England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		20 December 2011

Mr Justice Collins:


 


1. The claimant has anonymity because he is subject to a control order imposed under Section 2 of the Prevention of Terrorism Act 2005 and it has been decided that he should have anonymity in connection with that order. That anonymity has been properly extended to this claim. In it the claimant challenges the exercise against him by police officers at Heathrow Airport of powers to question and detain passengers arriving in, leaving or transiting this country to determine whether they appear to be terrorists within the meaning of the Terrorism Act 2000. The powers in question are conferred by Schedule 7 to the 2000 Act.
2. In the claim form and in his skeleton argument Mr Otty, Q.C. made wide ranging general submissions which sought to limit the circumstances in which the powers could be exercised. It is most important that the scope and extent of the powers as laid down in Schedule 7 should be determined and I have heard argument from all parties on that issue. All counsel accepted that the powers could not be used if the predominant purpose was other than that specified in the Schedule. In the end there was little between them since Mr Otty was persuaded that the extensive limitations on the powers for which he was contending in his written submissions were not appropriate. But it was and remained his case that on the facts the powers were not exercisable and so the detention and questioning of the claimant was not lawful.
3. I should first set out the relevant provisions of the 2000 Act. Section 1 defines terrorism in very wide terms. It provides as follows:-

"(1) In this Act "terrorism" means the use or threat of action where –

(a) the action falls within Subsection (2)

(b) the use or threat is designed to influence the government or an international government organisation or to intimidate the public or a section of the public, and

(c) the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause.

(2) Action falls within this subsection if it –

(a) involves serious violence against a person,

(b) involves serious damage to property.

(c) endangers a person's life, other than that of the person committing the action,

(d) creates a serious risk to the health or safety of the public or a section of the public, or

(e) is designed seriously to interfere with or seriously to disrupt an electronic system …

(4) In this section –

(a) "action" includes action against the United Kingdom,

(b) a reference to any person or to property is a reference to any person, or to property wherever situated,

(c) a reference to the public includes a reference to the public of a country other than the United Kingdom

(d) "the government" means the government of the United Kingdom, of a part of the United Kingdom or of a country other than the United Kingdom …"

4. Thus terrorism for the purposes of the Act includes action which falls within the definition in subsections (1) and (2) in any country in the world and which may be aimed at the government of that country whether or not it is likely to affect the United Kingdom.
5. Section 40 of the Act gives an even wider definition of 'terrorist'. By section 40(1) a terrorist means a person who has committed various offences created by the Act and in addition by s.40(1)(b) who "is or has been concerned in the commission, preparation or instigation of acts of terrorism". S.40 (2) provides:-

"The reference in subsection (1) to a person who has been concerned in the commission, preparation or instigation of acts of terrorism includes a reference to a person who has been, whether before or after the passing of this Act, concerned in the commission, preparation or instigation of acts of terrorism within the meaning given by section 1."

Thus once a terrorist always a terrorist whether or not the person in question has renounced his past or circumstances have changed (for example where the acts of terrorism occurred in a country whose government, perhaps because dictatorial and oppressive, has since been overthrown). Indeed, the terrorist may have become a respected and respectable member or even leader of the new government of that country. Nevertheless, he is still a terrorist within the meaning of the 2000 Act. I should make clear that when I use the word 'terrorist' I am applying the meaning set out in section 40 unless the contrary is stated.

6. Section 41 empowers a constable to arrest without a warrant any person whom he reasonably suspects to be a terrorist. Section 43 provides that a constable may stop and search a person whom he reasonably suspects to be a terrorist to discover whether he has in his possession anything which may constitute evidence that he is a terrorist.
7. Schedule 7, which is applied by section 53 of the Act, is headed "PORT AND BORDER CONTROLS". So far as material for the purposes of this case, it provides as follows:-

"1.(1) in this schedule "examining officer" means any of the following –

(a) a constable,

(b) an immigration officer,

(c) a customs officer who is designated for the purpose of this schedule by the Secretary of State and the Commissioners of Customs and Excise …

2.(1) An examining officer may question a person to whom this paragraph applies for the purpose of determining whether he appears to be a person falling within section 40(1)(b).

