Thursday 15 May 2014
Written By: Naila Abdel-Khalek and Anna Sekular
CAGE has made a submission as part of the public consultation on the Schedule 7 officers’ Code of Practice. Though the government’s move to offer more operational accountability can be seen as a step in the right direction, CAGE maintains that Schedule 7 of the Terrorism Act needs to be repealed due to its inability to secure UK borders and the discriminatory way in which it is used.
1) The reduction of the maximum period of examination from nine to six hours
The maximum duration of questioning is six hours, this is a welcome change and is one that is clearly reflected in the Code. CAGE is of the opinion that the maximum period of examination can be considerably further reduced.
The Code states the maximum period of examination, which is 6 hours. The form that is given to those being questioned, namely the “Notice of Detention under Schedule 7 of the Terrorism Act 2000” at Annex A, sets out an individual’s rights and duties, however it does not state the maximum period of examination. Since this is a recent change to the legislation it cannot be expected that a lay person would know their rights in regards to the number of hours they are allowed to be detained and questioned for. CAGE asserts that this should be added to the form.
The fact that examination and detention have now been differentiated is welcomed and helps towards understanding officers’ duties at each stage. However, in terms of questioning and what can be asked, the two periods remain similar. To that end, the rights afforded to the individuals should be the same in both scenarios. For example the right to legal representation and the right to have someone informed should be in both situations mandatory, not at the discretion of the officer.
2) The extension to individuals detained at a port of the statutory rights to have a person informed of their detention and to consult a solicitor privately
The right to have legal representation is a fundamental right; it is therefore welcomed that such a right is enshrined in the legislation and reflected in the Code. This is ten years late in coming. The right to consult a solicitor is also detailed in the Notice of Detention which is an important way of informing those who are targeted under Schedule 7.
The provision that an officer can proceed without the individual having an opportunity to consult his or her legal representative based on a premise that this may unduly delay examination is unreasonable. Accessing legal representation via electronic means can take a matter of minutes, and is a basic right an individual should be permitted to exercise. To limit someone’s right to legal advice and representation would be disproportionate and an abuse of power.
CAGE takes issue with the fact that the right to a solicitor is only absolute when the individual is being detained. As per para 41 of the Code, consulting a solicitor while being examined is only granted at the officer’s discretion. The importance of legal advice when being questioned is imperative and the fact that this right can potentially be taken away by the very authority that does the questioning is unacceptable and should not be the case. This provision should be amended to be an absolute provision beyond the decision of any official.
The right to have someone informed is an important right, one that is reflected in the Code in so far as detention is concerned. It is also clearly stated on the Notice of Detention. Given the fact that a “great majority of those examined under Schedule 7 were held for under one hour: 47,610 examinations in total (96%). Only 1% of these (623) resulted in detention”. It is concerning that the individual’s rights are diminished under examination and that the right to have someone informed is at the discretion of the examining officer. The right to legal representation and having someone informed that you are being examined and/or detained, should be upheld and should apply without qualification of any officer exercising discretion to limit those rights. Therefore, these rights will still be denied to the vast majority of people that are held under Schedule 7 and as such this Code of Practice and the amendments that are being introduced don’t make practical difference to the individual.
Further, the fact that access to a solicitor can be publicly funded is portrayed clearly in regards to detention, however it is not publicly funded with regards to examination. This could greatly hinder someone otherwise eligible for publicly funded assistance, forcing them to pay privately for a right they should nevertheless be entitled to.
3) The clarification that the right to consult a solicitor includes consultation in person
It is stated in the Code that the individual can consult a solicitor privately which may be in person or over the telephone. Since the consultation can take place over the phone or otherwise – it is not reasonable in any circumstance for the questioning to go ahead without prior consultation with a solicitor. Searches should also be postponed until the arrival of the solicitor as a way of preventing any abuse of power. For instance, the High Court recently declared that a Muslim man (Abdelrazag Elosta) was unlawfully refused access to a solicitor before he was questioned and detained under Schedule 7. In this case, the Judge ruled that Elosta had undergone “45 minutes of unlawful questioning” and that “the examining officer had no power to question the claimant after he had requested the presence of a solicitor and prior to the solicitor’s arrival”.
4) Ensuring access to legal advice for all individuals examined for more than one hour
This is stated in the Code and it is an important right to uphold.
It is unacceptable that records of examination are not to be made available to the individual or their solicitor, as with criminal law – and in police stations, such documents should be available to individuals upon request.
The fact that there does not have to be a solicitor present when searching the individual’s belongings is unacceptable and raises concerns regarding the lack of due process. The individual should not be required to do anything or have anything done to him without having the necessary legal representation, this includes the search and questioning.
