Terrorism Act 2000 Section 44

Dear Mr Harding,

I acknowledge receipt of your correspondence received 08/12/2009 via the
Cheshire Police Authority, which is being dealt with as a request for
information in accordance with the Freedom of Information Act 2000 by
Cheshire Constabulary.

I am in the process of dealing with your request and will respond in due
course and in any case by 08/01/2010. Please contact us by e-mail at
[email address] if you have any further enquiries.

Regards

John Gannon
Freedom of Information Officer
Tel: 01244 614176
===================================
Cheshire Constabulary Headquarters
Clemonds Hey
Oakmere Road
Winsford
CW7 2UA
===================================

This communication is intended for the addressee(s) only.
Please notify the sender if received in error. Internet email
is not to be treated as a secure means of communication.
Cheshire Constabulary monitors all Internet and email activity
and requires it is used for official communications only. Thank
you for your co-operation.

Dear Mr Harding,

I refer to your recent request for information under the Freedom of
Information Act 2000 as set out below:

Under the Terrorism Act 2000 Section 44, the Police are allowed to
designate areas of the country where law enforcement personnel
could stop and search any person and/or vehicle without having to
have a valid reason and confiscate any item that could conceivably
have a terrorist purpose.

Please can you release all locations in Cheshire that are
designated under Section 44.

I appreciate that some locations, the Police may be sensitive about
disclosure but I would also like a total of areas actively
designated under the legislation that the CPA are aware of, along
with a full reason as to any non-disclosure.

In accordance with section 1 (1) (a) of the Act our response is provided
below;

I can confirm that Cheshire Constabulary holds the information you have
requested and I can state that there is one Section 44 authority in place
within the Constabularies policing area.

In so far as the specifics of your request are concerned. Section 17 of the
Freedom of Information Act 2000 requires the Cheshire Constabulary, when
refusing to provide such information (because the information is
exempt) to provide you with a notice which a) states that fact, b)
specifies the exemption in question and c) states (if that would not
otherwise be apparent) why the exemption applies.

The information is exempt by virtue of the following:

Section 23(1) Information supplied by or concerning certain Security
Bodies;

Section 24(1) National Security,

Section 31(3) Law Enforcement and

Section 38(1) Health and Safety.

Section 23 is a class based absolute exemption which means that the
legislators have identified that there would be harm in disclosure of
information where this exemption is engaged and there is no requirement to
articulate the harm.

Sections 24, 31 and 38 are prejudice based qualified exemptions which means
that there is a requirement to evidence the harm in disclosure as well as
considering the public interest in disclosure

Harm and Public Interest Considerations

Section 24
Terrorist activity within the United Kingdom is a real and current threat
and the Police Service has a duty of care to protect the public they serve.
To identify the locations where Section 44 Authorisations have been or are
in place would reveal sensitive tactical information.

Factors favouring Disclosure
By identifying the specific locations which are subject to Section 44
authorisations would provide a better awareness to the public to enable
them to take steps in order to protect themselves.

Factors favouring Non-disclosure
Whilst there is a public interest in providing reassurance that the Police
Service is appropriately and effectively dealing with threats posed by
terrorist attack, there is a strong public interest in safeguarding
national security.
Any disclosure has the potential to undermine ongoing and future operations
to protect the security of the United Kingdom which would significantly
increase the risk of harm to the community at large.

Section 31
The Police Service is charged with enforcing the law, preventing and
detecting crime and protecting the communities we serve. Modern-day
policing is intelligence led through liaison with other agencies and the
community at large.
Section 44 authorisations are identified by police forces using up-to-date
intelligence. To identify the specific location where these authorisations
are or have been active would reveal sensitive information concerning
current policing operations to interested parties, and enable any terrorist
organisation to map such activity and subsequently allow them to operate
outside of those particular areas.

Factors Favouring Disclosure
It could be argued that the transparency of anti-terror operations would
provide a greater awareness to the public which may lead to more
information (intelligence) being submitted to the Police Service.

Factors Favouring Non-disclosure
Anti-terror investigations and operations is a highly sensitive area of
policing. As evidenced within the harm above to identify the exact
location of these authorisations would seriously hinder the prevention or
detection of crime. If an ongoing anti-terror operation is jeopardised
this would lead to a further impact on police resources as there would be a
requirement for further manpower to be utilised in order to take steps to
continue with the planned operation.
As stated above anti-terror investigations would rely on intelligence
received from the community and other organisations. Disclosure would
seriously undermine the partnership approach to law enforcement.

Section 38
When Section 38 is engaged there must be ‘actual’ evidence of the harm that
can be caused. To disclose information that undermines the operational
integrity of anti-terror operations will adversely affect public safety.
Examples of this is the tragic events of 7th July 2005 and the failed
attempts in London and Glasgow on 30th June 2006.