(2) This paragraph applies to a person if –

(a) he is at a port …, and

(b) the examining officer believes that the person's presence at the port … is connected with his entering or leaving Great Britain … or his travelling by air within Great Britain …

(4) An examining officer may exercise his powers under this paragraph whether or not he has grounds for suspecting that a person falls within section 40(1)(b). "

Paragraph 5 provides that a person who is questioned pursuant to the powers contained in paragraph 2 must give any information and produce any documents in his possession which the officer requests. Paragraph 6 gives power to detain a person for the purposes of exercising the powers conferred by Paragraph 2, but only for a maximum period of 9 hours. Paragraph 8 confers powers to search a person or his possessions. Paragraph 18 provides –

"(1) A person commits an offence if he –

(a) wilfully fails to comply with a duty imposed under or by virtue of this Schedule …

(c) wilfully obstructs, or seeks to frustrate, a search or examination under or by virtue of this schedule.

(2) A person guilty of an offence under this paragraph shall be liable on summary conviction to

(a) imprisonment for a term not exceeding 3 months,

(b) a fine not exceeding level 4 on the standard scale, or

(c) both."

8. There is under the Schedule an obligation to answer questions put and to co-operate in any search. Failure to comply is a criminal offence and, if the failure was deliberate, the offence is committed. There is no defence of reasonable excuse. The powers created by Schedule 7 are far reaching and, so far as the power to detain is concerned, affect the liberty of the person. Thus they must in principle be strictly construed and it is incumbent on the officer to inform the person that he is being detained and why. So much is established by various authorities, in particular Pedro v Diss [1981] 2 All ER 59, which concerned a power to detain conferred by section 66 of the Metropolitan Police Act 1839.
9. Schedule 8 of the Act deals with the treatment of persons detained under Schedule 7. Paragraph 1 enables the Secretary of State to designate places at which a person may be detained and any place so designated is to be regarded as a police station. The room in which the claimant was detained and questioned at Heathrow was not designated under Paragraph 1 and so was not a police station within the meaning of Schedule 8. Paragraph 6 provides:-

"(1) Subject to paragraph 8, a person detained under Schedule 7 … at a police station … shall be entitled, if he so requests, to have one named person informed as soon as reasonably practicable that he is being detained there."

Paragraph 7 provides:-

"(1) Subject to paragraphs 8 and 9, a person detained under Schedule 7 … at a police station … shall be entitled, if he so requests, to consult a solicitor as soon as reasonably practicable, privately and at any time."

Paragraph 8 confers powers on an officer of at least the rank of Superintendent to authorise a delay in compliance with requests made under paragraphs 6 or 7. Paragraph 9 enables an officer of at least the rank of Commander or Assistant Chief Constable to direct that the person detained can only consult a solicitor in the sight and hearing of a uniformed officer of at least the rank of inspector who has no connection with the detained person's case. I need not set out the grounds which can found action under Paragraph 8 or 9. There are also set out powers to take fingerprints and intimate or non-intimate samples and the circumstances under which those powers can be exercised are specified. Again, I need not for the purposes of this judgment set them out.

10. I should finally refer to Schedule 14 which deals inter alia with the exercise of his powers by an examining officer within the meaning of Schedule 7. Paragraph 4 provides:-

"(1) Information acquired by an officer may be supplied –

(a) to the Secretary of State for use in relation to immigration;

(b) to the Commissioners of Customs and Excise or a customs officer;

(c) to a constable;

(d) to the serious Organised Crime Agency;

(e) to a person specified by order of the Secretary of State for use of a kind specified in the order …"

No relevant order has been made under paragraph 4(1)(e).

Paragraph 5 requires an officer to perform his functions in accordance with any relevant code of practice which the Secretary of State must make as laid down in Paragraph 6. I shall refer to the relevant provisions of the Code in due course. As will become apparent, in certain respects the Code in force at the material time which was issued in July 2009 is not entirely satisfactory.

