Thursday 20 February 2014
A Muslim man detained by police at an airport on his way home from the holy journey to Mecca, has won a significant legal battle over the UK’s anti-terror laws.
The high court declared that Abdelrazag Elosta was unlawfully refused access to a solicitor before he was detained and questioned under Schedule 7 of the Terrorism Act 2000. A judge ruled that Elosta had undergone “45 minutes of unlawful questioning”.
Allowing Elosta’s application for judicial review, Mr Justice Bean said: “The examining officers had no power to question the claimant after he had requested the presence of a solicitor and prior to the solicitor’s arrival.”
Government lawyers had been due to appeal against the ruling but on Thursday it was announced that the appeal had been withdrawn. Anne McMurdie, of Birmingham-based firm Public Law Solicitors, who represented Elosta, said: “We are delighted with the outcome of the case. This is a very important judgment confirming the existence of vital procedural safeguards for travellers in ports and airports detained and compelled to answer questions in circumstances where refusal to answer may result in criminal conviction.
“We are pleased that the government has had second thoughts and has taken action to amend the statute to make sure these rights are clearly spelled out, instead of continuing its fight through the courts to deny people at port and airports access to legal advice.”
Elosta arrived at Heathrow airport on 10 November 2012 in an organised group and was stopped by police officers for examination underSchedule 7. Mr Justice Bean said that the examining officers began to question Elosta and he provided his name, address, phone number and passport details. He asked, however, to speak to his solicitor in Birmingham before answering further questions.
An examining officer phoned the solicitor at 4.30pm and told her the questioning was likely to last 30-40 minutes. The examining officer said Elosta had “a right to consult a solicitor in private” but the examination would not be delayed pending her arrival.
The judge said Elosta was permitted to speak to his solicitor on the phone but not in private as officers remained in the room and could hear what he said, though probably not what the solicitor said.
The Metropolitan police commissioner, Sir Bernard Hogan-Howe, has now accepted that it was “inappropriate” for the examining officers to have heard what was said and apologised. Elosta’s solicitor told the examining officers she would arrange for a London solicitor to go to the airport but another officer came to the phone and repeated that the police would not wait for that solicitor’s arrival before starting questioning.
The officer said they would continue the examination at 5.30pm and would arrest Elosta if he refused to answer any question. Elosta’s solicitor called back at 5.26pm and asked for a delay until the London solicitor could attend but the request was refused and the warning about not answering questions repeated. The questioning began at 5.45pm and ended shortly before 6.30pm and Elosta was permitted to leave.
McMurdie said the government has now made late changes in the House of Lords to the anti-social behaviour, crime and policing bill 2013-14 to reflect the Elosta ruling by setting out expressly rights to legal advice.
She said the bill also reduces the time of maximum examination under detention from nine to six hours and provides that if questioning continues beyond one hour a person must be formally detained “and thus will have right to legal representation from that point”.
Source The Guardian