Liberty - Protecting civil liberties, promoting human rights

Schedule 7

Overbroad stop and search without suspicion powers have been a blot on our legal landscape for years. Section 44 of the Terrorism Act previously fell foul of similar human rights considerations and its replacement with the more proportionate section 47A, following our successful European Court of Human Rights challenge in Gillan and Quinton v United Kingdom, was an extremely welcome development.

However the powers set out in schedule 7 – while more limited in geographical terms – allow for even greater intrusion than the now discredited section 44 – while raising all of the same concerns:

• Under schedule 7, officers can detain the person and question them for up to nine hours;

• They may search the person, or any of their belongings, and may retain those belongings for up to seven days;

• It is an offence if the person fails to answer questions, or obstructs the exercise of the functions under the Act;

• The person has no right to a publically-funded lawyer while detained at the port or border;

• If detained at a police station, officers can take the person’s biometric data – including fingerprints and DNA.

The evidence confirms that schedule 7 powers are being used on a massive scale – outstripping any of the counter-terrorism stop and search powers which came before it:

• In 2011-12, 69,109 people were stopped and examined under the power;

• 2,240 of those individuals were held for more than an hour;

• 592 were required to provide biometric samples;

• In 2010/11, 45 per cent of those detained under schedule 7 were Asian; 21 per cent were black; and only eight per cent were white;

• Recent research suggests Asian passengers are 42 times more likely to be stopped under schedule 7 than their White counterparts.

What Liberty is doing

At Liberty we’ve long argued that schedule 7 is ripe for misuse and discrimination. We believe it contravenes the basic rights to liberty and respect for private life, as protected by the European Convention on Human Rights, and is therefore unlawful.

We are currently representing an individual stopped and questioned at Heathrow Airport under the power, who has brought a complaint in the European Court of Human Rights in Strasbourg. The British man, who is of Asian origin, was held for four-and-a-half hours in November 2010. He was quizzed about his salary, voting habits and the trip he had been on. His paperwork and credit cards were copied and police kept his mobile phone, which was only returned eight days later after he paid for it himself. His fingerprints and a mouth-swab were also taken. He had never previously been arrested or detained, and was travelling lawfully. In May this year, the Court considered the arguments and deemed our case admissible.

David Miranda

Meanwhile the recent detention of David Miranda, the partner of Guardian journalist Glenn Greenwald, under schedule 7 has further exposed the astonishingly broad nature of the power and the way it can be misused. The subsequent outcry also demonstrates the widespread public concern around this issue. With no requirement for suspicion, journalists and those linked to them are similarly vulnerable to abuses. Confiscation of property can include phones, computers – anything you have on you. So emails, contacts, messages and documents are readily seized and examined. The implications for journalists and their loved ones, and the protection of their source material, are obvious.

Reform

The Government has tried to paper over the cracks by tabling amendments to schedule 7 via the Anti-social Behaviour, Crime and Policing Bill. Ministers are tinkering around the edges rather than accepting the fundamental, fatal flaws of this type of law.

Passengers passing through airports are already subjected to extensive searches, while the police have the power to search someone they have reason to believe may be a terrorist. Section 47A of the Terrorism Act 2000 gives them further generalised search powers if they genuinely believe that a terrorist attack is imminent. There are also generous legal channels available for the recovery of sensitive material for genuine national security reasons. Schedule 7, which allows the police to conduct a fishing expedition, is unnecessary and excessive.

Ministers should stop fiddling around the edges of this misguided, dangerous power, take the opportunity provided by the Anti-social Behaviour, Crime and Policing Bill, and repeal schedule 7.