11. Equivalent provisions to those contained in Schedule 7 have existed for some time, initially to help to combat terrorism from Ireland. Their primary purpose was and still is, as Lord Lloyd stated in his 1996 report (Cm 3420), 'to deter terrorists from entering the United Kingdom and to catch those who try; and to collect intelligence on the movements of persons of interest to the police and the Security Service.' In his annual report as the Independent Reviewer of the 2000 Act, Lord Carlile of Berriew, Q.C. has observed and considered the exercise of Schedule 7 powers and their value in combating terrorism. I quote from his 2004 report, which was one before me, but I have no reason to believe that what he says there has needed any modification since 2004. in Paragraphs 115 – 116 he says:-

"115. Many examinations at ports are carried out after officers have received general or specific intelligence about a suspect, type of traveller, or characteristics of a suspected operation. Some are carried out as part of the work of gathering knowledge about individuals who have come to notice. Having watched the process, I am in no doubt that the trained and ingrained instinct of experienced officers still has real value … most stops are of perfectly decent and innocent travellers … [I]ntuition … is not the same as reasonable suspicion: much intuition cannot be rationalised. The continuation of the present system is a necessity in current circumstances, and can give rise to useful results, including intelligence gains, from time to time.

116. … The terrorist traveller has much to fear at UK ports of entry. It is likely that United Kingdom intelligence procedures and ways of sharing information to meet need are as good as anywhere. They are methodical and tireless. One of the consequences is that intuitive stops are likely to play a diminishing role – though one must be ever mindful of their utility, given the use of terrorist organisations whenever possible of 'clean skins, people with no past record of operational terrorist activity. "

12. The evidence before me shows that 97% of all examinations last less than 1 hour. Only 0.05% last more than 6 hours. Thus in the vast majority of cases detention is not required and does not occur. Neither the Schedule nor the Code indicate with any degree of precision the circumstances in which detention will occur. If the officers decide to detain, the person concerned must be informed that he is being detained and why. This is done by means of a form TACT2. The Code states:-

"Examination and detention under Schedule 7 are not the same. A person being examined will not necessarily need to be detained and it is envisaged that most examinations will be conducted without the need to detain the person. Detention will be required usually where a person refuses to co-operate and insists on leaving. In such circumstances, it may not be necessary to take the person to a police station: detention may be short …, for example to complete an examination."

13. The fact that detention is not used in the vast majority of cases where a Schedule 7 examination is considered necessary does not affect the correct construction of the powers since detention may be required. But it does show that usually the specific powers are not in fact needed. Most people would expect that they might be questioned at a port, particularly if seeking to enter the country. However, it does not in my view justify a wider scope being given to the exercise of the powers than is justified by the statutory language used. I would only say that I am not persuaded that the Code indicates or was intending to indicate the only circumstances in which detention would be applied. In the instant case, there is no suggestion that the claimant was other than co-operative, but, since the examination took just over 6 hours, he was detained. I suspect that will be the position with any lengthy need to examine. Paragraph 11 of the Code requires the officer to inform the person concerned that he is being examined under Schedule 7 and that there is power to detain if there is a lack of co-operation. After 1 hour, a form known as TACT1 must be served. This informs the person concerned that he is being questioned under Schedule 7 and what the officer's powers and his obligations are. He is also told that he can request that a friend is informed and that he can ask to consult a solicitor. It would, I think, be a little surprising, if the examination were likely to continue for any substantially longer time, that detention would not, even if demanded in the sense that the person concerned was unwilling to co-operate, be deemed necessary. However, that is not relevant to construction of the powers, but I shall have to return to it when considering a subsidiary ground of the claim relating to the claimant's request for advice from a solicitor.
14. Paragraphs 9 and 10 of the Code state:-

"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 …"

This guidance simply follows the provisions of sub-paragraphs 2(1) and (4) of Schedule 7. It emphasises that the only purpose of any examination must be to determine whether he is a terrorist within the meaning of s.40(1)(b). The existence of prior information suggesting that he is or may be a terrorist will not determine whether an examination can properly be carried out, but, as this case shows, the nature of that information may in a given case be determinative. In fact, as must be obvious, the existence of prior information is likely in many cases to mean that an examination will be considered to be necessary. But the officers are able to act on an intuitive basis even if no prior information exists.

