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Introduction

Schedule 7 to the Anti-social Behaviour, Crime and Policing Bill 2013[1] makes a number of changes to Schedule 7 of the Terrorism Act 2000 (‘the act’). In this submission we argue for one change above all others: repeal.

The bill has passed the Committee stage and is scheduled for the Report Stage on Monday 14 October 2013. Therefore an amendment to repeal must be tabled by this Friday 11 October.

Our work on Schedule 7

IHRC has long been concerned with Schedule 7 of the Terrorism Act 2000 since we started receiving reports of abuse immediately after the Terrorism Act came into force.

Our work has involved:

• producing leaflets[ii] and performing workshops both of which advise people on their rights during Schedule 7 encounters;
• making complaints and pursuing litigation;
• producing reports that discuss the matter;[iii]
• responding to the multiple Home Office Consultations;[iv]
• our Chair, Massoud Shadjareh, has been sitting on the Schedule 7 National Accountability Board since its inception – during which time he has been a victim of Schedule 7 stops;[v]
• Calling for an Independent Investigation into Schedule 7;[vi]

David Miranda: The tip of the iceberg

On 18 August 2013, Schedule 7 was subject to widespread scrutiny and criticism after David Miranda, the partner of Guardian journalist Glenn Greenwald – who exposed Mi5, Mi6 and GCHQ’s systematic violation of the British peoples’ private communications – was detained for 9 hours at Heathrow Airport. His electronic equipment was confiscated including a computer, pen drives, an external hard drive and several other electronic items including a games console. He had no access to publicly funded legal advice. Police asked him to reveal the passwords to his mobile phone and computer, and threatened him with jail if he did not cooperate.

Whilst this might seem astonishing to many, our extensive and longstanding experience tells us that this is only the tip of the iceberg. This type of stop is both permitted within the law and has elements that are typical of the cases we have encountered. IHRC believes that Schedule 7 is one part of a set of British anti-terrorism laws that amount to a modern day witch-hunt against Muslims[vii].

Outline

We will show that it is necessary for the government to repeal Schedule 7 and to hold an independent inquiry into its use and those involved. We will show this by outlining the problems with Schedule 7, the inadequacy of proposed amendments in the bill, and identify alternative powers available to the law enforcement agencies.

The problems with Schedule 7 currently

The lack of a requirement for reasonable suspicion permits its use on all travellers

As the law currently stands under Schedule 7 of the Terrorism Act 2000, an examining officer[viii] at a port, border or international rail station can question anyone entering or leaving to determine whether the person appears to be a terrorist[ix], and this power can be exercised “whether or not he has grounds for suspecting” that the person has had any such involvement in terrorism[x] i.e. the person being stopped is not a terror suspect. Indeed it is accepted that many people selected for examination will be entirely innocent of any unlawful activity[xi]. As any traveller entering or leaving a port, border, or international rail station can be stopped, all travellers are susceptible to examination.

The examining officer has extensive, draconian powers

Nonetheless, even without any suspicion that a person is a terrorist, in exercising this power an examining officer has been granted far-reaching powers:

• to stop an examinee;
• to remove an examinee from a ship, aircraft or vehicle;
• to question an examinee for up to 9 hours;[xii]
• to detain an examinee against their will;
• to search their person (including by strip search providing they are in detention) and/or any of their belongings;[xiii]
• to confiscate any belongings found during the search for up to 7 days;[xiv]
• to take an examinee’s DNA and/or fingerprints in certain circumstances.[xv]

The examinee has increased duties and fewer rights than a terror suspect or any other criminal suspect. The examinee is required to:

