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Police unlawfully used controversial terrorism legislation to question and detain a 37-year-old British Muslim, despite evidence on police computer databases that should have shown he had no connection with terrorism, a court heard last week.
Muzaffar Abdullah, from Brixton, London, was arrested at Heathrow Airport on 13 March 2018, while travelling with three young children, and charged with wilful obstruction under the Terrorism Act 2000 when he refused to answer questions from police.
The case is the latest test of Schedule 7 of the Terrorism Act 2000, which gives controversial powers to police and border officials to stop and question people at ports and airports, and to download data from their phones and computer equipment, without having grounds for suspicion. People questioned have no right of silence.
It comes only weeks after Muhammad Rabbani, director of the human rights group Cage, lost an appeal against his conviction under Schedule 7 for refusing to hand over the passwords to his computer and mobile phone, in a case that will have implications for thousands of people stopped at UK airports and ports. There was no suspicion that Rabbani was involved in terrorism or criminal activity.
Westminster Magistrates’ Court heard last week that Abdullah had been stopped and questioned at least 10 times previously under Schedule 7 at airports and ports. His defence team argued that police should have known from records of previous stops that he had no connection with terrorism.
Abdullah stopped multiple times
Abdullah, of Craster Road, Brixton, took the witness stand dressed in a light-grey polo shirt and light-grey trousers, before the chief magistrate, Emma Arbuthnot.
He told the hearing at Westminster Magistrates’ Court on 22 June that he had been stopped multiple times for questioning under Schedule 7, and that police frequently downloaded information from his electronic devices. Abdullah said the stops increased in frequency when his family moved to Egypt in 2012.
“Each and every time, I explain to officers I have family here and this is why I am travelling,” he told the court. “They only ask the same questions – Why are you going to Egypt? and Where do you pray?”
Abdullah, who changed his name after converting to Islam, told the court that, on the day of his arrest, he had been travelling back to the UK with his three young children after spending time with his wife in Egypt, who had given birth to a disabled child.
“The whole background was I was coming in and my emotions were high,” he said. “I approached the desk. The immigration officer [asked if the] children [were] mine. I said, ‘You can look in my passport’, by which time [a counter-terrorism police officer] was on my shoulder. He said, ‘I need to speak to you’. I said I was with my children. He said, ‘I will take your children away’,” Abdullah claimed.
“His presence was very aggressive. I was with my children. I am the guardian of my children, and he did not give me a reasonable answer about what would happen to my children. The officer was putting his hand on my shoulder and I tried to step back,” he told the court. “Out of nowhere, there were loads of officers, and they were all trying to wrestle me down to the ground to put cuffs on me.”
Repeated police questioning
Muzaffar Abdullah told the court that he had been stopped at least 10 times for questioning under Schedule 7 of the Terrorism Act – a claim which has not been disputed by the prosecution. He kept evidence of some of the stops, which he presented in court:
2011: Abdullah is stopped for the first time under Schedule 7 of the Terrorism Act 2000 at Folkestone. He told the court he was questioned by police for two or three hours, after working with a colleague who was buying goods from the Metro supermarket in France to bring back to the UK.
2011: Abdullah is questioned under the Terrorism Act after returning from Jamaica to visit the grave of a family member.
2012: Abdullah’s family moves to Egypt. From this point, Abdullah told the court he was subject to regular stops and police questioning when returning from trips to visit them.
2014: Abdullah was stopped by police at the immigration desks in Heathrow Terminal 3 after returning from Egypt, according to evidence presented in court. He accuses police of singling him out because he is a Muslim. Police apparently offer to remove him from the database to prevent further stops.
2015: The court was shown a detention notice, proving that Abdullah was stopped and questioned in this year.
2017: The court is shown a photograph of two red Schedule 7 information leaflets, proving that Abdullah was stopped at least two more times before the date of the photograph.
2018: Abdullah is arrested under Schedule 7 of the Terrorism Act and charged with wilful obstruction when returning to the UK with his Egyptian children, after his wife had given birth to a disabled child.
Defence: Stops ‘had no lawful basis’
Mark Summers QC, for the defence, told the court that the police had no lawful basis for stopping Abdullah. They had gathered information about him during repeated earlier stops, which should have demonstrated that Abdullah had no connection with terrorism, he said.
“The evidence you have is that there have been numerous stops, formulaic questions and full cooperation. His devices have been searched, his property searched,” said Summers. “We have heard that he had been identified in advance because he was on a [database] list.”
“By March 2018, there is no lawful purpose [for stopping Abdullah]. The only statutory purpose is for an officer to determine whether he had been involved in terrorism. That had been done time and time again. And the police know the answer,” he said.
Mark Summers QC
Summers told the court that police had used Schedule 7 in a “Kafkaesque way” to repeatedly stop the same individual.
“It is not Schedule 7 that Mr Abdullah objects to, it is the arbitrary stopping of the same person again and again. It must reach a point where the lawful purpose of the exercise of power has been reached,” he said.
Summers told the court that counter-terrorism police had given no thought to Abdullah’s children when they arranged to stop him at Heathrow for questioning. “In any view, what happened to Mr Abdullah was appalling.”
A transcript of a police interview showed that police were unable to explain to Abdullah what had happened to his children when he was detained for questioning, apart from assuring him that they were safe.
During the interview, one police officer told Abdullah that it was very clear that he was very concerned about his children.
“There can be little doubt that his children were at the top of Abdullah’s mind. No one can tell him where they are,” said Summers. “The issue of the children, as far as Mr Abdullah was concerned, was a significant part of his reaction.”
