European Court of Human Rights

 

 

 

FOURTH SECTION

Application no.32968/11
SabureMALIK against the United Kingdom
lodged on 18 May 2011

STATEMENT OF FACTS

 

The applicant, Mr SabureMalik, is a British national, who was born in 1979 and lives in Benfleet. He is represented before the Court by Ms C. Ferguson of Liberty, a lawyer practising in London.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 9 November 2010 the applicant flew to Saudi Arabia with his elderly mother on an organised package tour to undertake the Hajj. They were accompanied by many other Muslims on similar tours. On their return on 23 November 2010, they flew on Gulf Air from Jeddah, via Bahrain, to London Heathrow airport. The applicant was tired due to the five hour flight and the change of aircraft in Bahrain. He also had a chest and ear infection and was taking antibiotics. Due to his attendance on Hajj he had let his beard grow and had his head shaven.

Having exited from the aeroplane the applicant proceeded to immigration control at Terminal 4 and presented his United Kingdom passport to the immigration officer at the passport desk in the normal way. At approximately 2.50 p.m. the applicant was approached by two police officers, one of whom explained that he had been flagged for having two passports and that this was illegal. The applicant explained that he had been advised to apply for a second passport by the United Kingdom Passport Agency, since visa stamps from a previous trip to Israel would otherwise lead to the Saudi authorities denying him a visa for Hajj. The officer accepted this explanation, but asked the applicant to step into a side room.

Once in the room, the applicant was told to place his mobile phone on the desk. He was then patted down to discover whether he had any additional means of communication. At approximately 3 p.m. he was served with two notices: a “TACT 1” entitled “Notice of Examination under Schedule 7 of the Terrorism Act 2000”, recorded as served at 15.00 and a “TACT 2” entitled “Notice of Detention”, recorded as served at 15.01. The latter explained that he had been detained “under paragraph 6 of Schedule 7 to the Terrorism Act 2000”, his duties under the Act, the risk of criminal penalty for non-compliance, and his right to inform someone of his detention or consult with a solicitor. The applicant requested that his mother be informed and was advised to arrange for a solicitor to assist him.

 

One of the police officers made it clear to the applicant that he was not known to the police and that there was no reason to detain him other than his possession of two passports. The applicant was subsequently asked a few questions, mostly pertaining to his identity. He confirmed his name, date of birth, address and other basic information requested. The only question which the applicant refused to answer was what religion he followed, which the applicant considered to be a ridiculous and insulting question given that he had just returned on a flightfrom Saudi Arabia filled with Hajj pilgrims. The applicant also refused to consent to providing DNA material and fingerprints, although he said he would not resist them being taken. He was told he would be taken to a police station where the officers would have the power to compel this.

The applicant was then marched through the terminal by the police officers, in plain view of all of his fellow Hajj group members. He felt humiliated by the group members seeing him treated like a common criminal. Placed in the back of a police van, the lack of food and sleep coupled with anxiety and the cold in the van led him to feel unwell. Upon arrival at Heathrow police station, the officer who opened the van referred to the applicant as “the prisoner” and had him booked into the station at 4.36 p.m.

The Custody Officer’s risk assessment and detention log recorded the applicant as in need of a doctor or other health care professional because of a chest and ear infection. Following the receipt of basic telephone advice from his solicitor, advising him to answer questions but not to answer any to do with his religion or beliefs, he was then obliged to give a mouth swab for DNA and his fingerprints on the authority of the relevant officer holding the rank of superintendent.

The applicant was taken to an interview room where his luggage was examined by the two officers from Heathrow airport. His mobile phone, credit cards, bank details, underwear, clothes and work pass were all exposed. His Qu’ran was hung upside down, shaken and flicked through, in a manner that he regarded as extremely disrespectful. Everything of interest, including pieces of paper, gifts from Saudi Arabia, bank cards, his work pass and phone containing personal text messages, was placed on the table. He was questioned briefly about some of these items.

A tape recorded interview began at 6.19 p.m. He was questioned about his trip, including what he did and where he stayed in Saudi Arabia, and he was again asked to explain why he had two passports. The applicant was also questioned in detail on matters including where else in the world he had travelled, whether he had voted in the last general election and why he had a commercial credit card, as well as such matters as his business accounts, his salary and his personal email address. The interview was concluded at 6.44 p.m. Questioning also took place before and after the recorded interview. The applicant protested during this time that the powers used were disproportionate.

At 7.20 p.m. the applicant was released. He was refused transport back to Terminal 4 and was left to find a bus. Copies were taken of all his paperwork and credit cards, and his sim cards and mobile phone were retained and only returned to him eight days later by a courier organised and paid for by the applicant, after the police refused to do so. Two local officers attended his house on 3 December 2010 in relation to this.

