‘In the light of the decision of the European Court of Human Rights in Gillan v United Kingdom on stop and search powers under the Terrorism Act 2000, the analogous powers of stop, question, search and detention in Sched. 7 of that Act are arguably also in breach of several Convention Rights.’
The police powers of stop and search are considered to be one of the most controversial police powers. They have been criticised in a variety of contexts and legislation, e.g. for their inefficiency to combat crime, and for their arbitrary application. The stop and search powers under s 44 of the Terrorism Act 2000 came under attack in Gillan v UK (“Gillan”), where the ECHR held that the police powers of stop and search were not in compliance with Article 8 ECHR (right to privacy), and may infringe Article 5 (deprivation of liberty). Sched. 7 of the Terrorism Act 2000 deals with border searches and questioning of suspects, and gives officials the power to stop, question and detain suspects for the purpose of determining whether they may be involved in the acts of terrorism. As with s 44 of the Terrorism Act 2000, there is no need for officials to have a ‘reasonable suspicion’ when searching or questioning someone.
This essay will argue that the statement above is essentially correct, i.e. after the decision in Gillan, there is every reason to suppose that powers contained in Sch. 7 of the Terrorism Act are also in breach of the ECHR. This is so despite the decision in Beghal v DPP, which expressly held that Sched. 7 of the Terrorism Act 2000 is not incompatible with Article 6 or 8 ECHR. Three main arguments can be put forward in support of this view: the broad powers contained in Sched. 7, which can potentially infringe the ECHR rights, the introduction of the Anti-Social Behaviour, Crime and Policing Bill 2013-14, which makes changes to the Sched. 7, i.e. the realisation by Parliament of the problem, and the criticism of the court’s reasoning and decision in Beghal v DPP.
It seems evident that the present arrangements of the Sched. 7 are inappropriate, and do not provide sufficient guarantees against arbitrary power of the state. Arguably, Sched. 7 contains very broad powers, which can match those of s 44 of the Terrorism Act 2000. Sched. 7 provides powers to stop, search and question, even though these powers may only be exercised on a limited class of people, i.e. those in a designated area, e.g. in an airport. S 2 of Sched. 7 states that ‘an examining officer may question a person…for the purpose of determining whether he appears to be a person falling within s 40 (1) (b), i.e. those which could probably be connected with terrorism activities. S 8 of the Schedule concerns searches and empowers an officer to search a person or anything he has with him. Further sections also deal with detention of property found during a search.
Although Lord Carlile stated that “a schedule  is an essential part of Britain’s border security”, and “it is a necessary and proportionate provision, [which] plays an important part in protecting national security”, Ratna Lachman said that such searches are often based on stereotyping and more checks and balances should in place. David Anderson QC also emphasised Sched. 7’s negative impact “on some Muslim communities”, and made a series of recommendations. There is some research support for his proposition. For example, Choudhury and Fenwick found the same negative effect of Sched. 7 on Muslim communities in England. Choudhury and Fenwick carried out focus group discussions as part of their study. They found that, with regards to Sched. 7 (stopping and questioning individuals at airports), many people reported being stopped and questioned on completely irrelevant issues, with some of them being provocative. Because police officers are trying to discern whether an individual has connections with a terrorist activity, Choudhury and Fenwick reported individuals being questioned on their religious and political beliefs, and questions about personal activities are not uncommon. Understandably, this may provoke anger and misunderstanding among Muslim communities, especially when they perceive that they are being targeted as a result of their looks, i.e. being dressed in a religious dress, and consequently as a result of their religious beliefs. In Choudhury and Fenwick’s study, one interviewee even reported that the information that officers were gathering was used to build a profile of Muslim communities, so that they can be controlled more efficiently by authorities. Evidently, this means that not only Article 5 and 8 of the ECHR can potentially be violated, but also Article 14. The implications of Article 5 ECHR’s engagement are also evident with regards to Sched. 7. Article 5 of the ECHR states that ‘everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law’. These legal qualifications, arguably, do not apply to Sched, 7, as the powers inherent in the provision are too broad and not altogether clear to be regarded as those prescribed by law, given that any law must be in accordance with the rule of law principle.
