Sir Ian Blair defends the indefensible

Remember Sir Ian Blair, the laughable policeman, the man who did for public confidence in the police what his namesake did for the trustworthiness of politicians? He's not happy with the European Court of Human Rights' ruling against the "stop and search" powers exercised with such gay abandon by his officers:

I find it difficult to reconcile the decision of the European court of human rights that police powers under section 44 of the Terrorism Act 2000 are unlawful with the rather common sense matter of the wider duty of governments to protect their citizens from atrocity.

Let me help. Protecting citizens from atrocity and demanding that Austrian tourists hand over their holiday snaps because some plod wants to preserve the modesty of a bus shelter are two entirely different things. Unfortunately, the law is so broadly worded - in particular, the provision that a police officer (or pseudo-officer) doesn't need to have any grounds for believing that the person searched has about their person anything of use for "terrorist purpose" - that it is wide open to abuse. And your officers (and pseudo-officers) have repeatedly abused it. That has to cast some doubt on the wisdom of there being such a wide-ranging law in the first place.

Short version: if your officers had stuck to the "common-sense" course of stopping people who might turn out to be terrorists, then the case of Kevin Gillan and Pennie Quinton would never have come before any sort of court, let alone the ECHR, because they would never have been stopped in the first place.

The European Court's judgement (via Jack of Kent) offered these sobering statistics:

The Ministry of Justice recorded a total of 33,177 searches in 2004/5, 44,545 in 2005/6, 37,000 in 2006/7 and 117,278 in 2007/8. In his Report into the operation of the Act in 2007, Lord Carlile noted that while arrests for other crimes had followed searches under section 44, none of the many thousands of searches had ever related to a terrorism offence; in his 2008 Report Lord Carlile noted that examples of poor and unnecessary use of section 44 abounded, there being evidence of cases where the person stopped was so obviously far from any known terrorism profile that, realistically, there was not the slightest possibility of him/her being a terrorist, and no other feature to justify the stop.

Why, then, were these people being stopped? While Gillan and Quinton wound its unsuccessful way through the English courts, various judges pointed out that the powers granted under the Act, while very broadly stated, ought not to conflict with the right to privacy (under Article 8 of the Convention) if they were used properly.

In the Divisional Court, Lord Justice Brookes said:

It is elementary that if the police abuse these powers and target them disproportionately against those whom they perceive to be no particular friends of theirs the terrorists will have to that extent won. ...If the police wish to use this extraordinary power to stop and search without cause they must exercise it in a way that does not give rise to legitimate complaints of arbitrary abuse of power.

The Court of Appeal said:

It is entirely consistent with the framework of the legislation that a power of this sort should be exercised when a senior police officer considers it is advantageous to exercise the power for the prevention of acts of terrorism. Interpreted in this way, sections 44 and 45 could not conflict with the provisions of the Articles of the ECHR. If those Articles were to be infringed it would be because of the manner of the exercise of the power, not its existence. Any possible infringement of the ECHR would depend on the circumstances in which the power that the sections give is exercised.

In the House of Lords, Lord Hope said:

It should be noted, of course, that the best safeguard against the abuse of the power in practice is likely to be found in the training, supervision and discipline of the constables who are to be entrusted with its exercise. Public confidence in the police and good relations with those who belong to the ethnic minorities are of the highest importance when extraordinary powers of the kind that are under scrutiny in this case are being exercised. The law will provide remedies if the power to stop and search is improperly exercised. But these are remedies of last resort. Prevention of any abuse of the power in the first place, and a tighter control over its use from the top, must be the first priority.

And Lord Bingham noted:

It is true that he need have no suspicion before stopping and searching a member of the public. This cannot, realistically, be interpreted as a warrant to stop and search people who are obviously not terrorist suspects, which would be futile and time-wasting.

All these courts gave the Terrorism Act the benefit of the doubt, instead stressing that the onus was on the police to use the power sensibly, proportionately and for the proper purpose of preventing terrorism. Yet despite this, despite increasing public disquiet about the harassment of photographers, peaceful protesters, journalists and tourists - even watercolourists, for heaven's sake - police enthusiasm for stopping and searching has not diminished. From 44,545 searches in 2005/6 (the period of the London tube bombings) to 117,278 in 2007/8 and (according to Henry Porter) a quarter of a million last year is an increase that cannot possibly be attributed to a rising terrorist threat. When a particularly absurd case reaches the press, ACPO or the press office of the force concerned issues a statement clarifying the "guidance" issued to officers and promising that such absurdities will not occur again. Yet somehow they do. What is worse, anyone who reacts with anything other than meekness to being questioned - by reminding the police of their rights, for example - runs the risk of being arrested, having their DNA taken, even fined.

