B e f o r e :
MR JUSTICE COLLINS ____________________
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Mr Tim Otty Q.C. & Mr Dan Squires (instructed by Birnberg Peirce) for the Claimant Dr Dijen Basu (instructed by Solicitors to the Metropolitan Police) for the 1st Defendant Mr Jonathan Hall (instructed by The Treasury Solicitor) for the 2nd Defendant Hearing dates: 5 December 2011 ____________________
HTML VERSION OF JUDGMENT ____________________
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Mr Justice Collins:
The claimant has anonymity because he is subject to a control order imposed under Section 2 of the Prevention of Terrorism Act 2005 and it has been decided that he should have anonymity in connection with that order. That anonymity has been properly extended to this claim. In it the claimant challenges the exercise against him by police officers at Heathrow Airport of powers to question and detain passengers arriving in, leaving or transiting this country to determine whether they appear to be terrorists within the meaning of the Terrorism Act 2000. The powers in question are conferred by Schedule 7 to the 2000 Act.
In the claim form and in his skeleton argument Mr Otty, Q.C. made wide ranging general submissions which sought to limit the circumstances in which the powers could be exercised. It is most important that the scope and extent of the powers as laid down in Schedule 7 should be determined and I have heard argument from all parties on that issue. All counsel accepted that the powers could not be used if the predominant purpose was other than that specified in the Schedule. In the end there was little between them since Mr Otty was persuaded that the extensive limitations on the powers for which he was contending in his written submissions were not appropriate. But it was and remained his case that on the facts the powers were not exercisable and so the detention and questioning of the claimant was not lawful.
I should first set out the relevant provisions of the 2000 Act. Section 1 defines terrorism in very wide terms. It provides as follows:-
Thus terrorism for the purposes of the Act includes action which falls within the definition in subsections (1) and (2) in any country in the world and which may be aimed at the government of that country whether or not it is likely to affect the United Kingdom.
Section 40 of the Act gives an even wider definition of 'terrorist'. By section 40(1) a terrorist means a person who has committed various offences created by the Act and in addition by s.40(1)(b) who "is or has been concerned in the commission, preparation or instigation of acts of terrorism". S.40 (2) provides:-
Section 41 empowers a constable to arrest without a warrant any person whom he reasonably suspects to be a terrorist. Section 43 provides that a constable may stop and search a person whom he reasonably suspects to be a terrorist to discover whether he has in his possession anything which may constitute evidence that he is a terrorist.
Schedule 7, which is applied by section 53 of the Act, is headed "PORT AND BORDER CONTROLS". So far as material for the purposes of this case, it provides as follows:-
There is under the Schedule an obligation to answer questions put and to co-operate in any search. Failure to comply is a criminal offence and, if the failure was deliberate, the offence is committed. There is no defence of reasonable excuse. The powers created by Schedule 7 are far reaching and, so far as the power to detain is concerned, affect the liberty of the person. Thus they must in principle be strictly construed and it is incumbent on the officer to inform the person that he is being detained and why. So much is established by various authorities, in particular Pedro v Diss [1981] 2 All ER 59, which concerned a power to detain conferred by section 66 of the Metropolitan Police Act 1839.