15. The wording of s.40(1)(b) is important. It in my judgment recognises that it must be open to an officer to act under Schedule 7 to determine whether a person appears to be or to have been concerned and to identify any acts constituting that concern. Thus, even if it appears that he has in the past been concerned in any such acts, it is open to the officer to examine him to determine whether he is still so concerned. Equally, it may be apparent that he is concerned in acts against a foreign government, but it must be open to officers to examine him to determine whether his acts affect this country or, indeed, any country other than that affected by his known acts. In the end, Mr Otty Q.C. did not challenge that an examination would be lawful in circumstances such as these.
16. It in my view goes further than those obvious requirements which are essential to fulfil the purpose of the Schedule 7 powers, namely the protection of the inhabitants of this (or indeed any other) country from acts of terrorism. If officers are informed by the Security Service or from any other source that a person, who appears to be a terrorist, is suspected of possible involvement with others in a specific terrorist plot, they may examine him for the purpose of determining whether he appears to be so involved. This is because the language of s.40(1)(b) is wide enough to allow for examination not only of whether he appears to be a terrorist but also of the way in which or the act by which he so appears. The officer is not, unless the powers are to be ineffective in their purpose to protect from terrorism, prevented from examining a person even if it appears he is a terrorist in particular respects, for example if in the past or by acts only affecting a foreign government.
17. Mr Otty submitted that once it appeared to the officer carrying out the examination that the person concerned was or was not a terrorist, the examination must come to an end. There are difficulties with this submission. First, the determination is not necessarily one for the examining officer. For example, searches may have taken place or samples taken and examination of anything obtained may show that an apparent concern in the relevant acts was not correct. It may therefore be important that all relevant information is obtained. Secondly, the apparent concern may be of past or particular acts amounting to terrorism and it may be important to see how far such concern goes. Thirdly, there may be a stage at which the officer is persuaded that the person concerned is a terrorist but further examination may dispel that view. It must be for the officer to judge when the examination should come to an end. No doubt his conclusion will then be forwarded to his superiors and the Security Service to see whether surveillance is required or there is sufficient to arrest under s.41. The officer himself has the power of arrest under s.41, but I would suppose that he would not save in the clearest case exercise that power. It might be necessary if the officer were satisfied that the person concerned was a danger and needed to be kept in custody, but that could sometimes be addressed by informing the Home Office who could then impose immigration or other controls.
18. Mr Otty was able to derive some apparent support from the Code for part of his submissions. In the notes for guidance on Paragraphs 9 and 10, this is said:-

"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."

In my judgment, this is misleading. There may come a point when the officer does consider that the examinee does not appear to be a terrorist, but his conclusion may not be shared by others and may, when what has emerged from the examination or any search is put together with other material which may, for example, be in the possession of the Security Service be shown to be wrong. Equally, further examination may show that the officer's view formed at a particular point was wrong. Again, in my view he must be able to ask all questions that he reasonably believes to be needed to enable him or others to reach the necessary determination.