Despite the Code of Practice, which expressly forbids searches to be conducted based on a person’s religious or political affiliation or ethnic background, it is clear that there is a risk of discriminatory treatment here, and more accountability and greater transparency are needed. Even the previous domestic decision of R (Gillan) v Metropolitan Police Commissioner could be said to be based on unclear principles, and the judges may tried to ‘read down’ relevant provisions in this case. For example, it has been held in that case that no evidence was produced to say for sure that the powers rendered the public vulnerable to biased and arbitrary interference by officials. However, if no reason or intent is specified in the legislation which sets down the powers, it is only too evident that such powers are too broad and are bound to be used in such an arbitrary manner at least once in a while.
Moreover, the judgement in Gillan expressly states that an officer must first suspect someone of being a potential terrorist, and, as Sanders, Young and Burton argue, this is not “demanding requirement”. Thus, it may be argued that there is no real reason why that requirement (‘reasonable suspicion’) should not also be applicable to Sched. 7, which concerns the questioning and stopping people near the border. The designated area and the number of people may be smaller under Sched. 7, but the principle, surely, remains the same. This is especially so when we consider the fact that not answering questions or submitting to search is an arrestable offence, with the punishment upon conviction of three months’ imprisonment. Terrorism stop and search powers were also discussed by Lord MacDonald in his report to Parliament. His Lordship stated that stop and search powers must be limited to certain place and time, and, it is best if they are linked “appropriately to specifically anticipated terrorist activity”. However, it could be argued that when Sched. 7 is used the officers are hardly restricted to a terrorist activity and its anticipation, and the Code of Practice which specifically urges officers not to stereotype, does little in practice to combat the problem.
Sched, 7 involves the stopping and questioning of someone which, given the broad powers of the section, may be carried out on officers’ whim. However, the questioning to discern political and religious motivations of people, and its possible challenge under Article 8 has been emphasized elsewhere. In particular, some say that it may not be right to draw terrorism connotations from people’s religious and political views. Most Commonwealth countries use the requirement of “underlying purpose” to discern a terrorist activity. However, as David Anderson argues, this is not included in any UN definition, and it may endanger the suspect’s free speech rights and encourage racial tensions. Kent Roach also states that “the political, religious or other motives of the perpetrators should not excuse terrorism; conversely they should also not constitute part of the crime of terrorism”.
The final point is that the use of stop and search under the Terrorism Act 2000 damages the relationship between minority ethnic communities and the police. For example, the Police Complaints Authority found that “black people experience a different kind of dissatisfaction about stop and searches than do white people, and that the incidents that they are complain about are intrinsically different.” Thus, in terms of stop and search powers, those from ethnic minority backgrounds feel differently (more sensitive) about being stopped and questioned. In relation to discriminatory stopping and questioning, which may come within the remit of Article 14, the Roma Rights case provides an illustration. This case concerned immigration control at Prague airport. Many of those asylum seekers who were Roma (and also Czech citizens) were refused their application to stay in the UK. It has been alleged by the claimants that as a result of their origin they were questioned more intensively by the authorities and they had to provide more substantial evidence to prove their claims in comparison to those who were not Roma. In that case it was decided by the court that a policy of being more suspicious towards potential Roma immigrants, which immigration officers frequently practiced, violated rules against unlawful discrimination enshrined under the Race
The same discriminatory treatment may be seen in the application of Sched. 7 if the power under Schedule is used in a discriminatory manner. This lack of confidence in the police may deepen the desire of people to find their rights violated when they are being stopped, questioned or searched. This, in turn, can lead to an increase in the number of the ECHR claims brought.
Therefore, the main criticism of powers under s 44 of the Terrorism Act 2000 at issue in Gillan i.e. that their use was discriminatory, can apply to Sched. 7, regardless of the fact that the latter legislation is not used as broadly as s 44 of the Terrorism Act 2005 was used. However, even this proposition could be challenged as evidence shows that Sched. 7 is used on a massive scale in the UK, any other stop and search power that was in force before its enactment. For example, it was found that there were 56, 257 examinations involving powers under Sched. 7 in the year 2012 in England, Wales and Scotland. Moreover, around 2, 265 of these examinations lasted for more than an hour.
Important consideration is also a number of arrests that were made pursuant to Sched. 7. A recent report by the Home Office showed that there are about 20 arrests annually (2004-2009 figures), and the number of convictions is approximately 7 a year. Given so few arrests and the potential of Sched. 7 to infringe the multitude of the Convention Rights daily, it is questionable whether it is proportionate and in the public interest to maintain Sched. 7 without further amendments. Although the guidance to the Terrorism Act 2000 states that Sched. 7 “should only be used to counter terrorism and may not be used for any other purpose”, it is still unclear how far this Schedule is used to gather intelligence and control the movement of activist and researchers working in foreign countries. In that way, Sched. 7 may actually be more restrictive than any other power, as it specifically targets tourists and travellers. These allegations are not unfounded, as it has been reported by Corporate Watch in February 2013 that their personnel of researchers was targeted (5 times overall) under Sched. 7 of the Terrorism Act 2000, and the questioning by officers did not allegedly involved the issues of terrorism, but concentrated on protest groups and campaigns.