Schedule 8 of the Act deals with the treatment of persons detained under Schedule 7. Paragraph 1 enables the Secretary of State to designate places at which a person may be detained and any place so designated is to be regarded as a police station. The room in which the claimant was detained and questioned at Heathrow was not designated under Paragraph 1 and so was not a police station within the meaning of Schedule 8. Paragraph 6 provides:-
I should finally refer to Schedule 14 which deals inter alia with the exercise of his powers by an examining officer within the meaning of Schedule 7. Paragraph 4 provides:-
Equivalent provisions to those contained in Schedule 7 have existed for some time, initially to help to combat terrorism from Ireland. Their primary purpose was and still is, as Lord Lloyd stated in his 1996 report (Cm 3420), 'to deter terrorists from entering the United Kingdom and to catch those who try; and to collect intelligence on the movements of persons of interest to the police and the Security Service.' In his annual report as the Independent Reviewer of the 2000 Act, Lord Carlile of Berriew, Q.C. has observed and considered the exercise of Schedule 7 powers and their value in combating terrorism. I quote from his 2004 report, which was one before me, but I have no reason to believe that what he says there has needed any modification since 2004. in Paragraphs 115 – 116 he says:-
The evidence before me shows that 97% of all examinations last less than 1 hour. Only 0.05% last more than 6 hours. Thus in the vast majority of cases detention is not required and does not occur. Neither the Schedule nor the Code indicate with any degree of precision the circumstances in which detention will occur. If the officers decide to detain, the person concerned must be informed that he is being detained and why. This is done by means of a form TACT2. The Code states:-
The fact that detention is not used in the vast majority of cases where a Schedule 7 examination is considered necessary does not affect the correct construction of the powers since detention may be required. But it does show that usually the specific powers are not in fact needed. Most people would expect that they might be questioned at a port, particularly if seeking to enter the country. However, it does not in my view justify a wider scope being given to the exercise of the powers than is justified by the statutory language used. I would only say that I am not persuaded that the Code indicates or was intending to indicate the only circumstances in which detention would be applied. In the instant case, there is no suggestion that the claimant was other than co-operative, but, since the examination took just over 6 hours, he was detained. I suspect that will be the position with any lengthy need to examine. Paragraph 11 of the Code requires the officer to inform the person concerned that he is being examined under Schedule 7 and that there is power to detain if there is a lack of co-operation. After 1 hour, a form known as TACT1 must be served. This informs the person concerned that he is being questioned under Schedule 7 and what the officer's powers and his obligations are. He is also told that he can request that a friend is informed and that he can ask to consult a solicitor. It would, I think, be a little surprising, if the examination were likely to continue for any substantially longer time, that detention would not, even if demanded in the sense that the person concerned was unwilling to co-operate, be deemed necessary. However, that is not relevant to construction of the powers, but I shall have to return to it when considering a subsidiary ground of the claim relating to the claimant's request for advice from a solicitor.
Paragraphs 9 and 10 of the Code state:-
The wording of s.40(1)(b) is important. It in my judgment recognises that it must be open to an officer to act under Schedule 7 to determine whether a person appears to be or to have been concerned and to identify any acts constituting that concern. Thus, even if it appears that he has in the past been concerned in any such acts, it is open to the officer to examine him to determine whether he is still so concerned. Equally, it may be apparent that he is concerned in acts against a foreign government, but it must be open to officers to examine him to determine whether his acts affect this country or, indeed, any country other than that affected by his known acts. In the end, Mr Otty Q.C. did not challenge that an examination would be lawful in circumstances such as these.
It in my view goes further than those obvious requirements which are essential to fulfil the purpose of the Schedule 7 powers, namely the protection of the inhabitants of this (or indeed any other) country from acts of terrorism. If officers are informed by the Security Service or from any other source that a person, who appears to be a terrorist, is suspected of possible involvement with others in a specific terrorist plot, they may examine him for the purpose of determining whether he appears to be so involved. This is because the language of s.40(1)(b) is wide enough to allow for examination not only of whether he appears to be a terrorist but also of the way in which or the act by which he so appears. The officer is not, unless the powers are to be ineffective in their purpose to protect from terrorism, prevented from examining a person even if it appears he is a terrorist in particular respects, for example if in the past or by acts only affecting a foreign government.