Abdullah was aggressive, say police
A police witness told the judge that Abdullah began to behave aggressively when a border control agent asked him whether the youngsters travelling with him were his own children.
PC Steven Foster, who is attached to the Counter-Terrorism Command at Heathrow Airport, told the court: “In my opinion, Mr Abdullah was very aggressive with the immigration official. He slammed his passports down on the primary control point,” he said.
The court heard that Abdullah attempted to walk away after Foster told him that he wanted to ask him questions after immigration control.
Abdullah began shouting, “Why are you detaining me?”, and held the immigration desk, refusing to move, before he was forced to the ground and handcuffed by uniformed and plain-clothes police, it heard.
A video from a police body-camera of the incident, played in court, showed Abdullah repeatedly shouting, “You are assaulting me” and “I cannot move”.
Police took Abdullah to Polar Park Police Station, where he was interviewed under caution the following day.
Giving evidence, Foster said Abdullah had been scheduled for a Schedule 7 Terrorism Act examination “to make a determination whether he was involved in the instigation, commission or preparation of acts of terrorism”.
Foster told the court he initially thought Abdullah was accompanied by his wife and two children, but realised after the event that Abdullah was accompanied by three children – a 12-year-old girl and two boys, aged six and three.
“I said to Mr Abdullah, ‘I am a police officer, once you are through passport controls, I will be speaking to you. It will not take too long’,” he said. “He [Abdullah] said, ‘I am not speaking to you’. I said, ‘You will’.”
Foster told the court that Abdullah stepped back from the podium and attempted to walk away after he handed him a public information leaflet explaining his rights and responsibilities under Schedule 7.
“I got hold of the strap on his black rucksack,” said Foster. “He was shouting, ‘What are you detaining me for?’. He also mentioned his children and that it was an embarrassing situation. I tried to use this to calm him down and explain that there was no reason for this behaviour,” said Foster.
Police did not check records of previous stops
Foster and another officer at the scene said they had not personally made any checks on police computers to see whether Abdullah had been stopped before, or what information was held on him from previous stops. Foster said he was unaware that Abdullah was travelling with members of his family.
The court had to be briefly cleared of the public and press when Foster refused to say in an open hearing whether the police were acting on intelligence information when they stopped Abdullah.
Police officers also said they could not comment on evidence that an officer had discussed a proposal to remove Abdullah from a database list after stopping him in 2014, in an open court hearing.
Prosecution: Schedule 7 stop was lawful
Brett Weaver, for the Crown Prosecution Service, told the court that the questioning was lawful, even though Abdullah had been stopped on previous occasions.
He said a code of practice used by police and enforcement officers ensures that powers are used lawfully by trained officers, with adequate safeguards.
“We submit that Schedule 7, by its nature, can be used regardless of any previous stops. The fact that Mr Abdullah gave answers on previous occasions does not prevent Schedule 7 being used on this occasion,” he said.
He told the court there was clear evidence that police officers attempted to give Abdullah a leaflet explaining his rights and obligations under Schedule 7.
“In our submission, the manner of Mr Abdullah’s behaviour, from the moment he came before the immigration desk, was such as to justify the decision to detain him,” he said.
There was no credible evidence that threats were made to take Abdullah’s children away from him, and Abdullah’s concern for his children is not readily apparent in his interview under caution.
During cross-examination, Abdullah disclosed that he had been convicted of a serious criminal offence in 2006 and had been released from prison in 2010.
Weaver said the offences related to two offences of possessing a firearm, and therefore he was someone who had access to firearms.
In 2015 and 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.
According to Anderson, 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.
The greatest value of Schedule 7 is in supplying intelligence about terrorist threats, disruption and deterrence, and recruiting informants, he said.
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.
The government added safeguards to the code of practice governing how police should conduct searches, in the wake of a landmark legal ruling in 2016 over the arrest of David Miranda, the partner of investigative journalist Glenn Greenwald, 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.
In the most recent test of Schedule 7, Muhammad Rabbani, director of the human rights group Cage, had argued that he should be exempt from disclosing his computer and phone passwords, as the devices contained highly sensitive information about a client he was representing who had been a victim of torture in the US.
Rabbani, described by senior district judge Emma Arbuthnot at Westminster Magistrates’ Court, as a person of good character, now plans to appeal to the Supreme Court. Cage has since published 35,000 documents relating to the torture of an alleged Muslim terrorism suspect in a detention centre in the US, which it says were held on Rabbani’s computer at the time of his arrest.
The court heard that there had been conflicting evidence over whether the police followed proper procedures when Abdullah was stopped.
Witnesses gave conflicting accounts over whether police had handed Abdullah a red leaflet – known as a Schedule 7 (S7) notice – explaining his rights and obligations to answer questions under Schedule 7 of the Terrorism Act.
An independent immigration officer, and another police officer on the scene, made no mention that police had handed Abdullah an S7 notice. There was a conspicuous absence of red notice in the police body-camera footage.
It is significant that no red notice was found in Abdullah’s property when it was searched by police, said Summers.
Abdullah denied that PC Foster handed him a leaflet explaining his rights and obligations under Schedule 7, and said that if he had been given a leaflet, he would not have had time to read it before he was handcuffed and forced to the floor.
“The operation was devoid of any statutory purpose and the decisions to move to detention were fatally flawed,” said Summers. “Mr Abdullah’s behaviour, however much he regrets it, was not unlawful.”
The police and the Crown Prosecution Service have so far declined to release a copy of the police body-camera video footage of Abdullah’s arrest – shown in open court – to Computer Weekly.
The chief magistrate is considering her decision on the case.
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