• give the examining officer all the information in their possession that the examining officer requests[xvi]. We have received complaints that officers are requesting that examinees provide general information about other people in the community, and suggest that people spy on their community. We submit that this part of the act is what officers are relying on to do this and we are concerned about the influence of Mi5 in the process.
• If a person fails/refuses to answer any questions by the officer or otherwise ‘obstructs’ the exercise of the officer’s functions under the act, they risk being arrested on suspicion of committing a criminal offence and being convicted, for which they could be sentenced to 3 months imprisonment and ordered to pay a fine.[xvii]
• It follows that under Schedule 7 there is exceptionally no right to privacy in response to questions and no right to silence because a person is under threat of arrest (and imprisonment) if they refuse to answer a question. This is irrespective of the nature of the question and whether it is relevant to determining whether or not the subject is a terrorist. IHRC has received numerous complaints about irrelevant or offensive questioning such as “do you pray?” The idea that you would be required to answer irrelevant questions such as “did you have sex with your wife last night?” is absurd. We submit and advise clients that they have a right to refuse to answer questions that are not for the purposes of determining whether or not they are a terrorist.
• The situation of a suspect during questioning is made even more difficult by the fact that the right to legal advice is curtailed. Examining officers do not have to wait for a solicitor to arrive. Unless an officer makes a decision to detain an examinee, they will not be able to get access to publicly funded advice.
• Unless an officer makes a decision to detain an examinee at a police station, any formal questioning during interview will not be recorded. This removes the right to have an independent record of the events during questioning and ultimately decreases accountability.
• By contrast if a person is suspected of criminality e.g. a terror suspect, namely suspected of being a terrorist contrary to section 41 of the Terrorism Act 2000, they have more rights than a subject under Schedule 7. Firstly, a suspect has the right to silence[xviii]. Secondly, if an examinee under Schedule 7 is not subject to a decision to detain him at a police station, the interview will not be recorded, whereas an interview with a criminal suspect, including for terrorism offences, will be recorded. Thirdly if a solicitor is requested, the officers must wait for a solicitor to arrive before the questioning can commence.
• The fact that examinees who are detained are treated differently from those who are not is inexplicable. For all purposes the examinee’s situation and the reality of the examination remain the same. However those who are detained have more rights.

The examining officer has fewer obligations placed on him to care for the welfare of the subject than a subject of an ordinary ‘stop and search’

• Fewer obligations than under any other pre-arrest search power: Although officers are required by the Code of Practice to explain the process to detainees, there are none of the ordinary statutory safeguards placed on an examining officer that are required before other pre-arrest stop and search, including under section 43, Terrorism Act 2000 (and even the now repealed section 44 TA 2000), can be carried out. Exceptionally, the regulatory framework in section 2 of Police and Criminal Evidence Act 1984 that governs stop and search does not apply. Accordingly, the examining officer is not required to do the following:
• to show the examinee that he is a police constable by wearing a uniform or providing a warrant card;
• to provide their name and where they are based;
• to explain to the examinee the law that permits the stop and search (which would be Schedule 7 TA 2000);
• to explain what item(s) they are looking for;
• to explain to the examinee the reason why they are being searched;
• inform the examinee of their right to a record of a receipt of the encounter.
• Without the officers being required by statute to carry this out, the examinee may not discover the reason for the stop, which is a common complaint. More generally the examinee will be less able to hold the officers to account.

The power is disproportionately used against non-whites, Muslims and people perceived to be Muslim

