Terrorism - Detention - Claimant being arrested in Somaliland - Claimant being deported to UK

CC v Commissioner of Police of the Metropolis and another: QBD (Admin) (Mr Justice Collins): 20 December 2011

Schedule 7 to the Terrorism Act 2000, provides, so far as material: ‘1(1) In this schedule "examining officer" means any of the following - (a) a constable, (b) an immigration officer, and (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).’

The claimant was a British national. In 2007, he left the UK to travel to Somalia. In January 2011, he was arrested in Somaliland. The authorities in Somalia decided he should be deported to the UK. In anticipation of his return to the UK, a control order was made against him pursuant to section 2(1) of the Prevention of Terrorism Act 2005. On 11 March 2011, the Security Service posted a message to the police at Heathrow stating that the claimant would be arriving on 14 March.

The message supplemented a ports circulation sheet of December 2010 which referred to the claimant and set out a summary of what was known about him. The 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 UK to undertake terrorist training. The purpose of the message was to request the assistance of the police in relation to the return to the UK of the claimant. It was said that the senders would be grateful if the police would consider using their powers under schedule 7 of the Terrorism Act 2000 (the schedule 7 powers) to ‘interview [the claimant] and gain intelligence about his time spent in Somali and recent travel to Somaliland’.

There were 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’. The officer who was responsible as ports duty supervisor decided that the schedule 7 powers should be used as requested. Two officers carried out the examination which was recorded as lasting approximately six hours. The claimant applied for judicial review of the decision to exercise the schedule 7 powers against him.

One of the officers gave evidence that he considered the use of the schedule 7 powers was necessary for the purpose of determining whether the claimant was, in fact, someone who appeared to be a terrorist.

The principal issue that fell to be determined was the scope and extent of the powers laid down in schedule 7 of the 2000 act. Consideration was given to section 40(1)(b) of the 2000 act, which defined a terrorist as a person who ‘is or has been concerned in the commission, preparation or instigation of acts of terrorism’.

The court ruled: (1) The powers created by schedule 7 of the 2000 act were far reaching and, so far as the power to detain was concerned, affected the liberty of the person. Accordingly, they had to be, in principle, strictly construed and it was incumbent on the officer to inform the person that he was being detained and why. The fact that detention was not used in the vast majority of cases where a schedule 7 examination was considered necessary did not affect the correct construction of the powers since detention might be required. The only purpose of any examination had to be to determine whether he was a terrorist within the meaning of section 40(1)(b) of the 2000 act.

The existence of prior information suggesting that he was or might be a terrorist would not determine whether an examination could properly be carried out, but the nature of that information might in a given case be determinative. The existence of prior information was likely in many cases to mean that an examination would be considered to be necessary. However, the officers were able to act on an intuitive basis even if no prior information existed. The wording of section 40(1)(b) was important. It recognised that it had to be open to an officer to act under schedule 7 to determine whether a person appeared to be or to have been concerned in the commission, preparation or instigation of an act of terrorism and to identify any acts constituting that concern.

Accordingly, even if it appeared that he had in the past been concerned in any such acts, it was open to the officer to examine him to determine whether he was still so concerned. Equally, it might be apparent that he was concerned in acts against a foreign government, but it had to be open to officers to examine him to determine whether these acts affected the UK or, indeed, any country other than that affected by his known acts. The language of section 40(1)(b) was wide enough to allow for examination not only of whether he appeared to be a terrorist, but also of the way in which, or the act by which, he so appeared. In principle, how and the extent to which a person appeared to be a terrorist could provide a lawful justification for a schedule 7 examination. However, all would depend on what the officers knew and why they had decided to use their powers (see [8], [13]-[16], [31]-[32] of the judgment). Pedro v Diss [1981] 2 All ER 59 ­considered.

(2) There might come a point when the officer considered that the examinee did not appear to be a terrorist, but his conclusion might not be shared by others and might, when what emerged from the examination or any search was put together with other material which might, for example, be in the possession of the Security Service, be shown to be wrong. Equally, further examination might show that the officer’s view formed at a particular point was wrong. Again, he had to be able to ask all questions that he reasonably believed to be needed to enable him or others to reach the necessary determination. The power of arrest arose if a constable had a reasonable suspicion that a person was a terrorist.

The power of arrest did not mean that there was an obligation to arrest. The officer might have a reasonable suspicion based on his examination and any information he might have been given by the Security Service or from other sources. However, he might be aware that a prosecution would not succeed because the evidence on which the reasonable suspicion was based could not be deployed either because it could not 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 were not conferred in order to enable an arrest to take place (see [17]-[20] of the judgment).

(3) In the instant case, there had not been a proper use of the schedule 7 powers. It was clear that the claimant was reasonably expected not only to be a terrorist for what he had done in Somalia, but was a danger to the inhabitants of the UK.

The request in terms was to gain intelligence about his time spent in Somali 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. The officers had been entitled to establish that the claimant was the person who was the subject of the request from the Security Service, but that would not have involved more than a short examination.

Beyond that, it was difficult to see what there was to determine since the Security Service and the police had reasonable suspicion covering what he had done in Somalia and what he had been expected to do in the UK if not subjected to a control order. The officer’s justification for the use of the schedule 7 powers based on the need to determine whether he was in fact a terrorist was difficult to accept having regard to the question which he had been requested to and had asked (see [29], [32]-[34] of the judgment).

Tim Otty QC and Dan Squires (instructed by Birnberg Peirce) for the claimant; Dr Dijen Basu (instructed by solicitors to the Metropolitan Police) for the commissioner of police; Jonathan Hall (instructed by the Treasury Solicitor) for the secretary of state.