The government’s terror watchdog has called for greater clarity over the use of Schedule 7 stops, which allow police to question people and to copy data from their mobile phones and computers at UK borders without reason for suspicion.
The outgoing independent reviewer of terrorism legislation, Max Hill QC, published his final report on the operation of the UK’s terror laws on 10 October, a day before leaving the job.
Speaking at an event organised by the Human Rights Lawyers Association on the day of the report’s publication, Hill said he believes Schedule 7 to be a “work in progress”, with room for improvement.
“I am still uncomfortable with a regime that doesn’t have objectively verifiable thresholds for intervention at our borders,” he said in response to questions from Computer Weekly.
The government has declined the recommendation made by Hill’s predecessor, David Anderson QC, to introduce a requirement of reasonable grounds to suspect.
The home secretary has also declined Hill’s recommendation to introduce the universal threshold of “reasonable grounds to support” outlined in his previous report.
No requirement for suspicion
Schedule 7 of the Terrorism Act 2000 gives border police the power to interrogate and detain any person at a UK international travel terminal for up to six hours. Police also have powers to conduct personal searches and collect biometric data. They may also seize any electronic devices the person may be carrying.
Detained subjects are obliged to answer all questions and to supply passwords to enable data to be downloaded. There is no requirement for an officer to have reasonable suspicion that a person is engaged in terrorist activity to make a Schedule 7 stop.
High-profile cases include the director of campaigning group Cage, who was prosecuted in 2017 after refusing to hand over the passwords of his mobile phone and computer when stopped by police at Heathrow Airport.
Another is the case of David Miranda, the partner of journalist Glenn Greenwald, who was stopped in London in August 2013 and had computers containing encrypted copies of documents leaked by Edward Snowden seized.
Speaking earlier this week (10 October), Hill said he did not believe the anti-terror provisions of Schedule 7 were being abused by law enforcement for routine information gathering.
“I think it would be quite wrong of the authorities to stop on a random basis to gather information, to pass that through the system as it were, and to use Schedule 7 for improper purposes, but I don’t see evidence of that happening,” he said.
The independent reviewer said he would like to see greater objectivity over the way people are selected for Schedule 7 stops: “I’d like to see a bigger, meatier code of practice than we have.”
Serious questions remain over Schedule 7
Hill’s report raised concerns over the effectiveness of Schedule 7 powers. “Serious questions remain as to the effectiveness of the powers, and to answer the question ‘what is the right number of Schedule 7 stops, and what number is too many?’”
While the number of Schedule 7 stops has declined sharply in recent years, the number of detentions has risen as a percentage of stops made.
In 2012, 60,127 people were stopped under Schedule 7, with 614 resultant detentions. In 2017, 16,349 people were stopped, with 1,700 detentions, representing an almost threefold increase in detention rates over five years.
Regardless of the lack of requirement for suspicion of terrorism activity, under the code of practice, the decision to select a person for examination must not be arbitrary, said Hill.
In practice, a stop may be made in two scenarios. In the first, an officer may use “high discretion”, based on personal observation of the subject of the stop.
A “low discretion” case would involve the automatic triggering of a preset electronic flag against the subject’s name, most likely placed by the security services. This scenario is likely to lead to a person being stopped regularly, as they pass in and out of the UK.
Muzaffar Abdullah was prosecuted after refusing to answer questions when stopped by police after, it is believed, being flagged on a database.
Abdullah received a conditional discharge and a £500 costs order earlier this year, after being found guilty of wilful obstruction and refusing to answer questions at Heathrow Airport in March 2018. He had been stopped under Schedule 7 more than 10 times in total, despite police knowing that he had no connection with terrorism, the court heard.
Muhammad Rabbani, director of campaigning group Cage, said he would appeal to the Supreme Court following dismissal of his appeal against conviction under Schedule 7.
Rabbani had refused to hand over passwords to his iPhone and laptop when detained at Heathrow Airport in November 2017, following a trip to Qatar. He said the “arbitrary power” to seize data was highly compromising to those carrying sensitive data, such as lawyers and human rights activists.
Police have seized biometric data in a relatively small percentage of cases, and less than 1,000 a year, although there have been no statistics published since 2015.
Hill said he would like to see further clarity over the police’s collection of both biometric and electronic data from people stopped at airports and ports.
“Nonetheless, important questions remain,” reported Hill, “including the ongoing issue of satisfactory rules governing the retention of both biometric data taken from individuals and electronic data downloaded from their devices.”
Need for police training
There is a need for more efficient collection of data from devices seized by police or border control officers during Schedule 7 stops, particularly as it would decrease the time needed to hold people in detention, the independent reviewer of terrorism said.
“I note, in conversation with officers, the desirability of further training and capacity building on the use of software permitting rapid download of digital devices,” he said.
Hill said he would also like to see greater clarity about Schedule 7 stops made on people travelling within the UK. “As a matter of training, there should be clarity around the importance and relevance of using Schedule 7 for domestic flights/travel, as well as international flights/travel,” he said.
Around 10% of the stops made in 2014-2015 were in Northern Ireland, but none of the examinations lasted over an hour, which would have triggered a formal detention.
According to Hill, the fast Schedule 7 turnaround in Northern Irish ports is because many of the people stopped are residents of the country.
“PSNI has advised the Northern Ireland Policing Board that PSNI ports officers do not encounter the same level of difficulties as at some other UK ports regarding language barriers due to the lack of international carriers,” he said.
Government proposes new stop and seize powers
Hill has raised concerns over the introduction of a grey area within power to detain, under provisions of the Counter-Terrorism and Border Security Bill 2018.
The government has proposed a separate legal regime under the new bill for dealing with non-terrorist threats, such as espionage by foreign powers, in the wake of the “Novichok” poisonings in Salisbury.
It introduces Schedule 7-type stops to identify whether people are engaged in non-terrorist “hostile activity”. This would, however, be implemented by those currently making Schedule 7 stops under the Terrorism Act 2000.
“Thus,” said Hill, “many of the provisions of Schedule 7 to the Terrorism Act 2000 (the border stop powers) are repeated but repackaged for non-terrorist ‘hostile activity’, providing border police (confusingly perhaps, the same counter-terrorism police officers who already exercise Schedule 7 powers) with the ability to intervene and to detain.”
There is currently no named successor to Max Hill, leaving a potential gap in independent terrorism legislation review for several months. Hill is due to start a new role as the director of public prosecutions.