Response to Home Office Consultation Paper: REVIEW OF THE OPERATION OF SCHEDULE 7

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Schedule 7 is the widest ranging stop power in the UK which places an obligation upon people examined or detained under it to cooperate with the full extent of the powers applied against them. IHRC responded to a UK government consultation on the review of the operation of Schedule 7, and it is published here overviewing the continued discriminatory use of Schedule 7 by the UK Home Office.
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IHRC is deeply concerned with new Home office figures showing continued discrimination in the application of schedule 7 against. The figures for 2010/11 show that the targeting of Asian/African people under schedule 7 has in fact increased.

You can read the briefing below –

Response to Home Office Consultation Paper: REVIEW OF THE OPERATION OF SCHEDULE 7

1.     The Islamic Human Rights Commission (IHRC) has produced this response to the Home Office consultation paper.

2.     IHRC has extensive experience and knowledge of Schedule 7 powers.

3.     IHRC has received many complaints from members of the public about Schedule 7 examinations. IHRC has assisted many individuals to make complaints to the IPCC about the way they were treated during Schedule 7 examinations.

4.     The statement that best describes the IHRC’s views is: Schedule 7 powers are unfair and should be curtailed.

5.     Do you think that the maximum period of examination should be reduced or stay the same?

The IHRC feels that the maximum examination period should be reduced. The power to detain someone for 9 hours is unnecessary in light of the fact that only 3% actually last more than one hour. The maximum examining period should be cut to 2 hours. At the end of that period examining officers should either let the person go or arrest them if they have reason to believe the person has committed, or is about to commit a crime.

6.     Do you think that a supervisor should review the need to continue the examination?

A supervisor should review the need to continue any examination after 2 hours. The supervisor must have a reasonable suspicion or strong intelligence that the person meets the criteria set out in section 40 (1) (b) of the Terrorism Act 2000. Schedule 7 powers are not for intelligence gathering; they are to determine whether a person has/will or is taking part in terrorist activities.  If the supervisor has no intelligence or a reasonable suspicion, then the continued detention of a person to gather information, using Schedule 7 powers, will be an abuse of the powers[1].

7.     Should any examination which needs to exceed a set time limit require the person to be formally detained with the rights that go with that?

Yes, any examination going beyond the set time should require the police to formally detain the person and give him all the rights linked to formal detention.

8.     What do you think should be the maximum time an examination should last before the person is formally detained?

IHRC feels that the maximum time needed for an examination is 2 hours. This is sufficient time for the examining officer to determine whether the person falls under S 40 (1) (b) of the Terrorism Act 2000.

9.     Do you think that people who are detained under Schedule 7 should have access to legal advice (which may be publicly funded) when they are detained at a port, even if it extends the period of examination (within the legal timeframe)?

People detained under Schedule 7 should have access to publicly funded legal advice from the moment they are stopped, even if this extends the examination period. To avoid delays, a duty solicitor scheme should be implemented so that legal advice is always available, whether the legal advisor is based in the airport or via telephone.

10.  Should all questioning of those detained be recorded even if, due to practical considerations, this extends the period of examination?

All questionings of those detained should always be recorded, even if this extends the examination period. IHRC has been advocating this since Schedule 7 powers were first introduced. Recording interviews will allow greater accountability in the long run.

11.  If waiting for legal advice or securing recording facilities will delay the examination do you think that the maximum period of detention should be extended?

The examination period may be extended if getting legal advice or securing recording facilities will cause delays. But in all cases the actual examination/questioning period should not extend beyond 2 hours, at the end of which a supervisor should determine whether there is reasonable suspicion or strong evidence to detain the individual further.

12.  Do you think that Schedule 7 powers should normally only be used by officers trained to use them?

Yes, only those officers trained to use Schedule 7 powers should exercise them.

13.  Do you think that officers who have not been fully trained to use Schedule 7 should be able to use the powers under supervision of a trained officer in exceptional circumstances, such as after a terrorist attack or when there is intelligence to indicate an imminent terrorist attack?

No- all officers using Schedule 7 powers should be trained to do so. That means training a large pool of officers so that in an emergency there are sufficient numbers of officers with the skills to use Schedule 7, so that the police forces are not unprepared in an exceptional circumstance.

14.  Do you think that the Terrorism Act should be changed so that the examining officer should suspect the person is carrying something that will prove or disprove their involvement in terrorism or concealing an item which may be used to harm themselves or another before being strip searched?

The IHRC feels that the Terrorism Act should be changed so that the examining officer should have a reasonable suspicion or evidence that the person is carrying something that will prove or disprove their involvement in terrorism or concealing an item that may be used to harm themselves or another before being strip searched or prove / disprove his involvement in terrorist activities.