Even Sir Ian Blair himself admits - how could he not? - that "I have no doubt that these powers have been used inappropriately from time to time." That's not good enough, though. Evidence that the powers have been used inappropriately is not hard to find. Much more striking is the lack of evidence that the powers have ever been used appropriately. No terrorism-related charges have been brought against anyone as a result of a search carried out under the 2000Terrorism Act. If these were necessary powers for the police to have in the fight against terrorism, one would expect at least some terrorists to have been thwarted by their deployment. It seems not.

Writes Blair, the man who still publicly defends the fatal shooting of Jean Charles de Menezes:

All that said, the abolition of these powers would be very unfortunate. As the attempted attack over Toronto on Christmas Day showed, al-Qaida central is still active.

It was Detroit, but you can't expect a former Commissioner of the Metropolitan Police to worry about trifles like that.

It is important to understand that the power granted by this legislation is entirely different to that provided for stop and search for drugs, stolen goods and weapons. For those offences, police have to have reasonable suspicion that an individual may have such items upon them. The whole point of Section 44 is that that is not required: this is a process, akin to an airport search, designed to make clear to terrorists that they are at risk, however covert their behaviour, of being searched and having their details logged at random.

Ah, so searching self-evidently innocent people is all part of the cunning plan. It's about "sending a message" - in this case to terrorists - that anyone might be subjected to a "futile and time-wasting" search, even them. Such a policy, to be effective, depends upon the vast majority of searches being completely irrelevant, even vexatious. Of course, there's always the possibility that the police might get lucky one day and find an actual terrorist. But the law would have served its purpose if a terrorist just happened to read about one of those unfortunate photographers and decided not to bother doing the terrorism after all.

Is that really what the law was designed to achieve? None of the judges, domestic or European, that heard Gillan and Quinton entertained any such fanciful notion. For them, it was obvious that the targets of s44 searches were intended to be likely terrorist suspects, and that absolving the police from the need to prove (or even have) reasonable suspicion was purely so that they would not feel hampered when it came to protecting the public.

With yesterday's ruling, the ECHR has finally bitten the bullet and acknowledged, as the domestic courts failed to, that when the spirit of a law is being routinely flouted by the police charged with upholding it, any "safeguards" attached to the law or its associated codes are clearly inadequate. There must be something wrong with the law.

So what is wrong with the law? Easy: it assumes that the police can be relied upon to exercise some modicum of proportionality and common-sense, whereas all too often they can't.

It may in part be that many police officers have a genuine, but woefully exaggerated, sense of the prevalence and threat of terrorism. They may genuinely believe that a person taking a photograph might be a terrorist. Yet given the repeated guidance they have supposedly been given, that excuse no longer seems particularly convincing. It's frequently pointed out that the misuse of s44 undermines public trust in the police - strikes at the very root of the British tradition of policing by consent. Perhaps that's what they want. Oderint dum metuant, as Bootikins used to say.

But then again, never underestimate the power of political correctness to distort public priorities. Here's Ian Blair again, openly admitting that the police have been targeting people they know are not terrorists:

Were the power to be abolished or unduly curtailed in its application – although as Lord Carlile suggests, there may be merit in a limited review following this judgment – two consequences are likely. The first is that it would be almost inevitable that police officers would, as a pragmatic solution, begin to target these kind of searches much more closely on the particular community from which the current threat is seen mainly but not exclusively to come, young Muslims, with all the increase in alienation that would engender. Inconvenience shared must be preferable.

This line of reasoning is entirely specious, not least because there is abundant evidence that young Muslims already are targeted disproportionately under s44. The answer to this is not to randomly search white grandmothers so as to make up the numbers, as Blair seems to want and as had been occurring long before this latest judgement. However culturally insensitive, a policy of stopping only people of Asian appearance would, other things being equal, be more likely to trap potential terrorists than a policy of "sharing inconvenience". All Islamist terrorists (and they are the ones we're worried about) are by definition Muslim, and the vast majority, in Britain at least, have been from an Asian background.

No, the point is that, under Blair's own politically correct dispensation, the disproportionate searching of young Asian males did not yield a crop of terrorists or would be terrorists who could be charged. That's not because terrorists are not overwhelmingly likely to be young Asian males - they are. It's because, even granted this fact, the chance that any particular young Asian male who is stopped is engaged in terrorism is close to zero. There simply aren't enough terrorists to make the widespread and arbitrary use of the power worthwhile. Instead, the policy fuels mistrust and resentment of the police. By "sharing the inconvenience", Blair means that he wants everyone to distrust and resent the police, not just members of a particular community.

"Second, and avoidably," writes Sir Ian Blair in conclusion, "Britain would simply be less safe."

No it wouldn't. It would just be slightly less unpleasant to live in.