The entire incident left the applicant feeling humiliated and ruined his Hajj experience. All the friends he made during the experience ceased contact with him after seeing him detained at the airport. He had never been arrested or detained by the police before this.

On 24 November 2010 the applicant made a complaint about his detention to Lord Carlile of BerriewQC, who at the time was the Independent Reviewer of the Terrorism Legislation. The Reviewer is required under section 36 of the Terrorism Act 2006 to review the workings of counter-terrorism legislation including the use of the powers under Schedule 7 (see below). The applicant’s complaint was passed on to a Detective Inspector engaged in counter-terrorism work, who investigated the matter. The Detective Inspector sent the applicant a report of his investigation’s findings on 7 January 2011, having reviewed documentation generated in the search and “spoken to or directly corresponded with the officers concerned” and considered “all the available facts”. The report confirmed that it was the understanding of the police that, having submitted to ordinary passport control, “an examination began under schedule 7 of the Terrorism Act at 2.50 pm” and that the applicant was “detained for examination at 3.01 at which time you were served with the Terrorism Act form 1 and 2 informing you of your rights and what actions were being taken (as required by the legislation)”. The Detective Inspector stressed that under schedule 7, the officer “does not require any reasonable grounds to stop a person and conduct any such examination” and concluded that, in stopping and questioning the applicant and in taking DNA samples and fingerprints, the officers had acted appropriately within the terms of the legislation.

The applicant has not brought any proceedings in the domestic courts to challenge the measures applied to him by the police following his arrival at Heathrow.

B.  Relevant domestic law and practice

1.  Schedule 7 to the Terrorism Act 2000

Paragraph 2 of Schedule 7 to the Terrorism Act 2000 (“Schedule 7”) empowers an examining officer to question a person arriving or leaving a port or border area, for the purpose of establishing whether he or she appears to be, or to have been, concerned in the commission, preparation or instigation of acts of terrorism, whether or not the examining officer has grounds for suspicion. The “examining officer” may be a police constable, an immigration officer or a designated customs officer.

In accordance with paragraph 6 of Schedule 7:

“(1) For the purposes of exercising a power under paragraph 2 or 3 an examining officer may -

(a) stop a person or vehicle;

(b) detain a person.

(2) For the purpose of detaining a person under this paragraph, an examining officer may authorise the person’s removal from a ship, aircraft or vehicle.

(3) Where a person is detained under this paragraph the provisions of Part I of Schedule 8 (treatment) shall apply.

(4) A person detained under this paragraph shall (unless detained under any other power) be released not later than the end of the period of nine hours beginning with the time when his examination begins.”

The officer may also search the individual and his possessions and belongings, by virtue of paragraph 8. A search of the person must be carried out by an officer of the same sex as the person searched. Any article given to or found by the examining officer may be retained for examination for up to seven days. Paragraph 10 permits the taking of fingerprints and non intimate samples without consent.

Paragraph 5 of Schedule 7 places obligations on the person being questioned, to (a) give the examining officer any information in his possession which the officer requests; (b) give the examining officer on request either a valid passport which includes a photograph or another document which establishes his identity; (c) declare whether he has with him documents of a kind specified by the examining officer; and (d) give the examining officer on request any document which he has with him and which is of a kind specified by the officer.

Paragraph 18 provides that a person commits a criminal offence if he or she wilfully fails to comply with a duty or contravenes a prohibition imposed under or by virtue of Schedule 7, or wilfully obstructs, or seeks to frustrate, a search or examination under or by virtue of the Schedule. The maximum penalty for commission of an offence under paragraph 18 is three months’ imprisonment and/or a fine.

2.  The Code of Practice

A Code of Practice has been issued pursuant to paragraph 6(1) of Schedule 14 of the Terrorism Act 2000. The paragraph includes the proviso at subparagraph (2) that a failure to observe a provision of the Code “shall not of itself” make an examining officer liable to criminal or civil proceedings. The current version of the Code was issued on 2009. Paragraphs 9 and 10 deal with the examination powers under Schedule 7:

“9. The purpose of questioning and associated powers is to determine whether a person appears to be someone who is or has been concerned in the commission, preparation or instigation of acts of terrorism. The powers, which are additional to the powers of arrest under the Act, should not be used for any other purpose.

10. An examining officer may question a person whether or not he suspects that the person is or has been concerned in the commission, preparation or instigation of an act of terrorism and may stop that person for the purposes of determining whether this appears to be the case. Examining officers should therefore make every reasonable effort to exercise the power in such a way as to minimise causing embarrassment or offence to a person who is being questioned.

