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The search could be for any item on the person, carried by the person or in the vehicle, and there was no need for the police officer to suspect that person of anything.

An area could be designated as one where people and vehicles can be stopped and searched at any time, by an assistant chief constable (or someone of similar rank or above) and the Home Secretary must confirm the authorisation. The authorisation could be made at any time that the person making it ‘considers it expedient’ for the prevention of acts of terrorism, could last up to 28 days and could be renewed. 

The powers under section 44 were so broadly drawn that authorisations allowing for stop and search have been made on a rolling basis since they were first introduced in 2001. For example, for almost 10 years all of Greater London was designated as an area in which anyone can be stopped and searched without suspicion. 

As a result of this we have seen section 44 powers being used against peaceful protestors on a regular basis. The statistics show that if you’re Black or Asian you are between five and seven times more likely to be stopped under section 44 than if you’re White. Yet of the many thousands of people stopped under this power, no-one has been subsequently convicted of a terrorism offence.

In early 2010 Liberty won a landmark legal case before the European Court of Human Rights, which ruled that section 44 was unlawful. In Gillan and Quinton v UK, the Court ruled that section 44 violates the right to respect for private life because the power is so broad it fails to provide safeguards against abuse. 

Section 44 and the Counter Terror Review

In July 2010 the Government announced that it was suspending the police’s power to stop and search an individual without suspicion under section 44. The power is now under review as part of the Government’s wide-ranging counter-terrorism review. Liberty submitted a detailed response on section 44, calling for its repeal. Read our response (PDF)

The Home Secretary’s roll-back of section 44 powers has been confirmed in the Government’s Review of Counter-Terrorism and Security Powers. The Review recognised that change was needed in this area to comply with the Gillan and Quinton judgment, and that the broad framework of the legislative provision has lead to valid concerns about misuse. Accordingly the Review recommended that section 44 be repealed. It has, however, also recommended that there be provision for the power to be used

• in exceptional emergencies, but
• only where a senior police officer who reasonably suspects an act of terrorism will take place authorises its use in circumstances where the powers are considered necessary (rather than the current requirement that the powers be ‘expedient’) to prevent such an act.

It is recommended that an emergency authorisation

• last for a maximum 14 days, and
• be tightly limited in both time and geographic area.

Further, any request for the use of the temporary powers ought to set out why the powers are necessary and on what bases they can be justified. Finally, where an authorisation is in place the search should only be conducted for the purpose of looking for evidence that the person being searched is a terrorist or the vehicle is being used or may be used for terrorist purposes. 

The Protection of Freedoms Bill

Use our Bill Tracker tool to follow the progress of the Protection of Freedoms Bill which contains many proposed changes to current counter terrorism laws, including section 44.