The Joint Committee on Human Rights also pointed out that Sched. 7 can potentially infringe both Articles 5 and 8 of the ECHR. In particular, the powers in Sched. 7, especially those requiring individuals to be stopped, detained and be questioned on their political and religious activities, were deemed to be too wide and to lack sufficient safeguards. Thus, in August 2013, the UK’s Independent Reviewer of Terrorism Legislation proposed a separate investigation into the questioning of David Miranda at Heathrow. It seems that what followed were Clause 132 and Schedule 8 of the new Anti-Social Behaviour, Crime and Policing Bill. The amendments will introduce restrictions to the existing power, and extend the already existing safeguards. However, it should be noted that, even if this Bill comes into force, important procedural safeguards will still be lacking, such as the requirement of reasonable suspicion. It is this requirement which may enable the powers to come within the definition of ‘prescribed by the law’ in the Convention Rights. Such organisations as Liberty are also of the same opinion, stating that the new powers would still “come nowhere near addressing the dangerous breadth and intrusiveness of these [already existing] powers.”
Gillan case stems from the previous domestic decisions in R (Gillan) v Metropolitan Police Commissioner. The case involved two people (one of whom was a journalist) who were stopped and searched during an arms fair. In domestic courts no incompatibility of the provisions in the Terrorism Act 2000 with the ECHR was found. Beghal v DPP involved a French national, who, while returning from France (where her husband was a convicted terrorist), was stopped and searched by authorities in the UK. Although in Gillan it was held that there was a breach of Article 8 following the use of stop and search powers, in Beghal v DPP, Sched. 7 was found to be not incompatible with Article 8. Arguably, it is difficult to distinguish Beghal v DPP and Gillan cases, and find consistency in the approach of judges. The court in Beghal v DPP stressed the underlying purpose of the Sched. 7, which is to protect the public from terrorism. However, it could be argued that the same purpose existed when s 44 of the Terrorism Act 2000 was still in force and produced the controversy in Gillan. Also, although the court in Beghal v DPP found the absence of requirement of ‘reasonable suspicion’ both explicable and justifiable, even this reasoning can be questioned, because apart from international character of the Sched. 7, there seems to be no major difference between the two provisions.
Article 8 (2) states that an interference with a suspect’s private life must be in accordance with the law. That law, supposedly, must be both accessible and compatible with the requirements of the rule of law. However, as in Gillan case and s 44 of the Terrorism Act 2000, in Beghal v DPP and Sched. 7 considerations, more emphasis should have been drawn to the fact that authorisation of search and questioning must not be ‘necessary’ for the officers to proceed. Without this safeguard of ‘necessity’, the powers under Sched. 7 are also vulnerable to abuse.
The most telling sign, however, that Beghal v DPP decision may not be altogether correct is the present Anti-Social Behaviour, Crime and Policing Bill before Parliament. If successful, the Bill will make changes to Sched. 7 and make powers of stop and search less biased.
In conclusion, it can be stated that there is every reason to suppose that in the light of Gillan v United Kingdom decision, the powers of stop and search contained in Sched. 7 are also in breach of several Convention Rights. There are few major differences between the powers contained in Sched. 7 and s 44 of the Act, and in terms of their broad application, and potentially draconian sentences when breached, they are the same. Therefore, there is no reason why Sched. 7 should remain unamended in the light of the amendment and further provisions enactment concerning s 44-46 of the Terrorism Act 2000. This is especially so since both of these measures can be used in a discriminatory manner, infringing not only Articles 8 and 5 ECHR, but also Article 14. The decision reached in Beghal v DPP can also be criticised for failing to draw important similarities with Gillan case.
Moreover, it seems that the idea that Sched. 7 can potentially breach several Convention Rights following Gillan case is becoming uncontroversial, since the Anti-Social Behaviour, Crime and Policing Bill, which purports to make changes to Sched.7 and make the powers therein less arbitrary is already in the reporting stage of the second house in Parliament. It can only be hoped that such provisions will be enacted. This will be a step in the right direction towards ensuring the protecting of human rights, while, at the same time, ensuring the safety of the population.
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