Mr Otty submitted that once it appeared to the officer carrying out the examination that the person concerned was or was not a terrorist, the examination must come to an end. There are difficulties with this submission. First, the determination is not necessarily one for the examining officer. For example, searches may have taken place or samples taken and examination of anything obtained may show that an apparent concern in the relevant acts was not correct. It may therefore be important that all relevant information is obtained. Secondly, the apparent concern may be of past or particular acts amounting to terrorism and it may be important to see how far such concern goes. Thirdly, there may be a stage at which the officer is persuaded that the person concerned is a terrorist but further examination may dispel that view. It must be for the officer to judge when the examination should come to an end. No doubt his conclusion will then be forwarded to his superiors and the Security Service to see whether surveillance is required or there is sufficient to arrest under s.41. The officer himself has the power of arrest under s.41, but I would suppose that he would not save in the clearest case exercise that power. It might be necessary if the officer were satisfied that the person concerned was a danger and needed to be kept in custody, but that could sometimes be addressed by informing the Home Office who could then impose immigration or other controls.
Mr Otty was able to derive some apparent support from the Code for part of his submissions. In the notes for guidance on Paragraphs 9 and 10, this is said:-
It is to be noted that Paragraph 8 of Schedule 7 confers powers to search, 'for the purpose of determining whether [the person being examined] falls within section 40(1)(b).' This may prima facie suggest a higher hurdle for a search than that set out in Paragraph 2 of the Schedule. However, Paragraph 8 refers explicitly to the powers of an examining officer 'who questions a person under paragraph 2'. It would in my view be somewhat absurd if the same test were not applicable for the asking of questions and the powers of search. But if the officer has in his view grounds for pursuing an examination, in reality he would have the power and it would be lawful to search whether or not the words 'appeared to fall' were substituted.
The power of arrest arises if a constable has reasonable suspicion that a person is a terrorist. It may be thought that there is little difference between that state of mind and the appearance to the officer that the person is a terrorist. Mr Basu submitted that there is a difference and that it is possible for a person to appear to the examining officer to be a terrorist but for the officer not to have reasonable suspicion that he is. I am bound to say I find that supposed difference difficult to follow. But I do not think it matters since a power to arrest does not mean that there is an obligation to arrest. Furthermore, the officer may have reasonable suspicion based on his examination and any information he may have been given by the Security Service or from other sources. But he may be aware that a prosecution would not succeed because the evidence on which the reasonable suspicion is based cannot be deployed either because it cannot be divulged to the defendant since, for example, it would be contrary to the public interest to do so or because any admissions which might otherwise be relied on resulted from the obligation to answer questions put in the course of the examination under the Schedule 7 powers. In such circumstances an arrest would clearly be inappropriate. Schedule 7 powers are not conferred in order to enable an arrest to take place.
In the course of argument Mr Otty referred to paragraph 4 of Schedule 14 pointing out that it did not state that an examining officer could supply information acquired by him to the Security services. Paragraph 4 is intended to enable information which relates to matters other than terrorism which has resulted from an examination to be passed on. For example, a search may produce material demonstrating a criminal offence such as drug or other smuggling or fraud. Paragraph 4(1)(a) enables information to be given to the Home Office which is relevant to immigration. An example would be a forged passport or answers given indicating that the person was not entitled to entry under the Immigration Rules. There is no need to specify who can receive information about terrorism, since it is obvious that the Security Service, the police and the Secretary of State are proper recipients. In any case, s.19 of the Counter-Terrorism Act 2008 enables relevant information to be given to the security service by anyone.
Having set out how in my judgment the Schedule 7 powers can properly be exercised, I turn to consider the facts of this case. The claimant is a British national who left this country in 2007 for Somalia. On 14 January 2011 he was arrested in Somaliland. He was interrogated and, he asserts, severely ill-treated during his interrogation. The authorities there decided that he should be deported to the United Kingdom. In anticipation of his return to the United Kingdom, on 13 January 2011 a control order was made against him pursuant to s.2(1) of the Prevention of Terrorism Act 2005. On 13 January 2011 Silber, J gave the Secretary of State permission to make the order.
