“I do not think that the issues are likely to look much different in the near future.”

My pre-Christmas post on PSNI figures for stop-and-search under section 44 of the Terrorism Act 2000 failed to attract much attention despite showing a massive increase in its use between 2005 and 2008 – data is not available before July 2005. As the BBC notes today, independent security reviewer Robert Whalley has now reported on the operation of the Justice and Security Act (NI) 2007 [pdf file] between 1 April 2008 and 30 September 2009. Among the tables included in the report is one noting recent figures for stop-and-search under PACE, Terrorism Act and Justice and Security Act [Table 3]. I’ve isolated the figures for the Terrorism Act 2000 [TACT]

Number of persons stopped and searched under TACT S44
1 Apr to 30 Jun 2008 – 1,341
1 Jul to 30 Sept 2008 – 1,657
1 Oct to 31 Dec 20098 – 2,524
1 Jan to 31 Mar 2009 – 4,026
1 Apr to 30 Jun 2009 – 3,568
1 Jul to 30 Sept 2009 – 10,265
2009 (1 Jan to 30 Sept) – 17,859

The previously noted trend

Table 10: Power to stop and search: Number of person and vehicle searches under section 44 of the Terrorism Act (1)

Year – Number of persons stopped and searched – Number of vehicles stopped and searched

2005 – 204 – 156

2006 – 948 – 791

2007 – 2,167 – 1,801

Jan–Mar – 1,400 – 1,127
Apr–Jun – 1,341 – 1,123
Jul–Sept – 1,657 – 1,689
Oct–Dec – 2,524 – 2,077
2008 TOTAL – 6,922 – 6,016

Note: 1. Data not available before July 2005.
Source: Police Service of Northern Ireland

And from the Independent Reviewer’s Conclusions “[relating] to the second full year of the operation of the Justice and
Security Act, from 1 August 2008 to 31 July 2009” [Part 7]

Operation of the powers

222. The information I have received from the police and the armed forces shows the increased activity needed to counter the threat from dissident republicans in the past year, including dealing with explosive devices and hoaxes, but otherwise with a reduced role for the armed forces.

223. So far as the police are concerned, they have resolved the issues raised last year about the relationship of various sets of police powers. Steps have been taken across the PSNI to ensure that these issues are better understood. Training has been improved to drive the messages home and recording of activity has improved, though there is still more to do. It would have been unacceptable if all this work had not been done and it needs to be continued and developed further.

224. No-one has raised with me issues relating to disproportionate, unjustified, unreasonable, unnecessary or discriminatory use of the powers by the police. From my observation, their strategic approach has been appropriate. They remain closely focused on their obligations under human rights legislation. [added emphasis]

225. The improved recording of activity will enable me to develop more detailed analysis of the impact in individual cases. I shall do this in close conjunction with those who have the direct statutory responsibilities for such cases– the Policing Board for Northern Ireland and the Police Ombudsman.

226. The statistics continue to show the limited use of the Justice and Security Act powers by comparison with other powers under the PACE Order and, more specifically, the Terrorism Act. The police have used the Terrorism Act about ten times more than the Justice and Security Act. Lord Carlile is considering the use of section 44 of the Terrorism Act. [added emphasis]

227. Direct comparison with the Terrorism Act may not however be helpful when the police are making judgments across the range of powers available to them according to the circumstances of each case. Their use must be carefully justified in every individual case, which is open to complaint and legal challenge and for which avenues of redress are plentiful and effective.

228. The powers have been used this year because of the activities of the dissident republicans, which are blocking the path towards normal security and are hindering the development of policing strategies focused on serving community interests. All communities in Northern Ireland are suffering from the effects of dissident republican activity.


Operational need and advice

245. The question of the continuing need for these powers turns principally on whether there is likely to be an operational need for them. The main factors in that consideration are the evidence of the past year, assessment of the likely security profile, and advice from the police.

246. All three of these indicators suggest that the powers will continue to be needed. They have been used selectively this year as part of security operations, as indicated in the discussion above and in the statistics. The terrorist threat remains at “severe” and dissident republican activity is continuing. Both the PSNI and ACPO have told me that they believe that these powers continue to be needed.

247. Some of the powers provided in the Act for the armed forces have not been used this year. That raises the question whether they could be dispensed with. There is the option of removing them, leaving only those powers which on this year’s experience might again be needed, but a judgment of this kind must inevitably be speculative at present.

Other views

248. The future of these powers has featured in the discussions I have held as part of the review. I have recorded these discussions in Part 3.

249. Some have said very strongly that it would be folly to remove these powers in the face of the current and foreseeable security profile. In their view, Northern Ireland is facing its most serious security challenge for many years. They see no prospect of immediate reduction in the threat from dissident republicans and take the view that the security authorities need the maximum flexibility in their response, in which the Justice and Security Act powers play a vital part.

250. Those who last year were opposed to these powers, which they regarded as counterproductive and likely to stigmatise particular communities, continue to fear that overreaction to the increased threat will play into the hands of the dissidents and produce the opposite effect from what is needed. In their view, the continued retention of these powers perpetuates a negative climate which dissidents will seek to exploit, with harmful effects on vulnerable communities.

251. Compared with last year, few of the groups and individuals to whom I have spoken have put forward the view that the security authorities are overestimating the security threat from the activities of the dissident republicans, who are small in number but highly dangerous.


252. I have reflected on all these comments carefully as well as considering the operational indicators. My conclusion is that, in the light of the activities of dissident republicans, the balance of argument in favour of continuing these powers is persuasive. I do not think that the issues are likely to look much different in the near future. [added emphasis]