A campaigner prosecuted after refusing to hand over his mobile phone and computer passwords when police stopped him at Heathrow Airport has vowed to appeal to the Supreme Court, after the Court of Appeal ruled against him.
The trial is a major test case for Schedule 7 of the Terrorism Act 2000, controversial legislation that gives police powers to stop people, question them and inspect electronic equipment at ports and airports, even when there is no suspicion of any crime.
Muhammad Rabbani was convicted at Westminster Magistrates’ Court in London after a one-day trial in September 2017, in a case that will have implications for thousands of people stopped at UK airports and ports.
Rabbani argued in the Court of Appeal that he was entitled not to disclose his passwords to police, following a court decision in a separate case that acknowledged the confidentiality of journalistic material under Schedule 7 searches.
Lord Justice Stephen Irwin dismissed all grounds of the appeal today. He ruled that it was not self-evident that legal protections introduced to protect journalistic material under Schedule 7 applied to other categories of excluded material.
Ruling sets ‘dangerous precedent’
Rabbani, speaking after the judgment, said the appeals court had set a dangerous precedent.
“It now means that privileged material carried by lawyers, human rights activists and others is not safe, and trying to protect such information can now result in a terrorism conviction. We will be appealing this at the Supreme Court,” he said.
Cage describes itself as “an independent advocacy organisation working to empower communities impacted by the War on Terror”. According to its website, its “work has focused on supporting survivors of abuse and mistreatment across the globe”.
Muhammad Rabbani, Cage
Rabbani, from Bethnal Green in London, was questioned by officers from the Metropolitan Commands Port Unit at Heathrow Terminal 4 after returning from a wedding in Doha, Qatar, in November 2017.
He was arrested for wilful obstruction under Schedule 7 of the Terrorism Act 2000 after refusing to hand over the passwords to his iPhone and MacBook Air.
He told the court that his mobile phone and laptop computer contained notes and thousands of pages of documents relating to a client he had met in Qatar.
Last month, Cage released 35,000 documents detailing the case of Qatari businessman, Ali Saleh Kahlah al-Marri, supporting claims that he was tortured and abused by US officials during 13 years of incarceration in a detention centre in South Carolina. The group is now campaigning for the arrest of one of the alleged perpetrators.
“I knew at the time, when I refused my passwords, that I could be sent to prison. I remain convinced that preserving the principle of protecting torture survivors is the right thing, even if it carries penalties according to the law. What should concern judges and lawyers is that such a power as Schedule 7 exists in the first place – one that does not respect due process norms and can land an innocent person in prison for merely protecting privileged or confidential data,” Rabbani said after the verdict.
Confidential documents on PC support torture allegations, says Cage director
Rabbani says his laptop contained sensitive documents over the detention and torture of Qatari businessman Ali Saleh Kahlah al-Marri, writes Gamil Jassin.
Cage has published 35,000 documents, including prison logs and personal testimony, which claim that al-Marri suffered torture and abuse while being held in a US detention centre in South Carolina. Al-Marri was arrested in December 2001 and later declared an “enemy combatant” by George Bush.
The evidence presented against al-Marri by FBI officers included the ownership of an encyclopaedia bookmarked at US waterways, internet searches for toxic chemicals, printouts of hundreds of American credit card numbers and numerous trips to Pakistan where he was accused of attending Al-Qaeda training camps.
FBI agents suggested this was proof al-Marri was planning to poison lakes with cyanide and disrupt the US banking system, as well as claiming he was directly linked to Khalid Sheikh Mohammed, the mastermind of the 9/11 attacks.
Al-Marri has never answered the allegations, but in 2009 pleaded guilty in a civilian court to terrorism and was jailed for 15 years. After 13 years in detention, al-Marri returned to his home country of Qatar.
Despite his guilty plea, al-Marri asserts that his extended conditions of confinement left him with little choice other than to take a plea, in order to have any prospect of returning home to his family.
The torture techniques used against him outlined in the released documents include threats of violence against him and his family members, dry-boarding and psychological torture.
“Ali was also told that they were going to bring his wife and children and put them in the cell next to him, so he could hear them all crying, and he would not be able to help them,” noted one account of events on 6 February 2004.
Over the past four years, al-Marri has sought help from Cage to investigate his case further and clear his name.
By listening to al-Marri’s story, conducting its own independent background investigations and reviewing 35,000 pages of documentation, Cage said it was able to verify the identities and dates of those who were involved in various aspects of his torture.
Schedule 7 ‘fundamentally flawed’
Lawyers for Rabbani argued in the Court of Appeal on 3 May 2018 that Schedule 7 was “fundamentally flawed”, and that the code of practice used by police and enforcement officers lacked proper procedures to protect people from disclosing legally privileged and other excluded information.
Henry Blaxland, representing Rabbani, argued in legal submissions that the absence of the appropriate safeguards, coupled with the failure of the police to follow the code of practice, meant the request for disclosure of passwords for the devices was unlawful.