15.  Do you think that a supervisor should have to authorise the use of strip searches?

All strip searches should be authorised by a supervisor who has been satisfied that there is reasonable suspicion or evidence that the individual is carrying something which may harm himself or others or prove/disprove his involvement in terrorist activities.

16.  If a person declines to provide consent should a Superintendent be able to authorise the taking of biometrics (non intimate) at a port? Please explain your answer.

A supervisor should not be able to authorise the taking of biometrics (non-intimate). Biometrics should only be taken if a person is charged and should be treated the same as it would be in any other circumstance.

17.  Do you agree or disagree that the power to acquire intimate biometric samples should be removed? Please explain your answer.

IHRC agrees that the power to take intimate biometric samples should be removed. Currently, based on the complaints we have received, such samples are taken at the end of the examination period before a person is released. This shows that such samples are not being taken to identify people or to prove/disprove their involvement in terrorist activities but for data collection.  The rules for intimate samples should be the same as it is for any other crime. Schedule 7 powers should not be used to bypass due process and safeguards afforded to people in other circumstances.

18.  Do you think that the examination process could be improved in any other way?

The IHRC would like to make the following recommendations to improve the examination process:

a.    Officers should always explain the process to those who are stopped. While officers are required to do this currently, IHRC routinely receives complaints about officers not doing this. We have had complaints where officers tried to justify not explaining the Schedule 7 process by claiming that they did not want to scare people by explaining the process to them.

b.    There needs to be greater accountability when officers abuse Schedule 7 powers.

c.     The examining officer should avoid irrelevant questions which do not in anyway help determine whether the person is involved in terrorist activities. IHRC has received many complaints, where individuals have been asked questions like: Which political party they voted for in the election, their opinions about democracy, intimate details of their marital life, where they pray and other such questions that do not help determine whether the person is or is not taking part in terrorist activities and does not have any national security interest.

19.  Do you have any other comments that you would like to make about the use of Schedule 7?

1.     For over eight years, IHRC has catalogued numerous incidents of Examining Officers abusing their positions and their powers at ports of entry and exit. In our last consultation response, the IHRC reported that the vast majority of the individuals who have been subjected to such abuse have been or have deemed to have been members of the Muslim community, indicating that a policy of religious and/or ethnic profiling is in place, either officially or unofficially.

2.     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 had been complaining about since the introduction of Schedule 7; the disproportionate targeting of Asian and black communities. 



3.     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 you 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%. Even though Asians make up 5% of the UK population, black people 3% and others 1%. White people make up 91% of the population.

4.     Figures for 2010-2011, released on 13 October 2011, show a 23% fall in the overall number of people stopped under Schedule 7. But when the figures are broken down you 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%. 




5.     The figures for 2009-2010 and 2010-2011 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 by combining multiple national and ethnic groups under one heading, we are unable to determine the ethnic/national origins of the people under this heading and make clearer assessments regarding racial as well as religious profiling.

6.     The figures indicate that the police are targeting people who are perceived to be Muslim. This despite a recent Europol report stating that the vast majority of terrorist acts in Europe are perpetrated by people of European ethnicity, promoting various secular causes.

7.     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.

8.     Although Guidance Note 9 warns that decision 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.

9.     This lack of objectivity allows for the opportunity for Examining Officers to be influenced by their own biases and prejudices and to subsequently carry out a policy of religious and/or ethnic profiling. This can be seen in the statistics mentioned above as well as a high profile case that was reported in the newspapers:

http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/8814582/Terror-checks-at-Heathrow-were-racist-claims-officer.html#

10.  Some Examining Officers have informed IHRC, under the condition of anonymity, that part of their brief involves using their powers as a “fishing expedition” for general intelligence. This is of great concern to IHRC, not only because it contradicts the stated purpose of officers’ powers under Schedule 7, but also because of the high likelihood of it leading to religious and/or ethnic profiling.

Detention and Examination

11.  IHRC frequently receives complaints about the nature of questioning used in the examination of detained individuals.

12.  Some of the anecdotal evidence that IHRC has collated show that the type of questioning used frequently by examining officers involves asking about the detained individual’s attitudes towards Britishness, their loyalty to the Queen, and irrelevant questions about their study, work and associates. Other types of questioning have included which mosque the individual prays in, whether they believe in democracy and who they voted for in recent elections. Some individuals have even been asked provocative questions about their private marital relations. In certain cases, detained individuals have been asked to provide the Examining Officers with notes they had taken at international conferences they had attended, indicating that the detention was not for the purpose of ascertaining whether the individual was involved in the commission, preparation or instigation of acts of terrorism, but to simply gather general intelligence.

13.  Questioning of the above type is of no benefit to anyone, least of all to national security. It only serves to alienate, marginalise and frustrate an increasingly discriminated against community.

14.  IHRC is further concerned by growing anecdotal evidence it has received that examining officers have bullied detained individuals and been verbally aggressive and abusive during examination, in order to intimidate the detained persons. Some detained persons have been made strip down to their underwear; others have been told they will never see their wife and children again.