Balancing Test
Public safety and the security of the country is of paramount importance
and the Police Service will not divulge information if to do so would
adversely affect public safety and have a negative impact on both National
Security and effective law enforcement. Therefore, at this moment in time,
it is our opinion that for these issues the balancing test for disclosure
is not made out.
Section 44 authorisations are identified by police forces using up-to-date
intelligence. To identify the specific location where these authorisations
are or have been active would reveal sensitive information concerning
current policing operations to interested parties, and enable any terrorist
organisation to map such activity and subsequently allow them to operate
outside of those particular areas.

If I can be of any further assistance in this matter, please do not
hesitate to contact me.

If you are not satisfied with the decision applied in this case I enclose
for your attention a copy of the Constabulary's appeal procedures.

(See attached file: FOI Appeals Procedures.Final version.doc)

Regards

John Gannon
Freedom of Information Officer
01244 614176

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Mr Harding

Thank you for your further email, this, like your initial request, has
been forward to the Constabulary's Freedom of Information unit to respond
directly to you.

Regards

Viv Craven
PA
Chief Exeuctive
Cheshire Police Authority

Mr Harding To FOI requests at Cheshire Police Authority
<[FOI #24313 email]> <[Cheshire Police Authority request email]>
cc
13/01/2010 21:44 Subject Re: Freedom of Information request -
Terrorism Act 2000 Section 44

Dear Cheshire Police Authority,

In support of my application for the release of the data requested,
I would like to add that the European Court of Human Rights found
against the Government in relation to the Terrorism Act 2000
(judgement at

[1]http://cmiskp.echr.coe.int/tkp197/view.a...)
. In the case brought before the court, one of the arguments used
by the claimants was that the stop and search powers under Section
44-47 of the Terrorism Act are a breach of Article 8 of the
Convention on Human Rights, as the legislation was freely
accessible to the public but that the authorisations and
confirmations of Section 44-47 were not. The alleged violation of
Article 8 was upheld by the court and the Government were ordered
to pay damages.

Furthermore, it has become apparent that the Metropolitan Police
did release the area of their force that Section 44 did apply to,
and that this was under a "rolling programme" of confirmation.
Given that London would be arguably a greater terrorist target, it
would appear illogical if Section 44 notices applied to Cheshire
were with-held from the public, but that the Metropolitan Police
were happy to announce their locations designated under Section 44.

Yours faithfully,

Mr Harding

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Dear Mr Harding,

Cheshire Police Authority have forwarded to me your email dated 13th
January 2010.

The content of your email makes little sense as we have responded to your
request on 6th January 2010. However I have checked the web site
"What do they know" and I note an entry dated the 9th January 2010, again
addressed to the Police Authority, requesting an internal review. This
email has not been received by the Constabulary nor the Authority.

We did inform you the your request was being dealt with by the Constabulary
and we did supply you with our email address for future correspondence.

It would help if you would correspond with the correct authority at the
following:- [email address]

Until such time as the Constabulary receives further communication from you
we cannot proceed.

Regards

John Gannon
Freedom of Information Officer
01244 614176
=========================
Cheshire Constabulary HQ
Winsford
CW7 2UA
========================

This communication is intended for the addressee(s) only.
Please notify the sender if received in error. Internet email
is not to be treated as a secure means of communication.
Cheshire Constabulary monitors all Internet and email activity
and requires it is used for official communications only. Thank
you for your co-operation.

Dear Mr Harding,

Thank you for your email received 15/01/2010 in which you express
dissatisfaction with our response to your request under the Freedom of
Information Act 2000, our reference number 2298.

In view of your comments your request has been forwarded to Mr Nick Regan
who has been appointed by the Authority to act as an independent
appeals/reviewing officer. In accordance with our current policy, in line
with the requirements of the Act and guidance from the Information
Commissioner, our response to a review will be provided on or before the
12/02/2010.

If you require any further information you may contact Mr Regan direct on
the following:

By telephone: 01244 614113

or by email to

[email address]

You can of course contact me direct over this or any other FOI matter at
any time using the contact information already provided.

Regards

John Gannon
Freedom of Information Officer
01244 614176
===========================
Cheshire Constabulary HQ
Winsford
CW7 2UA
===========================

J.F.Gannon
Freedom of Information Officer
01244 614176

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Dear Mr Harding,

I write with reference to your email dated 14^th January 2010 in which you
request a review under the Freedom of Information Act in relation to your
request for information under the Act dated 8th December 2009. Please
accept my apologies for the protracted delay in communicating my findings
to you.

In carrying out this review, I have referred to the legislation guidance,
the Code of Practice on the Discharge of the Functions of Public
Authorities under Part 1 of the Freedom of Information Act. I have also
taken into account the ACPO Freedom of Information Act Manual of Guidance
and the rationale as set out in your email of the 14^th January 2010.

