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Article Excerpt
[The embedded nature of the terrorist risk appears to demand the treatment of one's neighbour as potentially both friend and foe. One of the consequences is the application of 'all-risks' policing measures, such as stop and search powers. But can this wide casting of the intelligence web or the application of policing powers both enhance security and keep the faith with constitutional values? In this article, all-risks policing of terrorism will be considered by reference to the stop and search powers under s 44 of the Terrorism Act 2000 (UK) c 11. Since reasonable suspicion does not found policing action, it is important to examine the consequent patterns of usage and the forms of governance over them. This article will explore the nature and usage of the special stop and search powers since the), are key to an understanding of how 'neighbour' terrorism is now being addressed.]
CONTENTS I 'Neighbour' Terrorism II 'All-Risks' Policing Powers III 'All-Risks' Policing through Stop and Search Powers A Statutory Provisions B Statistics as to Usage IV The Containment of 'All-Risks' Policing A Case Law B Other Aspects of Containment V Conclusion
I 'NEIGHBOUR' TERRORISM
According to Sun Tzu's The Art of War:
If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle. (1)
The old sage, Sun Tzu, had in mind that one's enemy would be an outsider--schooled in other cultures and ways of thinking. Overcoming the cognitive gaps would be advantageous to refining one's own strategies and tactics. Notably, these arts of war were propounded before globalisation. In olden times, anyone not fitting a stereotype--be it national, ethnic, racial or cultural--could be marked out as a potential foe. But with porous borders, it is much more difficult to answer the question: who is my neighbour and who is my enemy?
Applying these considerations to contemporary terrorism, an archetypal outsider is embodied by the convenient figure of Osama bin Laden--depicted as an alien, uncivilised cave-dweller. (2) Yet, whilst foreigners remain a threat, the menacing figures in the contemporary stage of terrorism are often our neighbours from within. For example, the London bombings of 7 July 2005 were carried out by three second-generation British citizens whose parents were of Pakistani origin and an individual who had been residing in Britain almost since birth. (3) The attempted bombings in London on 21 July 2005 were likewise perpetrated by long-term residents. (4) The 'neighbour' bombers of the 2005 London bombings and 2006 transatlantic aircraft plot (5) were not isolated aberrations, since it is known that British citizens have engaged in terrorism not only on their own soil but also on foreign soil, disregarding whether they killed neighbours or aliens. Examples include Richard Reid, who attempted to explode a shoe bomb on a transatlantic flight in 2001. (6)
In light of these precedents, it can no longer be claimed that the enemy in war is 'in a specially intense way, existentially something different and alien' and the negation of our existence, the destruction of our 'way of life'. (7) Rather, we are increasingly unsure of how to typecast our enemies, and the embedded nature of the terrorism risk seems to demand the treatment of one's neighbour as potentially friend and foe. One of the consequences is the application of 'all-risks' policing measures, which treat almost anyone and everyone as a risk. Nevertheless, how can the casting of the intelligence web or the application of policing powers be used to enhance security while, at the same time, avoid social division or the wholesale repression of constitutional values? (8) Which mechanisms or strategies might assist in allowing us to live our lives tolerably free from the fear of terrorism risk and from the paranoia that our neighbour may turn out to be a terrorist?
This article will first explain in Part II what is meant by 'all-risks' policing in general and will explore, as one prominent example, the application of stop and search powers against the risk of terrorism. The statistical impacts of the powers, both in terms of the enhancement of security and the differential treatment of ethnic minorities, will be described and explained. Part III of the article will consider the constitutional and normative aspects of the powers, the police's practices around them and how those practices might be contained within a suitable normative framework. By reference first to case law, it will be seen how the courts have struggled to allow police demands for the widest possible discretion in the interests of public protection, while at the same time ensuring that communities are not discriminated against and that individuals are treated with respect. Finally, the article will consider in Part IV aspects of containment beyond case law, bringing in wider aspects of regulation and accountability.
II 'ALL-RISKS' POLICING POWERS
An intelligence-led approach provides a strong basis for action against terrorism. (9) Intelligence will trigger an array of policing operations and will also found executive action such as detention and control. However, when intelligence is not sufficiently precise to pick out foe from friend, then evermore pervasive tactics must be adopted. One approach will be the application of 'all-risks' policing powers, by which the police will treat anyone and everyone as a risk. The reason for their attention is not so much the suspicion falling upon any given individual, but the nature of the threat and the vulnerability or importance of a particular target. Thus, the risk calculation shifts from persons to actions and objects.
A familiar example of this all-risks approach is the universal screening of passengers at airports. (10) The legal instruments comprise the Hague Convention for the Suppression of Unlawful Seizure of Aircraft, (11) the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (12) and the Montreal Protocol on the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation. (13) As for administrative standards, the International Civil Aviation Organisation has developed annex 17 to its Standards and Recommended Practices, (14) which have been applied assiduously in jurisdictions such as Australia and the United Kingdom. (15) There are corresponding measures in place relating to maritime security. (16)
These international measures may be supplemented by additional national provisions. Within the UK, port controls under pt V and sch 7 of the Terrorism Act 2000 (UK) c 11 involve the further scrutiny of travellers. (17) Their purpose is to disrupt possible terrorist planning and logistics, and also to gather low-level intelligence about movements. The controls also deter attacks on the travel facilities themselves.