19. It is to be noted that Paragraph 8 of Schedule 7 confers powers to search, 'for the purpose of determining whether [the person being examined] falls within section 40(1)(b).' This may prima facie suggest a higher hurdle for a search than that set out in Paragraph 2 of the Schedule. However, Paragraph 8 refers explicitly to the powers of an examining officer 'who questions a person under paragraph 2'. It would in my view be somewhat absurd if the same test were not applicable for the asking of questions and the powers of search. But if the officer has in his view grounds for pursuing an examination, in reality he would have the power and it would be lawful to search whether or not the words 'appeared to fall' were substituted.
20. The power of arrest arises if a constable has reasonable suspicion that a person is a terrorist. It may be thought that there is little difference between that state of mind and the appearance to the officer that the person is a terrorist. Mr Basu submitted that there is a difference and that it is possible for a person to appear to the examining officer to be a terrorist but for the officer not to have reasonable suspicion that he is. I am bound to say I find that supposed difference difficult to follow. But I do not think it matters since a power to arrest does not mean that there is an obligation to arrest. Furthermore, the officer may have reasonable suspicion based on his examination and any information he may have been given by the Security Service or from other sources. But he may be aware that a prosecution would not succeed because the evidence on which the reasonable suspicion is based cannot be deployed either because it cannot be divulged to the defendant since, for example, it would be contrary to the public interest to do so or because any admissions which might otherwise be relied on resulted from the obligation to answer questions put in the course of the examination under the Schedule 7 powers. In such circumstances an arrest would clearly be inappropriate. Schedule 7 powers are not conferred in order to enable an arrest to take place.
21. In the course of argument Mr Otty referred to paragraph 4 of Schedule 14 pointing out that it did not state that an examining officer could supply information acquired by him to the Security services. Paragraph 4 is intended to enable information which relates to matters other than terrorism which has resulted from an examination to be passed on. For example, a search may produce material demonstrating a criminal offence such as drug or other smuggling or fraud. Paragraph 4(1)(a) enables information to be given to the Home Office which is relevant to immigration. An example would be a forged passport or answers given indicating that the person was not entitled to entry under the Immigration Rules. There is no need to specify who can receive information about terrorism, since it is obvious that the Security Service, the police and the Secretary of State are proper recipients. In any case, s.19 of the Counter-Terrorism Act 2008 enables relevant information to be given to the security service by anyone.
22. Having set out how in my judgment the Schedule 7 powers can properly be exercised, I turn to consider the facts of this case. The claimant is a British national who left this country in 2007 for Somalia. On 14 January 2011 he was arrested in Somaliland. He was interrogated and, he asserts, severely ill-treated during his interrogation. The authorities there decided that he should be deported to the United Kingdom. In anticipation of his return to the United Kingdom, on 13 January 2011 a control order was made against him pursuant to s.2(1) of the Prevention of Terrorism Act 2005. On 13 January 2011 Silber, J gave the Secretary of State permission to make the order.
23. In order to justify the making of a control order, the Secretary of State had to have reasonable grounds for suspecting that the claimant was or had been involved in terrorism related activity and had to consider that it was necessary for purposes connected with protecting members of the public from a risk of terrorism to make a control order. Thus there had to be reasonable grounds for suspecting that the claimant's terrorist related activities constituted a danger to the inhabitants of this country. Before making a control order, the Secretary of State must consult the police to ascertain whether the person concerned is the subject of a police investigation with a view to prosecution and, importantly, whether there is evidence available which could be used for the purpose of prosecution. The police response in this case was in the negative.
24. On 11 March 2011 the Security Service posted to the police at Heathrow a message stating that the claimant would be arriving at 6.35 am on 14 March 2011. This supplemented what is known as a Ports Circulation Sheet of December 2010 which referred to the claimant and set out a summary of what was known about him. This summary stated that the claimant was believed to have taken part in various extremist activities in Somalia, including terrorist training and facilitating the travel of persons from the United Kingdom to undertake terrorist training. It set out 28 questions which it was suggested should be included in any examination of him if he returned to the United Kingdom. At that time, it was not known when he would be returning nor had a control order been made. It was, however, clear that it was suspected that he was a terrorist.
25. The purpose of the message sent on 11 March 2011 was to request the assistance of the police in relation to the return to the United Kingdom of the claimant. It was said that the senders would be grateful if the police would consider using their Schedule 7 powers to 'interview [the claimant] and gain intelligence about his time spent in Somalia and recent travel to Somaliland'. They were asked in addition to consider carrying out searches of his person and any luggage he might have. It explained that it was assessed that the claimant had been training in an Al-Qaeda camp and fighting for al-Shabaab and assisting extremists to travel to Somalia for terrorist training. Three named individuals were identified as his terrorist associates. It was said that he had been arrested on 14 January 2011 but the authorities had been unable to prosecute him and his associates there but the claimant was to be deported. There were then set out 118 questions which it was suggested should be asked if it was considered necessary to subject the claimant to a Schedule 7 stop 'to gain intelligence about his time spent in Somalia and his recent travel to Somaliland'. The police were asked in the message to 'make a full record of any complaints made by [the claimant] relating to his treatment in detention in Somaliland' but not to be drawn into any discussion regarding HMG involvement in his arrest. Interestingly, when asked about his treatment, he alleged serious ill-treatment but said he did not regard it as torture.
26. The officer who was responsible as Ports Duty Supervisor decided that the Schedule 7 powers should be used as requested. He explained the basis of his decision in his statement produced before me saying, in Paragraphs 7 and 8:-