In order to justify the making of a control order, the Secretary of State had to have reasonable grounds for suspecting that the claimant was or had been involved in terrorism related activity and had to consider that it was necessary for purposes connected with protecting members of the public from a risk of terrorism to make a control order. Thus there had to be reasonable grounds for suspecting that the claimant's terrorist related activities constituted a danger to the inhabitants of this country. Before making a control order, the Secretary of State must consult the police to ascertain whether the person concerned is the subject of a police investigation with a view to prosecution and, importantly, whether there is evidence available which could be used for the purpose of prosecution. The police response in this case was in the negative.
On 11 March 2011 the Security Service posted to the police at Heathrow a message stating that the claimant would be arriving at 6.35 am on 14 March 2011. This supplemented what is known as a Ports Circulation Sheet of December 2010 which referred to the claimant and set out a summary of what was known about him. This summary stated that the claimant was believed to have taken part in various extremist activities in Somalia, including terrorist training and facilitating the travel of persons from the United Kingdom to undertake terrorist training. It set out 28 questions which it was suggested should be included in any examination of him if he returned to the United Kingdom. At that time, it was not known when he would be returning nor had a control order been made. It was, however, clear that it was suspected that he was a terrorist.
The purpose of the message sent on 11 March 2011 was to request the assistance of the police in relation to the return to the United Kingdom of the claimant. It was said that the senders would be grateful if the police would consider using their Schedule 7 powers to 'interview [the claimant] and gain intelligence about his time spent in Somalia and recent travel to Somaliland'. They were asked in addition to consider carrying out searches of his person and any luggage he might have. It explained that it was assessed that the claimant had been training in an Al-Qaeda camp and fighting for al-Shabaab and assisting extremists to travel to Somalia for terrorist training. Three named individuals were identified as his terrorist associates. It was said that he had been arrested on 14 January 2011 but the authorities had been unable to prosecute him and his associates there but the claimant was to be deported. There were then set out 118 questions which it was suggested should be asked if it was considered necessary to subject the claimant to a Schedule 7 stop 'to gain intelligence about his time spent in Somalia and his recent travel to Somaliland'. The police were asked in the message to 'make a full record of any complaints made by [the claimant] relating to his treatment in detention in Somaliland' but not to be drawn into any discussion regarding HMG involvement in his arrest. Interestingly, when asked about his treatment, he alleged serious ill-treatment but said he did not regard it as torture.
The officer who was responsible as Ports Duty Supervisor decided that the Schedule 7 powers should be used as requested. He explained the basis of his decision in his statement produced before me saying, in Paragraphs 7 and 8:-
Two officers carried out the examination. In Paragraph 4 of his statement, one of the two says this:-
Mr Otty made an application to cross-examine the two police officers whose statements were produced by the first defendant. The two issues which he said needed investigation by way of cross-examination were whether they had already determined that the claimant appeared to be a terrorist and whether the powers were exercised solely or predominantly not for the purpose of making such a determination but in order to provide information for the Security Service to use in the control order proceedings. Cross examination is rare in judicial review claims and is only allowed if there are factual issues which must be resolved if the claim is to be properly considered. That is not the case here. Mr Otty was able to assert that, even if they believed that they were entitled to exercise the Schedule 7 powers, in truth in the light of what they knew in advance and the nature of the request made by the Security Service they were not. Cross-examination would not have assisted, particularly as the good faith of the officers was not only not material if they were wrong but was not likely to have been established. Accordingly I refused the application.
It was accepted by the officers that the claimant did on the information available to them, in particular the existence of the control order, appear to be a terrorist. The request from the Security Service with the 118 questions was not likely to cast any doubt on that; quite the contrary. It was clear that the claimant was reasonably suspected not only to be a terrorist for what he had done in Somalia but was a danger to the inhabitants of this country. The request in terms was to gain intelligence about his time spent in Somalia and his travel to Somaliland. Thus there was no question of a determination being needed in respect of terrorism of a different nature to that which already appeared to exist.
Mr Otty submits that on the evidence the sole and certainly the predominant purpose of the examination was to provide information to the Security Service to assist it in the control order proceedings. The Security Service was aware that ill-treatment which might be regarded as torture had been alleged and so information obtained by the authorities in Somaliland might be inadmissible. It might help if questioning to which answers had to be given elicited any useful information.