Notes for guidance on paragraphs 9 and 10

The powers to stop, question, detain and search persons under Schedule 7 do not require an examining officer to have any grounds for suspicion against any individual prior to the exercise of the powers. Therefore examining officers must take into account that many people selected for examination using Schedule 7 powers will be entirely innocent of any unlawful activity.

The powers must be used proportionately, reasonably, with respect and without unlawful discrimination. All persons being stopped and questioned by examining officers must be treated in a respectful and courteous manner.

Examining officers must take particular care to ensure that the selection of persons for examination is not solely based on their perceived ethnic background or religion. The powers must be exercised in a manner that does not unfairly discriminate against anyone on the grounds of age, race, colour, religion, creed, gender or sexual orientation. To do so would be unlawful. It is the case that it will not always be possible for an examining officer working at a port to know the identity, provenance or destination of a passenger until they have stopped and questioned them.

Although the exercise of Schedule 7 powers is not based on an examining officer having any suspicion against any individual, the powers should not be used arbitrarily. An examining officer’s decision to exercise their Schedule 7 powers at ports must be based on the threat posed by the various terrorist groups active in and outside the United Kingdom. When deciding whether to exercise their Schedule 7 powers, examining officers should base their decisions on a number of considerations, including factors such as;

• known and suspected sources of terrorism;

• Individuals or groups whose current or past involvement in acts or threats of terrorism is known or suspected and supporters or sponsors of such activity who are known or suspected;

• Any information on the origins and/or location of terrorist groups;

• Possible current, emerging and future terrorist activity;

• The means of travel (and documentation) that a group or individuals involved in terrorist activity could use;

• Emerging local trends or patterns of travel through specific ports or in the wider vicinity that may be linked to terrorist activity.

Selections for examination should be based on informed considerations such as those outlined above and must be in connection with the threat posed by the various terrorist groups active in and outside the United Kingdom. A person’s perceived ethnic background or religion must not be used alone or in combination with each other as the sole reason for selecting the person for examination.

Schedule 7 powers are to be used solely for the purpose of ascertaining if the person examined is or has been concerned in the commission, preparation or instigation of acts of terrorism. The powers must not be used to stop and question persons for any other рurpose. An examination must cease and the examinee must be informed that it has ended once it has been ascertained that the person examined does not appear to be or to have been concerned in the commission, preparation or instigation of acts of terrorism.

Unless the examining officer arrests the person using powers under the Act, a person being examined under Schedule 7 need not be cautioned.”

3.  Home Office Statistics on the operation of Schedule 7

Schedule 7 came into force in February 2001. In October 2010 the Home Office published for the first time statistics on the use of the power. The “Home Office Statistical Bulletin on the Operation of Police Powers under the Terrorism Act 2000” stated that in the year 2009/10 there were 85,557 examinations under Schedule 7, of which 2,687 lasted for more than one hour. The total number of examinations in previous years has not been published, but in response to a request under the Freedom of Information Act 2000 the Home Office disclosed statistics on the numbers of examinations which exceeded one hour. These indicate a steady increase in the use of Schedule 7 (from 1,190 in 2004 to 2,473 in 2008).

Ethnicity records for Schedule 7 examinations only appear to have begun to be kept in April 2009, when the police service started to collect details of all Schedule 7 examinations including ethnicity. So-called “officer-defined” ethnicity indicates that while Asian individuals are 5.9% of the general population in England and Wales, they represent 27% of those examined (and 44% of those formally detained). African/Caribbean individuals represent 2.8% of the population, but 7% of those examined (and 9 % of those detained).

4. Other reports on the operation of Schedule 7

The Parliamentary Joint Committee on Human Rights, which has constitutional responsibility in the United Kingdom for scrutinising legislation to ensure that it is compatible with Convention rights, noted in 2006 that the power under Schedule 7 “gives rise to strong concerns about racial profiling” (“Counter-Terrorism Policy and Human Rights: Prosecution and Pre-Charge Detention”, August 2006, paragraph 158).

The Equality and Human Rights Commission, which is a statutory body in England, Scotland and Wales responsible for promoting and monitoring human rights and protecting, enforcing and promoting equality, published a report concerning “The Impact of Counter Terrorism Measures on Muslim Communities” in Spring 2011. Police officers interviewed for the report explained that decisions to stop were “not based on ethnic profiling but can be based on risk assessment around specific routes and in response to intelligence and information they receive”. In this respect police “acknowledged that the use of flight risk assessments meant that those travelling on particular routes were more likely to be stopped” and that this created “an impression of racial profiling”. The focus group-based research conducted indicated that non-Muslim participants in the focus groups could not recall any experiences of Schedule 7 stops. Muslim participants, however, noted a “widespread negative impact” across their communities, with a greater impact on businessmen and professionals and stops becoming a “routine part” of the Muslim travel experience. The report also found that

“The interviews suggest that the experience of being stopped and questioned at an airport is often more stressful than a stop in the street. This may be a function of the general stress of travelling; individuals are with families or may have families or friends awaiting their arrival. Added to this are concerns about missing flights or corrections and losing baggage if a flight is missed ...”

