Wednesday, November 21, 2012
John Ip (University of Auckland - Faculty of Law) has posted The Reform of Counterterrorism Stop and Search after Gillan v. United Kingdom on SSRN. Here is the abstract:
This paper considers the reform of the power to stop and search originally conferred by sections 44 to 47 of the Terrorism Act 2000. These sections permitted executive branch actors to authorise stops and searches of vehicles and pedestrians within a broad geographical area for up to 28 days. Police officers could then employ this power to search for any articles which could be used in connection with terrorism, irrespective of whether they had grounds for suspecting the presence of articles of that kind. These sections essentially created two broad discretions: a “front-end discretion” of a senior police officer and the Secretary of State as to whether to make an authorisation and confirm an authorisation, and a “back-end discretion” of an individual officer as to whom to target for a stop and search.
In Gillan & Quinton v United Kingdom  ECHR 28, the European Court of Human Rights ruled that the stop and search power under sections 44 to 47 of the Terrorism Act violated Article 8 of the ECHR. This precipitated a series of changes to counterterrorism stop and search in the United Kingdom. This paper details those changes, and considers whether they are sufficient to ensure compliance with the Gillan decision. Next, the paper discusses the role that various political and legal institutions have played in scrutinising the operation of this particular counterterrorism power and how they have contributed to its eventual reform. The argument here is that the reform of counterterrorism stop and search suggests that courts, legislative bodies, and other mechanisms of oversight and review all have important and complementary roles to play in ensuring appropriate governance of executive counterterrorism activities.