15.  Please find attached an appendix detailing some of the accounts reported to IHRC.

16.  IHRC believes that no complaint or query, by a passenger, can be effectively investigated unless full details of the examination are included in the records. This would require all examinations to be audio and/or video recorded, with the material retained for at least 3 months. This time period will allow complainants time to return from abroad if travelling out from the UK to lodge their complaints.

17.  One aspect of examinations, which the majority of those detained under Schedule 7 have reported, is that examining officers have attempted to recruit them to work for the Security Services. More often than not, such offers of recruitment have been made at the tail end of the examination, suggesting that the officers had no basis for the initial detention, other than recruitment. This is very concerning and provides little assurances that detention and examinations are taking place in good faith.

18.  IHRC also recommends that third party reporting be actively encouraged and that the contact details for various community bodies with expertise in this field be given to individuals subjected to examination and detention.

Fingerprints, DNA

19.  IHRC is concerned at the anomaly in the law whereby police officers are generally prohibited from taking DNA samples of an individual who are not under arrest, yet at ports of entry and exit, examining officers, who may not even be police officers, have the power to forcibly take such samples of individuals who are not under arrest.

20.  IHRC believes that the issue of ‘consenting’ to one’s fingerprints and DNA being taken is purely fictional. By giving a detained individual the “choice” of providing written consent to their fingerprints and DNA being taken or being taken to a police station where a superintendent will authorise the same, is not a choice at all, particularly where one is travelling and may risk missing his/her flight as a result.

21.  In all of the cases reported to IHRC in which DNA samples have been taken, the samples were taken at the end of the examination, suggesting that the purpose of taking the samples was not to ascertain whether the detained individual was involved in the commission, preparation or instigation of acts of terrorism, but simply to add it to the existing DNA database.

22.  IHRC hopes that the government will abide by the decision of the European Court of Human Rights in S. And Marper v UK and destroy records of any fingerprints or DNA collected from detained individuals who are subsequently released without charge.

23.  IHRC further recommends that examining officers provide detained individuals with information on how to apply to have their samples removed from the DNA database, in light of the ECHR ruling.

Property

24.  IHRC is deeply concerned at the retention of large sums of money from detained individuals, which is sometimes retained for lengthy periods of time before being returned. Often, this money is confiscated while individuals are released to travel abroad to their chosen destination. In releasing them, examining officers are indirectly accepting that they are not concerned in the commission, instigation or preparation of acts of terrorism. Consequently, the retention of their money is an arbitrary penalty designed to inconvenience and disturb the individual. Where individuals are released, their money should also be returned to them immediately.

Compensation

25.  IHRC is also deeply disturbed by reports that individuals, who have missed their flights due to being detained and examined, are not put on later flights or offered any form of compensation. Several detentions have involved Muslims making the Hajj pilgrimage to Mecca, a once in a lifetime journey for which they have spent thousands of pounds. IHRC recommends that examining officers should endeavour to complete their questioning in time for the detained individual to board his/her flight and should this not be possible, those individuals should be placed on later flights at the expense of the government.

Further Recommendations

26.  IHRC recommends that a community panel be established to monitor and review how Examining Officers are exercising their powers and the impact the legislation and its implementation is having on minority communities. IHRC suggests that the ideal structure of such a panel be based on the existing Home Office Stop and Search Community Panel Action Team.

Islamic Human Rights Commission

PO Box 598


Wembley


HA9 7XH


United Kingdom

Telephone (44) 20 8904 4222


Fax (44) 20 8904 5183



info@ihrc.org

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APPENDIX OF CASES


Case Study 1:

On Mr A’s return to London from Pakistan he was detained in the airport and was asked about his visits to Pakistan, Afghanistan, Syria and Lebanon.

As he had completed an MA in Middle Eastern studies, Mr A visited Syria and Lebanon to work on his language skills. These trips, as well as working in a political think-tank in Islamabad and going to Afghanistan to work with an international aid agency, appeared to him to have clearly brought him to the attention of MI5. He was asked about his sense of Britishness and how he felt about the Queen. The officers then took Mr A’s DNA samples. By the time he was allowed to leave, he had been inconvenienced and insulted.

A few weeks later when returning from Berlin to the UK, Mr A was detained again. He was less patient on this occasion and demanded to know whether this would happen every time he travelled. He was then given the option of working for MI5 and told that he should consider it seriously.

Mr A stated that the officers’ behaviour made him feel like a foreigner as they were constantly telling him ‘You’re not British’. Mr A later enlisted the support of his MP and the advice of his solicitor regarding the taking of his DNA and the inappropriate questions which he believes were an abuse of power as he has never before been under suspicion of terrorist activities.