• For over nine years IHRC has received complaints from individuals alleging abuse. We have continually reported that the vast majority of the individuals who have been subjected to such abuse have been or have been deemed to be members of the Muslim community, indicating that a policy of religious and/or ethnic profiling is in place, either officially or unofficially.
• After repeated requests for information showing ethnic breakdown of stops under Schedule 7 by human rights groups, the Home Office released these figures for the first time in 2010. The figures confirmed what human rights groups have been complaining about since the introduction of Schedule 7; the disproportionate targeting of non-white communities.
• The figures for 2009-2010, 2010-2011 and 2011-2012 showed a disproportionate targeting of non-white people, in particular Asians and Blacks[xix]. These figures led to the claim that Asians are 42 times more likely to be subject to a Schedule 7 examination.[xx]
• Figures for 2009-2010 showed a disproportionate targeting of people from Asian and African backgrounds. The figures showed that where people were stopped and held for under an hour, the ethnic breakdown was: white people, 45% of stops; Asian people, 25%; black people, 8%; other ethnicities, 22%. The discrimination against ethnic minorities became glaringly obvious when we look for people who were stopped and questioned for over an hour. White people made up 19%, Asian people 41%, black people 10% and others (including Middle Eastern and Chinese) 30%. Asians make up 5% of the UK population, black people 3% and others 1%. White people make up 91% of the population.
• Although the figures for 2010-2011 show a 23% fall in the overall number of people stopped under Schedule 7, when the figures are broken down we see that the trend of targeting Asian/black communities continued unabated, and in fact saw a small increase. Of those stopped for under an hour 29% were Asian, 9% black, while white people made up 41%. For those detained for more than 1 hour the figures are white people 14%, Asian people 45% and black people 14%. For detention: white people 8%, Asian people 44% and black people 21%. The discrimination is also present in the collection of DNA material where the figures are white people 7%, Asian people 46% and black people 21%.
• In 2012-13 the figures again showed that although there was a significant fall in the number of people who were stopped, 79% were non-white.
• The figures do not show the whole picture. They mask the numbers of Muslims being stopped under Schedule 7 and if flights from specific countries are being targeted. The category of “Chinese or any other ethnic background” is also extremely misleading. This heading can cover Muslims who are not categorised as Asian or black e.g. Arabs, Indonesians, Iranians, and Kurds etc. This category makes up for 17% of all those stopped. Yet because the statistics combine multiple national and ethnic groups under one heading, we are unable to determine the ethnic/national origins of the people and make clearer assessments regarding racial as well as religious profiling.
• The figures indicate that examining officers are targeting people who are perceived to be Muslim. This is despite a recent report by the European Union stating that the vast majority of terrorist acts in Europe are perpetrated by people of European ethnicity, promoting various secular causes.[xxi]
• IHRC has raised its concerns about such abuse of powers on several occasions, both verbally and in written submission, with the Home Office, and in particular the National Co-ordinator for Ports Policing, but no response has ever been received.
• Although Guidance Note 9 warns that decisions of officers to stop and detain individuals “cannot be based on generalisations or stereotypical images of certain groups or categories of people as more likely to be involved in criminal activity”, and prohibits profiling in a general sense, it is still open to abuse due to the absence of any requirement that the Examining Officer have a reasonable suspicion (or indeed any suspicion) that the individual be some way concerned in the commission, preparation or instigation of acts of terrorism, in order to question him or her.

The amendments in the Government sponsored Anti-social behaviour, Crime and Policing bill do not go far enough

• Clause 124 of the Bill gives effect to Schedule 6, which makes certain amendments to Schedules 7 and 8 of the Terrorism Act 2000. We will outline and evaluate some of the key proposed changes:
  • Subparagraph 1(3) provides that the Secretary of State must issue a Code of Practice about training to be undertaken by officers who conduct stops, and a procedure for designating who can use them. We welcome the requirement for officers to be trained but we think that training will not suffice when the act continues to permit such broad powers to stop anyone without reasonable suspicion, indeed any suspicion. If training is included it should be formulated with consultation with independent community organisations. As a minimum, training should be coupled with an increased ability upon the regulatory Schedule 7 National Accountability Board to sanction officers who fail to adhere to the standards that they were taught in training.
  • Paragaph 2 removes the current 9 hour maximum time for questioning. Paragraph 2(3) reduces it to one hour. However it does provide that the examining officer can question for more than one hour and up to a maximum of six hours if a decision to detain the person is made. Whilst we welcome a reduction we think a power to question people for six hours is too long. An examining officer should be able to make a decision to arrest or not in less time. Six hours still allows too much time for a fishing expedition and intelligence gathering. It is also unnecessary given the fact that only 3% of interrogations last more than one hour. The maximum examining period should be cut from six hours to two hours after which the officer retains the power to arrest someone if grounds have arisen.
  • Paragraph 3(5)(b) inserts reasonable suspicion that an individual is a terrorist for the first time. It states that in order to carry out strip searches, one of the requirements is that the person is concealing evidence that they are involved in terrorist activities. However, we do not think that it goes far enough; there is no amendment to require reasonable suspicion for all interaction with an officer during an examination.
  • Paragraph 4 extends the application of the protections in Schedule 8 for detainees not only to detainees at police stations but also those at ports, airports and international rail stations. We welcome this but we believe that these protections should be extended further to all examinees, because it is not apparent why a distinction should be made.

