in relation to legislation passed by a Government in order "to be seen" to be doing something about a matter of concern. (For one example see Walker and Reid, 1993). By contrast, in the United States, anti-terrorism legislation in response to the Oklahoma City bomb has just been passed a year later (Antiterrorism Act 1996) - although President Clinton was highly critical of the length of time taken by Congress to pass the legislation as proposed. (Electronic Telegraph 16 April 1996; Statement by the President, April 24, 1996).
In its Final Report on Emergencies (NZLC 1991) the New Zealand Law Commission recommended that when emergency powers are required they should be conferred in "sectoral legislation" - legislation deliberated upon and designed in advance of an emergency and tailored strictly to the needs of each particular kind of emergency (NZLC 1991, p x). This approach was felt to be preferable to last-minute emergency legislation (NZLC 1991, para 4.12):
"The choice will be between legislation carefully prepared in advance, conforming to the principles and safeguards...and hastily drafted legislation conferring wider powers than are necessary and omitting appropriate protections against abuse. Moreover, New Zealand and overseas experience suggests that emergency legislation passed in haste is likely to remain on the statute book long after its immediate purpose has been served."
This call has been echoed in Britain by academic and other commentators such as Greer (1983) and Evelegh (1978). With the ending of the IRA cease-fire, it may now have been too late to prevent the enactment of hurried counter-measures to terrorism, but the lesson still needs to be learnt for the future that consideration of the issues in advance gives time for proper scrutiny. Lord Lloyd’s current Inquiry into Legislation Against Terrorism is one place to begin the work. (For an analysis of the current position, see Walker, 1996). Although that Inquiry, by Lord Lloyd and Sir Brian Kerr, was established by the Government in January 1996 "to consider the future need for specific counter-terrorism legislation" on the basis of a continuing Provisional IRA cease-fire, review of the new powers is still certainly within its remit.
Evelegh, R (1978) Peacekeeping in a Democratic Society (London: Hurst).
Electronic Telegraph (1996) Issue 363, 16 April 1996.
Feldman, D (1993) Civil Liberties and Human Rights in England and Wales (Oxford: OUP).
Greer, S (1983) 'Military Intervention in Civil Disturbances' [1983] Public Law 573.
Harris, D, O’Boyle, M and Warbrick, C (1995) Law of the European Convention on Human Rights (London: Butterworths).
Hillyard, P (1987) 'The Normalisation of Special Powers' in Scraton, P (ed) Law, Order and the Authoritarian State (Milton Keynes: Open University Press).
Hillyard, P (1993) Suspect Community, (London: Pluto Press).
Jenkins, R (1991) A Life at the Centre (London: Macmillan).
Lomas, O (1980) 'The Executive and the Anti-Terrorist Legislation of 1939' [1980] Public Law 16.
New Zealand Law Commission Report No 22 (1991), Final Report on Emergencies, (Wellington, New Zealand).
Reid, K and Walker, C 'Military Aid in Civil Emergencies: Lessons from New Zealand' (forthcoming).
Scarman, L (1981) The Brixton Disorders 10-12 April 1981: Report of an Inquiry by the Rt Hon Lord Scarman OBE (London: HMSO) Cmnd. 8427.
Uglow, S (1995) Criminal Justice (London: Sweet & Maxwell).
Walker, C (1992) The Prevention of Terrorism in British Law, 2nd ed (Manchester: Manchester University Press).
Walker, C (1996) 'Anti-terrorism laws for the future' 146 New Law Journal 586.
Walker, C and Reid, K (1993) 'The Offence of Directing Terrorist Organisations' [1993] Criminal Law Review 669.
Walker, C and Starmer, K (1994) (eds) Justice in Error (London: Blackstone).
Footnotes
(1) On the reluctance of the courts to accept a duty of care in such circumstances, see Hill v Chief Constable of West Yorkshire [1988] 2 All ER 238, HL, cf Swinney v Chief Constable of Northumbria Police, (1996) The Times, 29 March, and Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985, which show that, despite public policy objections, a duty of care may be found on the facts of a particular case. Back to text.
(2) In the House of Lords, Baroness Blatch gave the further examples of financial centres and major transport facilities, as potential targets: HL Deb vol 571, col 293, April 3, 1996. Back to text.
(3) An example of the latter might be that, as well as the anti-terrorist stop and search powers, the Criminal Justice and Public Order Act 1994 also contained a new power to stop and search in anticipation of violence (s 60), which is very similar to the anti-terrorist measures in that it is of temporary duration, in a specified area, and no grounds are required. This provision is aimed at countering specific anticipation of violence, for instance at the time of football matches, but is widely phrased. Home Office Minister of State, David Maclean, explained that the Government "was persuaded that the need to meet the tests of reasonable suspicion seriously inhibits effective preventive action by the police when they believe that violence is likely to break out". HC Deb vol 241, col 69, April 12, 1994. See further Bailey et al, 1995. Back to text.
