The use of Schedule 7 of the Terrorism Act 2000

Report: 5
Date: 10 September 2009
By: AC Specialist Operations on behalf of the Commissioner

Summary

This report provides information about the MPS’s use of powers under Schedule 7 of the Terrorism Act 2000, and sets out data monitoring information together with commentary on the impact (if any) on different community groups.

A. Recommendation

Members are requested to note the contents of this report.

B. Supporting information

1. This report examines the use of the MPS’s powers under Schedule 7 Terrorism Act 2000 (“the Act”). The term “examining officer” is set out in paragraph 1(1) of Schedule 7 to the Act, and includes a constable, an immigration officer or customs officer designated for the purpose of the Schedule by the Secretary of State and the Commissioners of Her Majesty’s Revenue and Customs. An examining officer, who in most cases in London is an SO15 Counter Terrorism Command Ports police officer, may question any person who he or she believes to be entering or leaving Great Britain, to determine whether that person appears to be involved in the commission, preparation or instigation of acts of terrorism, and may stop and detain a person to exercise this power.

2. A person questioned under this power must give any information that the officer requests, and hand over any passport or document that the officer asks for. It is an offence to fail to do so.

3. The officer has the power to search such a person and anything he or she has with him or her. However, the primary purpose of Schedule 7 is not to conduct a search and not every examination will automatically result in a search. In practice, the MPS’s experience is that on many occasions a search has not been required.

4. If the person insists on leaving or refuses to co-operate, the officer may detain that person. This is not an arrest and is not subject to provisions of the Police and Criminal Evidence Act, 1984 (PACE). The examination and detention must not last longer than nine hours from the time the examination begins.

5. Under paragraph 2(4) of Schedule 7, the powers to stop, question, detain and search persons do not require an examining officer to have any grounds for suspicion against any individual prior to the exercise of the powers, which means that it is a much wider power than is usually available to the police.

6. The Codes of Practice issued by the Home Office, “Examining Officers under the Terrorism Act 2000”, states that examining officers should 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. The Codes of Practice also provides commentary on how to interpret the legislation. In particular, the notes provide that officers should, when deciding whether to exercise their Schedule 7 powers, 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 the 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.

7. It further states that the selection 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 around the United Kingdom. In no way should a person’s perceived ethnic background or religion be used alone or in combination with each other as the sole reason for selecting the person for examination.

8. Within the MPS the use of Schedule 7 powers is strictly limited to Ports officers from SO15 Counter Terrorism Command. All SO15 Ports officers have been provided with significant, nationally accredited, bespoke Ports training, covering the use of all of their powers, especially regarding Schedule 7 and the Code of Practice.

9. Schedule 7 is utilised principally at seven key ports within the MPS which service international transiting passengers. These are Heathrow Airport, St Pancras International Rail Station, City of London Airport, Biggin Hill Airport, RAF Northolt, Port of London at Wapping and Battersea Heliport.

10. The National Coordinator Protect (NC Protect, previously known as National Coordinator Ports Policing) has the lead to coordinate the United Kingdom’s response to terrorism at its ports and borders on behalf of the Association of Chief Police Officers. Since April 2009, the office of the NC Protect has collated, on a quarterly basis, data relating to Key Performance Indicators for national security actions at UK’s ports.

11. Data regarding the number of searches or the faith of persons dealt with under Schedule 7 is not recorded.

12. There is a live discussion between NC Protect and the Association of Police Authorities and others regarding the transparency and release of Schedule 7 data. This information is considered by NC Protect to be confidential information that cannot be disclosed on the basis of national security.

13. The MPS does hold, as required, data relating to stops that go beyond screening questions. These examinations are recorded on a formal report, and are held centrally.

14. The Codes of Practice require records of all examinations to be kept locally at a port, border or police station in the event of a complaint or query, but, in addition, a record of all exams over an hour should be held centrally for statistical purposes. The record should include the name of the person examined; the total duration of the examination from start until completion; whether the person was detained and if so when the detention began and ended.

15. Members will be aware that some concerns were raised last year in Strathclyde and Leicestershire about the use of Schedule 7 powers impacting disproportionately on BME groups. Anticipating that some communities in London may share similar concerns, SO15 Ports developed the Ports Community Strategy in support of the ‘Prevent’ strand of the Government’s CONTEST counter terrorism strategy.

16. The aim of the Ports Community Strategy is to engender community confidence in policing by minimising any harm caused to communities through the use of police powers at Ports in support of our counter terrorist and national security duties. It is predicated on being open and transparent about our activities at London’s ports, within the bounds of national security, and has a number of supporting objectives. It was built in conjunction with partners including the MPS’s Muslim Contact Unit, and was shared with other Ports units via the NC Protect. It has been uniformly well received.

17. To support the strategy, SO15 Ports recently (since mid-July) began to record the ethnicity of those being examined. This is officer-defined using standard police descriptions primarily from their observation, rather than being actively sought from the person stopped. This will enable the SO15 Ports to better identify the impact of Schedule 7 within its port areas.

18. A major component of the strategy has been reviewing working practices to ensure that, amongst other benefits: officers’ activity is based around intelligence-led taskings rather than intuitive stops; quality, intrusive supervision is carried out; and powers are only used appropriately.

19. SO15 Ports has also established a Ports Community Engagement Team and as part of the Ports ‘Prevent’ Action Plan the team has been liaising with the MPS ‘Prevent’ teams based at the boroughs of Newham, Waltham Forest, Tower Hamlets and Hounslow.