"7. The receipt of information such as above does not automatically result in officers exercising their Schedule 7 powers. For example, there have been occasions where a PCS may not be up to date and in such a case I would go back and question the originator. Furthermore, there have been cases where the request has been referred back to the originator to clarify information in order to assist me in carrying out my review. This includes cases where, for example, a stop has been suggested not long after officers have previously stopped a person. I understood the 11^th March message to be a request, together with necessary information sharing, and the decision whether or not to exercise the Schedule 7 power was a policing decision.

8. The purpose for which people are stopped pursuant to Schedule 7 is to determine whether a person is, or has been, concerned in the commission, preparation or instigation of acts of terrorism ("CPI"). I can confirm that this is the purpose for which CC was stopped on 14^th March 2011. However, as the public would expect, information is shared between the police and the U.K. intelligence services and that can result in intelligence led stops and it can involve the police being provided with information as to questions that may assist in determining whether the person stopped is or has been concerned in CPI."

27. Two officers carried out the examination. In Paragraph 4 of his statement, one of the two says this:-

"Prior to stopping CC on the morning of the 14^th March, [the other officer] and I received and read the information received … about him. I therefore knew that a Control Order had been made in respect of him and was due to be served on him when he arrived at Heathrow. Moreover, I accept that given what I had read about CC he appeared to be a person falling within s.40(1)(b) of TACT … However, I considered that the use of my powers under Schedule 7 was necessary and justified for the purpose of determining whether he was, in fact, someone who appeared to be [a terrorist]."

He records that the examination lasted for about 6 hours and that the claimant was co-operative and pleasant throughout. While the claimant said he did not regard his ill-treatment as torture, the officer felt it necessary to take the steps required if torture allegations were made having regard to the nature of the treatment described by the claimant.