The amendments in the bill do not address key issues at all

The bill does not address the following key issues:

• There should be a requirement for reasonable suspicion inserted. Without reasonable suspicion the provision is too broad, and discrimination will continue.
• The criminal offence for failure to answer questions should be removed. This is a significant interference with the right to silence and gives too much power to officers to threaten to arrest people when they ask questions which are not for the purposes the act was designed for such as offensive questions, and questions to gather general intelligence.
• Given the widespread abuse of powers, officers should be required to inform examinees of their rights, not merely their duties, before a search can be lawful, in particular the following rights:
  • a right to refuse to answer questions not related to determining whether or not they are a terrorist;
  • a right to refuse to answer questions about other people’s behaviour/actions;
  • a right to refuse any request or suggestion to spy on/inform on members of the community.
• There is a lack of accountability upon examining officers. Officers should be statutorily prevented from asking irrelevant questions. The Schedule 7 National Accountability Board should reconvene. It has not convened since a new Chair was appointed in November 2012. However if it does reconvene it should be given the power to sanction officers.
• There should be an independent inquiry into the role of the intelligence services, which is opaque and unclear in this situation. It is clear from testimonies that we have received that people are being asked to spy on and inform on their communities for Mi5. The power was not designed to recruit spies/informants but rather to find terrorists. We submit that the requests are not only wrong but suggest the involvement of Mi5 in the employment of Schedule 7. This must be investigated.

The case for repeal

IHRC has long held the opinion that repeal is necessary and appropriate.

Alternative powers exist independent of Schedule 7. The criminal law allows the arrest of people where they are suspected of serious violence. In addition, Section 47A of the Terrorism Act 2000 allows officers to stop and search anywhere (including ports and borders) without the individual officers requiring reasonable suspicion. However this power has the necessary safeguards in place: it can only be brought in when a senior officer reasonably believes that an act of terrorism will take place and that an authorisation is necessary to prevent such an act. Also the specified duration and area can be no more than what is necessary.

Whilst IHRC has tried through numerous avenues including through the National Accountability Board to have these shortcomings answered, our suspicions that Schedule 7 is beyond repair have been confirmed. In any event we believe that pre-existing legislation is sufficient to give officers enough powers to deal with the threat from terrorism. Other civil liberties and human rights organisations agree with our position.

The time has come for this law to be repealed. But even if it is repealed this will not suffice. An independent investigation should be called into MI5 for their role in the employment of Schedule 7.

Endnotes:

[1] The current version of schedule 7 of the Anti-social behaviour, crime and policing bill can be found here

[2] IHRC. Know your Rights under Schedule 7. 22nd August 2013. 

[3] For example in: Ansari, F. British Anti-Terrorism: A Modern Day Witch-hunt. July 2006  

[4] For example: IHRC. Response to the Home Office Consultation paper: Review of the Operation of Schedule 7. 2nd November 2012

[5] The Guardian. The Miranda detention: Labour turns the heat on Boris Johnson

[6] IHRC. Press release – David Miranda is just the tip of the iceberg – call for an independent investigation

[7] See: Ansari, F. British Anti-Terrorism: A Modern Day Witch-hunt. July 2006

[8] Sch 7 para 1: police constable, immigration officer or customs officer.

[9] Sch. 7 para 2(1); terrorist defined in section 40(1)(b) of the Terrorism act 2000 as a person that is or has been concerned in the commission, preparation or instigation of acts of terrorism.

[10] Sch. 7 para 2(4)

[11] Notes to paragraphs 9 and 10, Code of Practice for Examining Officers under the Terrorism Act 2000

[12] Sch. 7 para 6(4)

[13] Sch. 7 para 2-8

[14] Sch. 7 para 11

[15] provided the examinee gives written consent or in alternative where the examinee refuses such, if the examinee is then detained at a police station and the taking of samples is authorised by an officer of rank of Superintendent or above – see Sch 7 para 10.

[16] Sch. 7 para 2(5)(a)

[17] Sch. 7 para 18

[18] Albeit curtailed by section 34 of the Criminal Justice and Public Order act 1994.

[19] Home Office Statistics, Operation of police powers under Terrorism Act 2000 (2012-2013) 

[20] The Guardian. Asians 42 times more likely to be held under terror law 

[21] Europol: EU Terrorism Situation and Trend Report. 2013