20. The purpose of this interaction has been three-fold. Firstly, to raise awareness amongst MPS community teams as to the purpose and use of Schedule 7 powers deployed by Ports officers, so that these teams are able to respond with some knowledge to any related community concerns that they may encounter as part of their daily work.

21. Secondly, with the support of the local community teams, to raise the awareness of key community members in order to de-mystify the role of Ports officers and to ensure that the community have a good understanding of our aims, basic working practices and the law.

22. Thirdly, this engagement also allows us to hear and deal with community concerns such as any perceived disproportionate targeting of particular faith or race groups. It provides an opportunity for open engagement that will hopefully lead to a better mutual understanding. This approach has involved a range of activities such as: presenting at community meetings and engaging with groups and individuals who attend; engaging with groups such as the Pan London Somali Youth Forum, Muslim Safety Forum and the Newham Alliance; hosting visits from MPS minority support groups and ‘Prevent’ teams from Boroughs. It has certainly worked well to date, with positive feedback from both police and community members.

23. SO15 Ports has provided Muslim and Sikh awareness training for its staff, and also provided detailed training in areas such as the avoidance of profiling, in addition to departmental instructions in accordance with the Codes of Practice.

24. The MPS is determined to understand and respond to the concerns raised through our consultation and engagement programme; one of the most frequently articulated of these was that there was a need for greater clarity and information at the actual point of interdiction. To help address this, the MPS has produced a short but definitive leaflet that explains the law and police powers at ports, and we will be providing this to all those who are stopped under Schedule 7. This leaflet is available in a number of languages, although it does not negate the MPS’s duty to provide an interpreter where required. A copy is attached at Appendix 1. NC Protect are rolling out a national version that is very similar in style and content.

25. In addition to the Codes of Practice, Practice Advice Notes are currently being drafted by NC Protect and will be disseminated amongst officers on approval.

26. Lord Carlile of Berriew Q.C. has independently reviewed powers under terrorism legislation and their exercise by officers across the UK, and in June 2008 produced a “Report on the Operation in 2007 of the Terrorism Act 2000 and of Part 1 of the Terrorism Act 2006” (“the report”) which can be found on the Home Office website. In his report, on page 34, he notes at paragraph 144, that he “has received fewer complaints this year than ever before”. He further states at paragraph 145, that he has “received no complaints about the treatment of members of the public at ports in 2007…. [and] conversations with passengers at air and sea ports suggest general acquiescence that searches and other forms of vigilance are reassuring as long as they are proportional”. It is the MPS’s view in light of its experience that the powers under Schedule 7 are being exercised appropriately.

27. Lord Carlile has visited SO15 Ports on a number of occasions, most recently to Heathrow in March 2009. Particular attention was paid during this visit to the tasking process, and Lord Carlile declared himself to be satisfied with the intelligence-driven approach that is in operation, and expressed no concerns as to the application of Schedule 7 at London’s ports.

28. In summary, Schedule 7 is not a stop and search power in the way that Section 1 PACE, Section 60 Criminal Justice and Public Order Act 1994, or Section 44 TACT are. Its use is confined to ports for a very specifically defined purpose. Data regarding this is centrally collated by NC Protect, (but ownership remains with the force) and the national position advises forces not to release Schedule 7 data in the interests of national security. SO15 Ports has put in place several measures to mitigate the impact of the use of Schedule 7 on certain community groups, through careful review of practices and exercise of powers in accordance with the legislative guidelines. Lord Carlile’s report reaffirms the national position in respect of use of powers at page 36, in which he states that “[he] is satisfied that in 2007 the port powers and checks and balances on those powers worked well and remained necessary”.

C. Race and equality impact

There are clearly some very sensitive race and equality implications arising from this report, all of which have discussed in the text above.

D. Financial implications

There are no financial implications for the MPA.

E. Legal implications

1. The MPS’s examination powers at ports are set out in Schedule 7 under the Terrorism Act 2000 (“the Act”), as amended, and they can only 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. These powers must not be used to stop and question persons for any other purpose and must be used proportionately, reasonably, and without unlawful discrimination. Also, an examination by an officer 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.

2. The MPS’s officers are also under a duty to adhere to the Home office Code of Practice “Examining Officers under the Terrorism Act 2000” which has been issued pursuant to paragraph 6(1) of Schedule 14 of the Act, which provides guidance for examining officers in relation to the application and interpretation of their powers under the Act.

3. The Home Office Manual on Stop and Searches by Police confirms that the National Coordinator Prevent will issue instructions to officers at ports as soon as a ministerial decision has been made in relation to whether or not all Schedule 7 stops require to be recorded. Until such time, the only stops that which require monitoring are those that fall under Schedule 7 of the Act, as referred to in the report.

F. Background papers

• Appendix 1: Why do police stop passengers at ports?

G. Contact details

Report author(s): A/Detective Superintendent Julian Jeffery, SO15 Ports, MPS

For information contact:

MPA general: 020 7202 0202
Media enquiries: 020 7202 0217/18

Abbreviations

BME

Black and Minority Ethnic

CONTEST

Counter Terrorism Strategy

NC

National Co-ordinator

PACE

Police and Criminal Evidence Act

SO15

Counter Terrorism Command

TACT

Terrorism Act Appendix 1 - Leaflet “Why do Police Stop Passengers at Ports”

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