Schedule 7 of the Terrorism Act 2000 (brought in by Tony Blair’s Labour government BEFORE the 9/11 attacks on which the loss of much of our liberties is explained) makes very interesting reading.
Paragraph 2 of schedule 7 says that you can be questioned “for the purpose of determining whether [you] appear[s] to be a person falling within section 40(1)(b)”
40(1)(b) defines a terrorist as someone who ‘is or has been concerned in the commission, preparation or instigation of acts of terrorism.’
It is difficult to see how David Miranda fits in to that definition. However, that’s not the point… because the police are entitled to question you, me anyone, for the purpose of ascertaining whether we appear to be terrorists, even if they don’t really think or believe that we are, and even if they know that we are not. They have absolute discretion to stop anyone they like for the purpose of determining whether you ‘appear’ to be a terrorist. In fact according to paragraph 2 sub paragraph 4 says that ‘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).’
It gets worse. We might think, well that’s OK – it’s only when we’re in airports because this legislation is only designed for borders and port areas, and we’re hardly ever in such places. It is true that the police can only exercise these powers in a ‘port’ or ‘border area’. The border area is defined as a place within 1 mile of the border between Northern Ireland and the Republic of Ireland, or at the first stop of a train which comes over the border from the Republic of Ireland.
A port is defined as any place “if an examining officer believes that the person—(a)has gone there for the purpose of embarking on a ship or aircraft, or (b)has arrived there on disembarking from a ship or aircraft” Under a 2001 amendment this refers to any air travel _within_ the UK. Ship is not defined. We are only told that it includes a hovercraft. Perhaps the we should be extra careful when embarking on the Browsea Island Ferry?
So, the next time you travel on a flight from Manchester to Southampton or from Luton to Edinburgh, or get on a ‘ship’ you can, lawfully (on the restricted definition of lawful as ‘something on the statute-book’), be questioned, without reasonable cause, suspicion or evidence. During that questioning you must:
(a) give the examining officer any information in [your] 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 [your] identity;
(c) declare whether [you have with you] documents of a kind specified by the examining officer;
(d) give the examining officer on request any document which [you have with you] and which is of a kind specified by the officer.
Other ‘goods’ and ‘things’ can be seized under paragraphs 9 to 11. The examining officer may retain such ‘goods’ or ‘things’ while he ‘believes that [they] may be needed for use as evidence in criminal proceedings.’
So, what procedural protections are in place to protect the rights of those questioned under Schedule 7? Well – I can’t find much. The questioning can only(!) last up to 9 hours. You have no right to a phone call. You have no right to legal advice. You have no protection under PACE (the code specifically carves out Schedule 7). Schedule 14 of the Terrorism Act 2000 gives the officer the power to ‘use reasonable force’ in exercising Schedule 7 powers. Schedule 14 also requires that ‘The Secretary of State shall issue codes of practice about the exercise by officers of functions conferred on them by virtue of this Act’, which can be brought into force by order – i.e. with the minimum of fuss and parliamentary oversight.
The only codes that I can find that relate to Schedule 7 are here:
The code requires refreshment and an explanation of the circumstances in which the person is being questioned. The officer has only to summon up a reasonable belief that the detainee has concealed some information before he can peform a strip search (but not body cavity search). There are draft codes for videoing such questioning, but these are not in force. None of the other PACE protections are present.
You might think that you would resist – and you might be tough enough to do that. David Miranda must have known that he was at risk of this sort of intervention, and perhaps he prepared for it. He was forced to give up his passwords. The officers can ask you about anything. State sponsored fishing expeditions into your private life can be undertaken if you step onto an air-plane or ship. If you do continue to refuse to co-operate over the 9 hours that you’re questioned without recourse to legal advice, perhaps after being strip searched, with no idea whether your friends know where you are, then you face up to three months in jail.
And it is all, totally, lawful. This sort of legislation is so dangerous because it is so widely defined and can be so readily and quickly abused. This is another case which shows that we need to retain membership of the ECHR.