The report concluded that the interviews it conducted suggested that the Schedule 7 power is “silently eroding the Muslim community’s trust and confidence in policing”.

The Metropolitan Police Authority Civil Liberties Panel reports directly to the Metropolitan Police Authority, which is responsible for national counter-terrorism and bears a substantial responsibility for all usage of the Schedule 7 powers; but particularly so at the London airports. The Civil Liberties Panel began work in the summer of 2009, considering issues on a priority basis. In June 2011, the Panel published the final draft of its study, “Protecting the Innocent - The London Experience of DNA and the National Database”. Having summarised the above available statistics, the Panel observed that whilst the religion of those examined under Schedule 7 was not monitored, there were concerns that this power is disproportionately targeted at individuals based on ethnic profiling and assumptions of their religion or perceived religion.

The Independent Reviewer of the Terrorism Act is mandated under section 36 of the Terrorism Act 2006 to produce annual reports concerning the operation of the range of counter-terrorism powers available to United Kingdom law enforcement. The previous Reviewer, Lord Carlile of BerriewQC, considered Schedule 7 over a number of years. He maintained that the “obvious presence of port officers is a deterrent to terrorists ... knowledge, on their part, that a port is manned efficiently and the subject of strong and well-informed vigilance is a significant inhibition against targeting that port” (Report of 2010, paragraph 203). For that reason he did not challenge the utility of the power per se. However, he repeatedly argued that “the number of random or intuitive stops could be reduced considerably” without undermining national security (paragraph 192 and 194).

David Anderson QC, the successor to Lord Carlile, published his first annual Report to Parliament on 18 July 2011. He noted that the existing figures on Schedule 7 stops understated their frequency, because they did not include those asked only “screening questions”. The review reported police claims that Schedule 7 stops were mostly based upon intelligence, and that even “intuitive stops” should be based upon “informed consideration” (paragraph 9.6). However, it also noted the reported “difficulties in making the most effective use of Schedule 7 when little or nothing is known about passengers before their arrival at the port”, making it “difficult for police to run advance checks on passengers and so to use Schedule 7 in as targeted and restrained manner as they would wish”. The Reviewer then considered the ethnicity figures in detail and concluded that “a person considered by officers to be of Asian appearance is much more likely to be kept for over an hour, and much more likely to be detained, than a white person”. While arguing that the utility of the power was “scarcely in doubt”, he also emphasised that “against that must be weighed the negative impact that has been documented on some Muslim communities, illustrated by the community police officer who referred to Schedule 7 stops as something that is ‘bubbling under the surface... eroding trust’”. The Reviewer did not make detailed recommendations. However, he concluded that it was “not altogether clear” to him whether there were useful dividends from what he termed the “more extreme manifestations of the power” such as the “ability to detain for 9 hours, the powers to strip search, take intimate samples and so on”. He also raised concerns about the lawfulness of the power following Gillan and Quinton v. the United Kingdom, no. 4158/05, ECHR 2010 (extracts), and recommended that there “should be a careful review of the extent and conditions of exercise of the Schedule 7 power”.

Finally, in his report to the United Nations Human Rights Council, published on 29 January 2007, the former Special Rapporteur on the Promotion of Human Rights and Fundamental Freedoms while Countering Terrorism (Martin Scheinin) discussed the development of profiling in the context of counter-terrorism. He noted that in the United Kingdom, government officials had “openly acknowledged that law-enforcement efforts in the counter-terrorism context focus on particular religious and ethnic groups” and he expressed the view that “stops and searches of persons that are based on stereotypical assumptions that certain religious or ethnic groups are more likely to pose a terrorist threat than others may amount to a disproportionate and arbitrary interference with the freedom of movement guaranteed by Article 12 of the ICCPR, the right to privacy, guaranteed by Article 17 of the ICCPR and/or the right to personal liberty, guaranteed by Article 9”.

COMPLAINTS

The applicant submits that the use of Schedule 7 powers in his case violated his rights under Articles 5 § 1 and 8 of the Convention.

 




QUESTIONSTO THE PARTIES

 




  Has the applicant exhausted domestic remedies as required by Article 35 of the Convention?

 




  At what stage was the applicant deprived of his liberty within the meaning of Article 5 § 1 of the Convention. Did the deprivation of liberty give rise to a violation of Article 5 § 1 of the Convention?

 




    Did the procedures applied to the applicant give rise to an interference with his right to respect for private life? If so, was there a violation of his rights under Article 8 of the Convention?