I would advise that after considering the original request and the
associated response from the Constabulary, the original decision is upheld
to the extent that the information provided with regard to the number of
Section 44 Terrorism Act 2000 locations within the Cheshire Constabulary
area is correct and appropriate for release. With reference to all
location details, the application of the cited exemptions are valid.

When refusing to release the requested information, Section 17 of the
Freedom of Information Act requires the Constabulary to advise you
accordingly, state the applicable exemption(s) and why they apply.

As previously advised, the information sought is exempt under the
following exemptions:

Section 23(1) - Information supplied by, or relating to, bodies dealing
with security matters.
Section 24(1) - National Security
Section 31(1)(a)(b) - Law Enforcement
Section 38(1)(a)(b) - Health & Safety

Please note that in our original response, we detailed that the exemption
under S31 was in subsection (3). This should have referenced S31(1)(a)(b).
The public interest test arguments detailed in our response were set out
as in line with S31(1)(a)(b).

The exemptions as set out in the Act are detailed as being either absolute
or qualified and class based or prejudice based. Such qualifications
establish as to whether the public authority is required to undertake a
harm and public interest test.

Section 23, is an absolute, class based exemption which does not require
an associated harm or public interest test to be demonstrated.

Sections, 24, 31 and 38 are qualified, prejudice based exemptions and the
associated supporting tests are set out below.

Section 24(1) National Security

Harm - The threat posed by terrorist activity is valid now as it has ever
been and all police and security services have a duty of care to safeguard
the public. To release details of locations identified under S44 Terrorism
Act 2000 would be to reveal strategic operational information and would
also confirm locations where S44 has not been applied, thus aiding those
who's aim is to undertake terrorist actions.

Public Interest - Factors Favouring Disclosure
In releasing information about specific S44 locations, the Constabulary
could allow members of the public to be better informed in order that they
could take any appropriate action to protect themselves.

Public Interest - Factors Favouring Non-Disclosure
Releasing location information under S44 would compromise any ongoing and
future operations established to protect the security of the country.
National security requires a high level of working on a "need to know"
basis and detailing locations would jeopardise any safeguards.

Section 31(1)(a)(b) Law Enforcement

Harm - In order to carry out its policing purposes, including the
prevention and detection of crime, and the apprehension of offenders, the
Constabulary is heavily reliant upon intelligence both from the public and
other investigatory agencies. To release S44 locations would disclose
sensitive operational information and by default, would also detail where
S44 authorisations are not active. This would facilitate any terrorist
unit to obtain an overall view and pattern of sensitive police operations
and would place the public at risk from potential attack where it is
deemed that areas are suitably vulnerable.

Public Interest - Factors Favouring Disclosure
Wider awareness of where S44 authorisations are detailed may encourage the
public to be pro-active in conveying information/intelligence to the
Constabulary about activity they have seen in their areas.

Public Interest - Factors Favouring Non-Disclosure
If the Constabulary were to disclose details relating to S44
authorisations, there would be a serious impact upon law enforcement
tactics and operations and as a result, the prevention and detection of
crime. In addition, the Constabulary works closely with other partner
agencies and the flow of appropriate intelligence amongst these bodies
would be negatively impacted upon should it be routinely disclosed.

Section 38(1)(a)(b) Health & Safety

Harm - Publishing information in relation to anti-terrorist operations and
strategic tactics would undermine their effectiveness and integrity and
would impact upon public safety.

Public Interest - Factors Favouring Disclosure
Where there is wider awareness of S44 authorisations, this could result in
the public having a greater awareness in those areas for their own
protection and they may wish to risk assess accordingly.

Public Interest - Factors Favouring Non-Disclosure
Disclosing location details would result in a loss of confidence in the
Constabulary to protect the well being of the community and would heighten
the risks to individual members of the public.

Balancing Test

The last ten years has seen a marked increase in the potential terrorist
threat in this country. This has resulted in an increased risk to members
of the public (as evidenced in the attacks in London and Glasgow) and it
is essential that the police service along with partner agencies share
intelligence and strategic information on a need to know basis. The safety
of the public is of paramount importance and the police have to ensure
that law enforcement and the associated national security issues are duly
effective. It is therefore my view that in balancing the respective
arguments, that the information requested is appropriately exempt and
should not be disclosed.

If I can be of any further assistance in this matter, please do not
hesitate to contact me.

Under the Freedom of Information Act 2000, you have further recourse for
appeal, if required, to the Information Commissioner. Information can be
obtained about the appeal procedure from:

The Information Commissioner
Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK8 5AF

Yours sincerely,

.

This communication is intended for the addressee(s) only.
Please notify the sender if received in error. Internet email
is not to be treated as a secure means of communication.
Cheshire Constabulary monitors all Internet and email activity
and requires it is used for official communications only. Thank
you for your co-operation.