The police knew “perfectly well that Muhammad Rabbani was not a person who was engaged in the commission, preparation or instigation of an act of terrorism”, he said in legal submissions.
Blaxland said there was no dispute that Rabbani’s electronic devices contained material held in confidence, under the relevant provisions of Schedule 7.
He argued that police stopped Rabbani for “a collateral purpose”, such as to gain access to documents in his possession, which amounted to harassment based on the nature of his work.
“The court should have been able to review the material, if necessary in private with the defendants interested being protected by special counsel, on the grounds that the interests of justice require it,” said Blaxland.
No mention of confidential information before arrest
Lord Justice Irwin dismissed claims by Rabbani’s lawyers that a legal protection to journalistic material, acknowledged by the appeals court in the case brought by David Miranda, husband of investigative journalist Glenn Grenwald, applied in Rabbani’s case.
The Miranda decision was “expressly and narrowly” centred on Article 10 of the European Convention on Human Rights and freedom of expression for journalism, Irwin said in the judgment.
“It is by no means self-evident that identical (or even similar) considerations arise in respect of other categories of excluded or special procedure information,” he wrote.
The judge found that Rabbani initially told officers he would not answer questions because he had a right to privacy under Article 8 of the Human Rights Act.
He did not mention a duty of confidentiality until after his arrest and questioning under caution, the judge found.
Rabbani was not merely silent about excluded or special procedure material – he had made the positive assertion that he was refusing to hand over his password and PINs to protect his own privacy, he said.
The judge also rejected arguments that the police search was unlawful on the grounds that the police refused to give a reason for stopping Rabbani at Heathrow.
“It could not be the intention of Parliament that intelligence should have to be communicated, even in summary form, before the powers of stop and search should be exercised. That was clearly not practical and would frustrate powers,” he said.
The judge agreed with the lawyer for the Crown Prosecution Service, Tom Little, that it would be impractical to appoint a special counsel to review potentially confidential material before it is accessed by the police, saying that was a matter for Parliament to decide in legislation.
Rabbani ‘should have brought a judicial review’
If Rabbani wanted to challenge the use of Schedule 7 powers, he should have brought a judicial review, rather than attempt to bring the case through the court of appeal, the judge ruled.
Rabbani had issued judicial review proceedings, but had withdrawn them. He could also have appealed to the Crown Court, which would have allowed him to give fuller evidence of the events.
In 2015/2016, some 28,000 people were subject to examinations under Schedule 7, according to a report by the then independent reviewer of terrorism, David Anderson QC, which led to 10,000 intelligence reports. Police downloaded information from 4,300 devices belonging to 1,677 people.
The nature of the intelligence priorities meant that those who define themselves as Asian were several times more likely to be questioned and detained under Schedule 7 than their presence in the population would warrant, Anderson’s report said.
The greatest value of Schedule 7 is in supplying intelligence about terrorist threats, disruption and deterrence, and recruiting informants, said Anderson.
The number of examinations under Schedule 7 are falling, having dropped from 19,355 at the end of December 2016 to 16,349 at the end of December 2017, a drop of 16%, according to a later government report.
Rabbani said he had been stopped between 20 and 30 times at airports by police and members of the Security Service.
“Schedule 7 powers are draconian and intrusive, violating the personal and professional privacy of every doctor, lawyer, human rights defender, banker, business owner, or psychiatrist stopped at UK borders without suspicion. There is nothing like it anywhere else in the western world. Data collected from phones and laptops is routinely shared with GCHQ and beyond,” he said after the hearing.
Rabbani was given a conditional discharge and ordered to pay £600 costs and a £20 victim surcharge at a hearing before senior district judge Emma Arbuthnot.
The government added safeguards to the code of practice governing how police should conduct searches, in the wake of the landmark legal ruling in 2016 over the arrest of David Miranda during a stopover in London in August 2013.
The safeguards were introduced through a code of practice, which invokes sections 10, 11 and 14 of the Police and Criminal Evidence Act (Pace) to protect privileged information, journalistic material or material held in confidence acquired in the course of any trade, business, profession or other occupation.
March 2015: The government publishes a code of practice for examining officers under Schedule 7 of the Terrorism Act 2000.
20 November 2016: Muhammad Rabbani was stopped at 6.30am at Heathrow Airport, returning from an overnight flight from Doha, Qatar.
15 May 2017: After a long chain of correspondence, Rabbani’s solicitor agrees with Met Police to appoint an independent named counsel to review the material on Rabbani’s laptop and mobile phone.
17 May 2017: Rabbani is charged with an offence under Schedule 7 of the Terrorism Act 2000, and the plan to appoint an independent counsel to review Rabbani’s material is abandoned.
September 2017: Rabbani is found guilty of an offence under the Terrorism Act for refusing to hand over his mobile phone and laptop passwords to police at Heathrow Airport, during a one-day trial at Westminster Magistrates’ Court.
3 May 2018: Lord Justice Irwin and Justice Foskett reserve judgment after a one-day hearing in the appeals court.
15 May 2018: Appeal finds against Rabbani.