By Senior Campaign Agent Alasdair Fraser
Under Schedule 7 of the Terrorism Act 2000, police can stop, examine, and search passengers at UK ports, international rail terminals, and airports. Unlike other police procedures for stop and search, these powers require no “reasonable suspicion” of terrorist involvement, and there is little recourse for ‘improper’ or ‘arbitrary’ detention. Between 2009 and 2016, British authorities carried out over 400,000 examinations of passengers under the Schedule, with 370 people in the UK facing terrorism-related charges during that period (0.09 per cent) – although, the figure is likely lower because not all of those charges were the fruit of the powers.
The powers allow examining officers to hold passengers for up to six hours without arrest and to compel those detained persons to provide any information they possess that is requested by the officer – often passwords to electronic devices, decryption keys for secure data, and anonymous or privileged information held securely to protect vulnerable or otherwise legally protected individuals. Furthermore, biometric information such as fingerprints and DNA samples can be taken and retained, regardless of the outcome of any investigation, with these personal data being placed on the same database as convicted terrorists.
Belongings of detained passengers can be held and searched for up to seven days and officers have the authority to download and retain data from electronic devices (generally mobile phones and laptops), which they can then hold indefinitely. Additionally, evidence suggests that this data is transmitted to Government Communications Headquarters (GCHQ) – the British government’s version of the American National Security Agency – for analysis or decryption; even in the absence of passwords or consent from the detained passenger.
Documents obtained by The Intercept from whistle-blower Edward Snowdon, show that GCHQ employees were able to search this information freely, and that the data formed part of a mobile phone data collection program codenamed PHANTOM PARROT, which itself was an integral part of the larger GCHQ surveillance dataset LUCKY STRIKE.
Schedule 7 has also received intense criticism for what some have described as ethnic bias, where men of Asian minority ethnicity are most likely to be stopped – at far greater proportions than they are represented in the population. This has particularly impacted the Muslim community, with the Equality and Human Rights Commission commenting that searches under the Schedule had become “a routine part of [Muslim] travel experience” and that it was “eroding Muslim communities’ trust and confidence in policing.”
David Anderson QC, the lawyer in charge of conducting an independent review of the legislation, saying “People should not be stopped, let alone examined, simply because officers are present and have nothing better to do.” However, the Home Office argues that Schedule 7 “forms an essential part of the UK’s security arrangements” and that it was up to the police to decide when it was appropriate to use the powers.
Despite the government’s position on Schedule 7, several high-profile detentions have cause considerable controversy and led to calls for safeguards on the broad powers.
The Case of David Miranda
David Miranda, a Brazilian local government official, and partner of journalist Glenn Greenwald, was detained in Heathrow airport in August 2013 and interrogated under Schedule 7. Mr Miranda had been assisting Greenwald with reporting on documents provided to The Guardian by NSA whistle-blower Edward Snowdon.
Despite a court later finding that Miranda’s detention was lawful, the Terrorism Act from which the Schedule draws its power was deemed incompatible with European human rights legislation – indicating that while police acted according to the law, the law itself was illegal. Lord John Dyson, Master of the Rolls (the second most senior lawyer in the UK) said: “The stop power, if used in respect of journalistic information or material, is incompatible with article 10 [freedom of expression] of the [European convention on human rights] because it is not ‘prescribed by law’.”
The ruling additionally rejected the overly broad definition of terrorism offered by the government. Moreover, the lawsuit provided the basis for amendments to the powers, chiefly increasing safeguards and oversight – though some argue these did not and do not go far enough.
Muhammad Rabbani, the international director of Cage, a British non-governmental organisation (NGO) founded in 2003 to raise awareness of the plight of detainees at Guantánamo Bay and more broadly to expose the breakdown of the rule of law in the War on Terror, fell afoul of Schedule 7 powers earlier this year when returning to the UK from a meeting with a former detainee in a Gulf state.
Rabbani was no stranger to stop and searches on his return to the UK, facing police scrutiny on many prior occasions since 2008. However, this time things were different. The tone taken by officers was more pointed, and their request more worrying. Aware of the developments following the Miranda case, Mr Rabbani felt police were overstepping their recently narrowed authority when they requested passwords for his electronic devices, which contained, among other private information, sensitive and confidential materials relating to his work with vulnerable individuals.