28. Mr Otty made an application to cross-examine the two police officers whose statements were produced by the first defendant. The two issues which he said needed investigation by way of cross-examination were whether they had already determined that the claimant appeared to be a terrorist and whether the powers were exercised solely or predominantly not for the purpose of making such a determination but in order to provide information for the Security Service to use in the control order proceedings. Cross examination is rare in judicial review claims and is only allowed if there are factual issues which must be resolved if the claim is to be properly considered. That is not the case here. Mr Otty was able to assert that, even if they believed that they were entitled to exercise the Schedule 7 powers, in truth in the light of what they knew in advance and the nature of the request made by the Security Service they were not. Cross-examination would not have assisted, particularly as the good faith of the officers was not only not material if they were wrong but was not likely to have been established. Accordingly I refused the application.
29. It was accepted by the officers that the claimant did on the information available to them, in particular the existence of the control order, appear to be a terrorist. The request from the Security Service with the 118 questions was not likely to cast any doubt on that; quite the contrary. It was clear that the claimant was reasonably suspected not only to be a terrorist for what he had done in Somalia but was a danger to the inhabitants of this country. The request in terms was to gain intelligence about his time spent in Somalia and his travel to Somaliland. Thus there was no question of a determination being needed in respect of terrorism of a different nature to that which already appeared to exist.
30. Mr Otty submits that on the evidence the sole and certainly the predominant purpose of the examination was to provide information to the Security Service to assist it in the control order proceedings. The Security Service was aware that ill-treatment which might be regarded as torture had been alleged and so information obtained by the authorities in Somaliland might be inadmissible. It might help if questioning to which answers had to be given elicited any useful information.
31. Mr Basu submitted that the officers were entitled to question to find out more about the nature of his terrorism. Furthermore, since the determination did not have to be made by the examining officers (albeit the officer's statement rather suggests that it was his view that it was for them in the circumstances) any information might assist in establishing whether the view formed leading to the control order was correct. As I have already said, in principle how and the extent to which a person appears to be a terrorist can provide a lawful justification for a Schedule 7 examination.
32. However, all will depend on what the officers knew and why they decided to use their powers. Thus I do not doubt that they were entitled to establish that the claimant was indeed CC and the person the subject of the request from the Security Service, but that would not have involved more than a short examination. Beyond that, it is difficult to see what there was to determine since the Security Service and the police, who had been asked for their views pursuant to s.8 of the 2005 Act, had reasonable suspicion covering what he had done in Somalia and what he was expected to do in the United Kingdom if not subjected to a control order. The officer in Paragraph 4 of his statement accepts that the claimant appeared to him to be a terrorist from what he knew about him. His justification for the use of the Schedule 7 powers based on the need to determine whether he was in fact a terrorist is difficult to accept having regard to the questions which he was requested to and did ask.
33. While the officers may have asked a few questions which went beyond those 118 set out in the request, in essence they followed the script. As it happens, they got hardly anything of use since the claimant denied in some cases knowledge of and in all cases involvement in any terrorist activities with the various persons whose names were put in the questions in the request. In their report, the officers detail his allegations about his ill-treatment. While this might assist in the admissibility of evidence in the control order proceedings, it has nothing so far as I can see to do with the question whether he was a terrorist. When it was put to him that he was involved in al-Shabaab, it is recorded that, although he denied any such involvement, his "conversation and body language 'closed down'". The same applied when the name of a particular alleged terrorist with whom he had been, it was alleged, involved was put to him. This is said by Mr Basu to be of some significance and could help in the determination whether he appeared to be a terrorist.
34. I am afraid that I am satisfied that this was not a proper use of the Schedule 7 powers. It was clear that the Security Service for entirely understandable reasons was anxious if possible to get information which could not be regarded as tainted by any torture allegations or which might confirm the propriety of a control order. This had nothing to do with determining whether he appeared to be a terrorist in any particular way.
35. I have no doubt that this is a very rare case and that this decision will not damage the efficacy of the powers. They are properly given a wide construction for the reasons I have set out but cannot extend to the facts of this case.
36. I can deal briefly with further grounds which were raised in relation to a request made by the claimant for a solicitor. Paragraph 7 of Schedule 8 entitles a person detained at a police station to consult a solicitor. It is not clear to me why the Act limits the right to detention in a police station since, as this case shows, detention frequently will not be at a police station. It may, I suppose, have something to do with the knowledge that there are many ports in the country at which the powers can be exercisable. Some are remote and there may be unacceptable delays and difficulties if legal advice is sought save at a police station.
37. However, the TACT1 notice states that there is right to consult with a solicitor provided it causes no delay. The same information is given in the TACT2 notice but, once there is detention, it is said that a superintendent or above can authorise a delay. But each notice stated that such consultation or advice sought over a telephone would not be at public expense. When informed of this, the claimant did not pursue the request since he said he could not afford to pay.
38. It is accepted that the notices were wrong in stating that access to a solicitor would not be at public expense. Albeit Schedule 8 Paragraph 7 limits the right to detention in a police station, it will continue to be permitted wherever the detention is taking place. There is nothing unlawful in the decision to go beyond what the Act specifically allows in the interests of fairness to the person being examined.
39. It is incidentally difficult to see what contribution a solicitor could usefully make since there is an obligation to answer questions put and to submit to searches and the taking of samples can occur in the circumstances set out. A solicitor could perhaps act as an observer to ensure proper procedure, but beyond that he would have nothing to do.
40. In the circumstances, it is unnecessary to say anything more about this aspect of the claim.