The system began in 1974 within the 'Common Travel Area' between Britain, Northern Ireland and the Republic of Ireland, where passport controls have never applied for reasons relating to the close common history of those territories. However, further changes were implemented by s 118 of the Anti-Terrorism, Crime and Security Act 2001 (UK) c 24, which allows an examining officer to exercise the port controls not only in relation to traffic entering the UK or between Ireland and Britain, but also in relation to persons travelling on a ship or aircraft within the UK.
The series of controls begins under para 2 of sch 7 of the Terrorism Act 2000 (UK) c 11, whereby an 'examining officer' (meaning a constable, an immigration officer or a designated customs officer) may question a person for the purpose of determining whether they appear to be a 'terrorist'. Reflecting the 'all-risks' nature of these powers, it is made clear that examining officers may exercise their powers under this paragraph whether or not they have grounds for suspicion against any individual. In this way, the possibility remains that the 'copper's nose' (18) for wrongdoing, based on intuition rather than rational indicators, must be allowed the occasional unprompted 'sniff'. Detention may be imposed during questioning, but the length of detention must not exceed nine hours. (19) A person who is questioned must, under para 5:
(a) give the examining officer any information in his possession which the officer requests;
(b) give the examining officer on request either a valid passport which includes a photograph or another document which establishes his, identity [the alternative is necessary because travel between Ireland and Britain does not require the production of a passport];
(c) declare whether he has with him documents of a kind specified by the examining officer; [or]
(d) give the examining officer on request any document which he has with him and which is of a kind specified by the officer. (20)
The person, and any ship or aircraft carrying them, may also be searched under para 8 of sch 7 and there is also a wide power to search unaccompanied baggage and goods under para 9.
Though the statutory powers cover 'all risks', some attempt to structure the wide discretion is tackled by para 10 of the Code of Practice for Examining Officers under the Terrorism Act 2000:
Examining officers should therefore make every reasonable effort to exercise the power in such a way as to minimise causing embarrassment or offence to a person who has no terrorist connections. The powers to stop and question a person should not be exercised in a way which unfairly discriminates against a person on the grounds of race, colour, religion, creed, gender or sexual orientation. When deciding whether to question a person the examining officer should bear in mind that the primary reason for doing so is to maximise disruption of terrorist movements into and out of the United Kingdom.
Note for guidance on paragraph 10
The selection of people stopped and examined under the port and border area powers should, as far as is practicable given the circumstances at the port or in the area, reflect an objective assessment of the threat posed by various terrorist groups active in and outside the United kingdom [sic]. Examining officers should take particular care not to discriminate unfairly against minority ethnic groups in the exercise of these powers. When exercising the powers examining officers should consider such factors as
* known and suspected sources of terrorism
* any information on the origins and/or possible location of terrorist groups
* the possible nature of any current or future terrorist activity
* the means of travel (and documentation) which a group of individuals could use
* [l]ocal circumstances, such as movements, trends at individual ports or parts of the border area. (21)
All-risks policing of terrorism is applied at places other than borders by stop and search powers under s 44 of the Terrorism Act 2000 (UK) c 11. These powers even more clearly exemplify how action can be taken against 'neighbours' in the light of terrorist threats, since the clientele away from ports and airports is much less likely to comprise foreigners. The question then arises that if neither intelligence nor reasonable suspicion is available, what patterns of usage will emerge? This article next explores the nature and usage of these internal stop and search powers as such an examination is key to an understanding of how neighbour terrorism is now being addressed within the UK, and perhaps how it might be dealt with in the future in comparable jurisdictions such as Australia.
III 'ALL-RISKS' POLICING THROUGH STOP AND SEARCH POWERS.
A Statutory Provisions
The powers in s 44 of the Terrorism Act 2000 (UK) c 11 allow any police constable in uniform to stop a vehicle or a pedestrian located within an area or at a place specified in an authorisation. Section 44 is the descendant of a number of additions to the Prevention of Terrorism (Temporary Provisions) Act 1989 (UK) c 4 (ss 13A and 13B) inserted by the Criminal Justice and Public Order Act 1994 (UK) c 33, s 62 and the Prevention of Terrorism (Additional Powers) Act 1996 (UK) c 7. Those measures were in response to large Irish Republican Army truck bombs in the City of London in 1992 and 1993 and then in Docklands in 1996. It was argued that the new powers afforded a chance to intercept munitions or to disrupt plans. (22) Section 44 of the Act now states:
(1) An authorisation under this subsection authorises any constable in uniform to stop a vehicle in an area or at a place specified in the authorisation 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.
(2) An authorisation under this subsection authorises any constable in uniform to stop a pedestrian in an area or at a place specified in the authorisation and to search--
(a) the pedestrian;
(b) anything carried...
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