Police ignored his arguments that what they were doing was not right, and when an impasse was reached he was handcuffed, escorted to a van and driven to a nearby police station where he was later released on bail after having to wait nine hours. Unlike lawyers and journalists, as a member of an NGO, Mr Rabbani has no legal additional legal protection for information in his possession – police require a court order for the former two.
Mr Rabbani was charged in May with obstructing or seeking to frustrate a Schedule 7 search, and faces up to three months imprisonment and a fine if convicted. However, what is surprising about the Rabbani case is that after so many stops under the powers, police chose to charge Mr Rabbani this time – just as scrutiny of Cage has reached an all-time high amid the rise of so-called Islamic State.
Speaking to The Intercept, Mr Rabbani indicated that he believed he was targeted because he fit a racist profile, and that his access to justice is hindered by bias. However, he will have a chance to address some of his concerns during his upcoming trial.
Book Police – Arrested for reading
Faizah Shaheen, a British Muslim who works as a psychotherapist for the NHS in Leeds, was detained last summer when returning from her honeymoon in Turkey.
She was stopped by police at Doncaster Sheffield airport and held for 15 minutes under Schedule 7 after a member of the cabin crew on her outbound flight had reported her for reading a book on Syria – Syria Speaks: Art and Culture from the Frontline. The collection of essays and stories has absolutely nothing to do with the spread of terrorism, and the fact that Shaheen was detained led an editor at the book’s publisher to describe the arbitrary stop as a “despicable incident.”
It is incredibly dangerous for free expression when the simple act of reading a book with a hot-topic word in the title can get you detained under counterterror powers – which often lead to individual’s names being added to ‘lists’ with very little oversight.
The Jones Twins
Eleanor Jones, a German-based political activist and twin sister of Owen Jones, a Guardian columnist and left-wing activist, was held by Police Scotland at Edinburgh airport when trying to return home from her grandfather’s funeral earlier this year.
Authorities quizzed the activist over the political views of her family and her activism, notably about her participation in the anti-G20 demonstrations in Hamburg earlier in the year.
Jones was compelled to release her mobile phone and laptop passwords to police, as well as a DNA sample and was released without charge. They claimed that although the stop and search had caused her to miss her flight, there was “no legal basis for reparation.”
Labour MSP Neil Findlay commented that the arbitrary detention of Ms Jones, coupled with the lack of compensation and confiscation of data were “completely unacceptable.”
While the intent behind Schedule 7 is to root out terrorists, using their entry into the country as a chokepoint, there have been a growing number of cases where the powers have been used to target activists and journalists for harassment, chilling free speech and damaging the assumed confidentiality of privileged or otherwise sensitive information.
Sources and Further Reading
- David Miranda Row and Schedule 7, BBC, (19 August 2013)
- Schedule 7 Stops Under the Terrorism Act 2000, Stop Watch, 24 October 2012
- Owen Bowcott, A court has ruled that Britain's Terrorism Act is incompatible with human rights, Business Insider UK, 19January 2016
- Ryan Gallagher, Airport police demand an activist's passwords. He refused. Now he faces prison in the UK. The Intercept (September 23 2017)
- Lizzie Dearden, Man convicted of terror offence for refusing to give police phone and laptop password, The Independent, 26 September 2017
- Sian Cain, British woman held after being seen reading book about Syria on plane, The Guardian, 4 August 2016
- Paul Hutcheon, Police Scotland refuses to pay £70 flight bill caused by detention of political activist Eleanor Jones at Edinburgh Airport, The Herald Scotland, 22 October 2017
- Cage, Know your rights: Schedule 7, Cage (2 February 2015)
- David Allen Green, Nine hours in the life of David Miranda, Jack of Kent blog (19 August 2013)
- Diane Taylor, Met police investigating Muslim man's wrongful arrest over terrorism, The Guardian (3 April 2017)
- Faizah Shaheen, I was held after reading a book on a plane – we need to rethink our terror laws, The Guardian (15 August 2016)
Image: Alan Coleman @ Flickr
N.B. This article was amended in February 2018 to reflect the fact that examining officers can only hold passengers for up to six hours, not nine, as previously stated.