Mr Basu submitted that the officers were entitled to question to find out more about the nature of his terrorism. Furthermore, since the determination did not have to be made by the examining officers (albeit the officer's statement rather suggests that it was his view that it was for them in the circumstances) any information might assist in establishing whether the view formed leading to the control order was correct. As I have already said, in principle how and the extent to which a person appears to be a terrorist can provide a lawful justification for a Schedule 7 examination.
However, all will depend on what the officers knew and why they decided to use their powers. Thus I do not doubt that they were entitled to establish that the claimant was indeed CC and the person the subject of the request from the Security Service, but that would not have involved more than a short examination. Beyond that, it is difficult to see what there was to determine since the Security Service and the police, who had been asked for their views pursuant to s.8 of the 2005 Act, had reasonable suspicion covering what he had done in Somalia and what he was expected to do in the United Kingdom if not subjected to a control order. The officer in Paragraph 4 of his statement accepts that the claimant appeared to him to be a terrorist from what he knew about him. His justification for the use of the Schedule 7 powers based on the need to determine whether he was in fact a terrorist is difficult to accept having regard to the questions which he was requested to and did ask.
While the officers may have asked a few questions which went beyond those 118 set out in the request, in essence they followed the script. As it happens, they got hardly anything of use since the claimant denied in some cases knowledge of and in all cases involvement in any terrorist activities with the various persons whose names were put in the questions in the request. In their report, the officers detail his allegations about his ill-treatment. While this might assist in the admissibility of evidence in the control order proceedings, it has nothing so far as I can see to do with the question whether he was a terrorist. When it was put to him that he was involved in al-Shabaab, it is recorded that, although he denied any such involvement, his "conversation and body language 'closed down'". The same applied when the name of a particular alleged terrorist with whom he had been, it was alleged, involved was put to him. This is said by Mr Basu to be of some significance and could help in the determination whether he appeared to be a terrorist.
I am afraid that I am satisfied that this was not a proper use of the Schedule 7 powers. It was clear that the Security Service for entirely understandable reasons was anxious if possible to get information which could not be regarded as tainted by any torture allegations or which might confirm the propriety of a control order. This had nothing to do with determining whether he appeared to be a terrorist in any particular way.
I have no doubt that this is a very rare case and that this decision will not damage the efficacy of the powers. They are properly given a wide construction for the reasons I have set out but cannot extend to the facts of this case.
I can deal briefly with further grounds which were raised in relation to a request made by the claimant for a solicitor. Paragraph 7 of Schedule 8 entitles a person detained at a police station to consult a solicitor. It is not clear to me why the Act limits the right to detention in a police station since, as this case shows, detention frequently will not be at a police station. It may, I suppose, have something to do with the knowledge that there are many ports in the country at which the powers can be exercisable. Some are remote and there may be unacceptable delays and difficulties if legal advice is sought save at a police station.
However, the TACT1 notice states that there is right to consult with a solicitor provided it causes no delay. The same information is given in the TACT2 notice but, once there is detention, it is said that a superintendent or above can authorise a delay. But each notice stated that such consultation or advice sought over a telephone would not be at public expense. When informed of this, the claimant did not pursue the request since he said he could not afford to pay.
It is accepted that the notices were wrong in stating that access to a solicitor would not be at public expense. Albeit Schedule 8 Paragraph 7 limits the right to detention in a police station, it will continue to be permitted wherever the detention is taking place. There is nothing unlawful in the decision to go beyond what the Act specifically allows in the interests of fairness to the person being examined.
It is incidentally difficult to see what contribution a solicitor could usefully make since there is an obligation to answer questions put and to submit to searches and the taking of samples can occur in the circumstances set out. A solicitor could perhaps act as an observer to ensure proper procedure, but beyond that he would have nothing to do.
In the circumstances, it is unnecessary to say anything more about this aspect of the claim.