Case Study 2:

Mr. B was travelling back from Tunis. Mr. B was questioned at the airport for 4 hours. Mr. B was asked about his views in relation to the British Government’s support of Israel. Mr. B was also asked his views about Hamas. Officers took DNA, photographs and fingerprints of Mr. B.

Case Study 3:

Mr. C was stopped at Heathrow airport Terminal 4 for 45 minutes and questioned by officers who identified themselves as being with MI5. They asked him questions and to identify people in several photographs. They then gave him a telephone number and asked him to call them and gave him £20 to travel to a further meeting. He was told not to tell anybody but he informed the officers that he would be telling his immediate family.

Mr. C called the MI5 officer on Saturday and told him to call back on the following Monday to arrange a place for the meeting for the next day.

Mr. C also told the officer that his sisters would be accompanying him to this meeting. The officer agreed to this as long as his sisters do not sit close enough to hear their conversation.

Mr. C contacted a solicitor who advised him that he did not have to speak to the MI5 officers; however, the officers contacted him again and tried to persuade him to come to a meeting. Mr. C contacted the solicitors again and was told to give their telephone numbers and the MI5 officers to get in touch with them directly.

He followed his solicitor’s instructions and the officers again tried to talk him out of it by saying: “there was no need for to go through solicitors as they could be very costly; especially since you know ‘you are not in trouble’; you only know 10% of the story so it’s best that we meet to discuss further . . . .” Mr. C replied that he was only following his parents’ and his solicitor’s instructions – they tried once more to persuade him to no avail.

Case Study 4:

Mr D arrived in Heathrow, Terminal 3 travelling from Sweden. At Passport Control, Mr D was served by a lady who was not convinced with the authenticity of his passport. She repeatedly asked ‘Is this your passport’. She called her colleague who appeared to confirm everything was above board. The lady remained unconvinced.

Mr D asked her to check the passport properly and she would be satisfied as to its authenticity. The lady requested him to sit down.

After 30-45 minutes, 3 individuals wearing ‘office clothes’ took Mr D to an interview room. One was later identified as ‘Jones’.

Mr D was searched and asked to take off his trousers. He initially refused, but due to pressure, he was on the verge of complying, but was told it wasn’t necessary and to sit down.

Mr D was told that he would be asked a series of questions, and if he refused, he would be arrested. Mr D was asked for his full name and details including his date of birth, his occupation, how he came to the UK.

The officers began looking through the pages of his passport. Handcuffs were brought out and Mr D was threatened with arrest if he failed to answer these questions. Mr D was unsure about what he had done wrong. Further questions asked were as follows, why and when did you go to Turkey? Have you been to Fallujah? What is going on there? Have you been to Baghdad? When did you get married? Why did you marry in a Church? Did you convert to Christianity?

Throughout the questioning Jones continued to say ‘I don’t like this guy’.

The immigration officers then insisted that Mr D sign some papers. Mr D did not understand the contents of the papers and was under pressure to sign. The immigration officers said amongst themselves ‘lets get him under 28 days’. Mr D then signed the documents.

After making a phone call to the police, the officer’s attitude changed and Mr D was told he would be sent home soon. Mr D believes that the police refused to get involved in the matter.

Mr D was escorted outside to look for his luggage and then shown the exit by the immigration officers. In the meantime, Mr D received a call from a solicitor, advising him to leave as soon as possible and to make a complaint later.

The immigration officers spent their time laughing at and making fun of Mr D. They continued to ask him ridiculous questions in a loud voice, in front of a large number of people and made accusations related to Fallujah and him allegedly being wanted by the CIA and FBI. This made Mr D feel humiliated in front of the large number of spectators.

The consequences of this are that Mr D is now routinely stopped at airports, as he later discovered when he attempted to go on holiday with his family.

Case Study 5:

Mr. E is a journalist for a television channel. His mother was questioned at the airport. She was stopped at the first point of entry and taken to a dark room. She was asked about her son’s activities. She was asked why she was going to Pakistan. Officers said to her that ‘if your sons want to do something, they’ll listen to you.” She was held for 5-6 hours. She was denied access to a solicitor while she was questioned. Her fingerprints, palm prints and a swab of the back of her mouth was taken. She was moved from room to room.

The experience upset her greatly. As she missed her flight, the officers sent her back home in a cab. While officers were questioning his mother, MI5 agents rang Mr. E asking him to meet them for a coffee. At this point Mr. E had no idea his mother was being questioned.

Case Study 6:

Mr. F and his wife and two children were travelling to Ireland from Stanstead Airport. His daughter has a disability that requires her to have special milk. Mr. F had a letter with him issued by the health authorities confirming this. At the security gate the family were held for 40 minutes resulting in their missing their flights. Their luggage was searched.

Officials threw away most of the special needs milk telling the family to get it from the country of destination despite them producing the letter issued by the NHS. Mr F’s wife was also asked to drink the milk.