5) The introducing of a statutory review of the need for continued detention:
It is clear from the Code, after one hour the individual who is being examined, and their solicitor, have the right to make representations when their continued detention is being reviewed. This right should be made clear to the individual once the hour has passed. Equally, the difference between examination and detention must be made clear to the individual before the process begins so that they are aware of their rights at each stage. CAGE contends that continued detention without any review is unreasonable.
6) The introduction of a statutory requirement for training of examining and reviewing officers
It is important to make it clear that a review officer must not only be accredited to a nationally recognisable standard but must equally identify him or herself as such. It is important that individuals who are stopped are aware of who has the power to hold them under Schedule 7 and who doesn’t. CAGE recommends that all suitable officers have proof of accreditation available for the stopped individuals and their solicitor to see upon request.
Though officers may have been adequately trained, it does not detract from the fact that they have far too much discretion in exercising their powers as there is no requirement for reasonable suspicion nor anything to prevent officers from discriminating against individuals based on religion or race, two of the protected characteristics under the Equality Act 2010. Evidence of the discriminatory attitudes of officers has been highlighted by Al Jazeera in collaboration with CAGE; who aired secret recordings of a Schedule 7 stop, evidencing the racist views of officers who believed there to be a connection between black people and rape and violence.
We are further concerned by the broad discretion to interpret what constitutes ‘emergency’ circumstances. The provisions for non-accredited officers to use Schedule 7 powers when it is ‘believed…to be necessary due to exceptional urgent operational need’. This provision is not only vague but must be further clarified given that the MI5 have declared the current terrorist threat facing the UK to be ‘substantial’ which translates into a terrorist attack being a strong possibility. By this logic alone, it would be possible for officers to invoke such ‘emergency’ powers at any point.
7) The establishment of a statutory basis for undertaking strip searches to require suspicion that the person is concealing something which may be evidence that the person is involved in terrorism and a supervising officer’s authority
The Code essentially erases the test for any reasonable grounds for suspicion, and as a result it is open to abuse of interpretation. On this basis it should be entirely revised. The provision of conducting a strip search is an extreme invasion of privacy and as the Code states it should not be used as a “matter of routine”. CAGE is concerned that suspicion-led searches still opens the door for disproportionate use of this provision against certain faith and ethnic groups and argues that there ought to at least be reasonable suspicion of such concealment.
8) The repeal of the power to seek intimate samples (e.g. blood, semen)
CAGE welcomes the repeal of the power to take intimate samples, however further amendments are urgently required. The statutory requirement of taking non-intimate samples should equally be repealed as it essentially confirms the individual’s treatment as a criminal before they have even been charged with any offence.
It should be emphasised that unless the individual is arrested and they have been charged, there is no reason for them to undergo an inherently invasive procedure whilst simply being questioned, irrespective of whether it is intimate or not.
9) The express provision that an examining officer may make and retain a copy of information obtained or found in the course of an examination
This provision essentially allows the examining officer to invade a person’s privacy. It is worth pointing out that it must be recognised that this applies even to the most sensitive of information, as those who are questioned have to give ‘the (examining) officer any information in his or her possession which the officer requests for the purpose of the examination’. The provision points out that this includes the ‘duty’ of those examined to also provide the examining officers with electronic devices and their passwords. This provision is unnecessary, especially in the examination stage, and it is a means of further gathering intelligence that would otherwise not be obtainable. Especially given the fact that to be questioned under Schedule 7 in the first place, no element of suspicion is required, as David Anderson QC stated, this power has been “particularly useful in gathering intelligence”
Before legal representation is granted, the officers can still conduct a search of the person’s property and electronic items, this provision should be reviewed as it is very broad and can easily be abused by an officer without any cause for reasonable suspicion. The officers should wait until the individual has had access to legal advice so that they are in a position to understand their rights and the officer’s duties, especially in relation to their property.
Having personal data and documents copied seems an encroachment on one’s human rights. Further, there is no process in which the individual can ensure that such information has been erased and/or destroyed after a period which is deemed reasonable. Although the provision that interviews should be recorded is detailed in the code, it will not be applied until April 2015; further to this, despite the recording taking place, the individual has no right to obtain a copy. It should be amended to enable the individual or their solicitor the right to obtain such recordings upon request.
10) Do you have any other comments on the revised Code?
CAGE maintains the position that Schedule 7 should be scrapped altogether. The main concerns we have surrounding Schedule 7 include:
– the lack of reasonable suspicion,
– the disproportionate numbers of people stopped,
– the lack of evidence that mass stops have resulted in the prevention of crime or violence in the UK,
– the mass profiling of suspect communities, in particular the Muslim community,
– the ability to add people to the Police National Computer database without reasonable suspicion,
– the ability to obtain and store personal electronic data without reasonable suspicion.
It seems clear to us that the sole purpose of Schedule 7 seems to be profiling and intelligence gathering. We are also concerned with the way this information is then shared with other agencies and countries.
We call on those that have been profiled and questioned under the power to contact CAGE for assistance at email@example.com.