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The following is not intended to be a legalistic analysis of The Terrorism Act 2000 (TACT 2000) but rather a practical guide to key provisions of the act, in particular, their relevance to arrest and detention.
The introduction of TACT 2000 was staggered over a period of time from 20 July 2000 until mid 2002. Most of the provisions are now in force and have been supplemented by the Anti-terrorism, Crime and Security Act 2001 which was enacted in the aftermath of September 11th 2001.. When TACT 2000 came into force, the infamous Prevention of Terrorism Act (temporary provisions) Act 1989 was repealed.
As might be expected the concept at the heart of TACT 2000 is terrorism and the powers granted to the police and other agencies. A number of new offences are created and several fundamental principles are challenged. For instance if a person, in the course of their employment or trade, suspects that another person may be involved in fund raising for terrorists, they will be committing a criminal offence if they do not tell the police about their suspicion. In relation to other offences TACT 2000 challenges the centuries old principle of a defendant being considered innocent until proved guilty, with the burden of proving that guilt, beyond reasonable doubt on the prosecution. TACT 2000 sets out a number of offences where it is for the defendant to effectively prove their innocence.
TACT 2000 grants police officers and other agencies a number of far-reaching and draconian powers. It is beyond the remit of this section to consider the variety of different offences created by this Act. Central to this new Act however is the concept of ’Terrorism’ and a ‘Terrorist’. Many of the provisions of TACT 2000 depend on the relevant authorities suspecting someone of being a terrorist.
This short article demonstrates that the provisions of TACT 2000 give the police authorities very wide powers. As a result, people who are entirely innocent and respectable may find themselves subject to the TACT 2000 provisions. If this happens to you, there are some important things to remember, some of which are discussed in more detail below:
Terrorism – a definition
The new Act defines terrorism as (Section 1(1) & (2) TACT 2000):
‘the use or threat of action where the action –
In addition the use or threats of the above actions are:
It will be clear, from this definition that a wide variety of direct action political protest activity can now be defined as terrorism. The consequences of labelling such activity as 'terrorism' are considered below. For instance the police may argue that persons causing expensive damage to premises selling a book they find offensive, or causing damage to military property as a result of anti-war protests, now fall within the definition of terrorism.
A ‘Terrorist’ is defined in the legislation (Section 40(1)) as someone who either ‘is or has been concerned in the commission, preparation or instigation of acts of terrorism’ (as defined above) or has committed one or more of a number of specific offences.
TACT 2000 sets out the powers of police officers and courts in relation to people arrested/ detained under the Act.
Power of Arrest
There are two key powers to arrest and/or detain a person under TACT 2000. These are:
Under this provision a police officer can arrest a person he reasonably suspects to be a ‘terrorist’. In other words he must reasonably suspect the person of having committed one of the offences set out above or of being a person who ‘is or has been concerned in the commission, preparation or instigation of acts of terrorism’. The concept of ‘being concerned’ is not defined or expanded upon. Police officers often seek to interpret these powers very widely.
Arrest under this provision involves the same basic procedure as arrest in non-terrorist criminal cases. There are restrictions (set out below) on suspects rights once detained. The key point to note is that if arrested under this provision you still have the right to silence. However, exercising your right to silent may have important consequences later on. It is always prudent to take advice from an experienced solicitor before deciding whether or not to answer questions. As stated above, you have a right to such advice free of charge.
It is important to stress that whilst the TACT 2000 represents a significant erosion of our civil liberties, the police must still be satisfied that they have reasonable grounds to suspect some one of being a terrorist. Whilst the threshold is inevitably very low, they do not have the power to arbitrarily arrest and detain people. It must be noted however that under the TACT 2000 as with police powers generally, an officer can use reasonable force to detain a suspect.
If arrested you will be taken to a police station where your detention must be authorised by a custody officer. If a suspect is arrested for non-terrorist offences the police must ensure they are taken to the closest designated police station. Under TACT 2000 the police can take a suspect to any police station they deem most suitable. In London this is invariably Paddington Green Police Station. Most lawyers advise that at this stage it is important to maintain your right to silence and insist on legal representation.
This section of the TACT 2000 relates to ports and airports. It allows an ‘examining officer’ (usually police officers or immigration officers) to ‘detain’ a person to determine whether s/he ‘appears to be’ a person who ‘is or has been concerned in the commission, preparation or instigation of acts of terrorism’. The ‘examining officer’ must however believe that the person’s presence at the port or airport is connected with their travel to or from the UK. This means dropping off or collecting a traveller at the port or airport should not bring one within the remit of Schedule 7.
Unlike the powers of arrest under section 41 the relevant ‘examining officer’ does NOT need to have reasonable grounds for suspecting that a person ‘is or has been concerned in the commission, preparation or instigation of acts of terrorism’. Many people are concerned that police and immigration officers will interpret this power as a licence to interrogate persons on a prejudiced basis, e.g. because they appear to be Muslim. However, that would almost certainly be an unlawful abuse of the power. If you suspect you have been stopped for that reason alone, you should consult an experienced solicitor as soon as possible.
You should feel free to ask why you have been detained and why you are suspected of being concerned in acts of terrorism. Although the police or immigration do not have to answer such questions immediately, their failure to give you a clear answer may be important later on.
If stopped by an ‘examining officer’ at a port or airport the person MUST:
The information or documents the examining officer can seek must only be to do with establishing whether you ‘appear to be a person’ who is or has been ‘concerned in the commission, preparation or instigation of acts of terrorism’.
A person detained under Schedule 7 is not under arrest. If they ‘wilfully’ obstruct or try to frustrate a search or examination by an examining officer they will be committing a criminal offence (Schedule 7 para.18).
In practise this means that if you are detained at a port or airport under Schedule 7 you do NOT have the right to silence because if you fail to co-operate with the examining officer you will be committing a criminal offence.
The ‘examining officer’ will generally have a ‘pro forma’ issued by the local constabulary with a set of questions to be asked of the detained person. These include personal details such as age, date of birth and occupation. Some are more detailed including questions about parents, siblings, political background and membership of organisations. The lawfulness of such a broad range of questions has not yet been challenged. It seems however that the person detained is not required to provide a detailed and lengthy answer to the questions asked. Single word answers to questions involving ‘political affiliations’ (i.e: democrat!) have not resulted in prosecution. You can insist on seeing a solicitor (see below).
The Schedule 7 examinations generally take place at the port/ airport but the detained person can also be taken to a police station.
A person detained under Schedule 7 cannot be detained for longer than 9 hours. After this they must either be released or arrested under Section 41 (or for a non terrorist matter).
Detention under Section 41 is initially 48 hours (S.41 (3)). At this point the police must release a suspect or apply to a magistrate to detain them for longer.
Often the police will speak to the magistrate in the absence of any defence representatives. There is then a hearing with the defence representatives present. If the magistrate is satisfied that the further detention of a suspect is necessary to obtain ‘relevant evidence’ and the investigation is conducted ‘diligently and expeditiously’ the police will be granted an extension (Schedule 8 para. 32). The maximum period of detention allowed before charge or release is 7 days.
Under the PTA 1989 applications to extend the period a suspect could be held in police custody before charge were made, by the police, to the Home Secretary. Even though the PTA 1989 allowed for detention up to 7 days, the Home Secretary rarely granted the full period. At present however magistrates very rarely refuse to extend the period in line with the police request, often up to the maximum 7 days.
Whilst in custody, whether under Section 41 or Schedule 7, a suspect has the right to have a friend, family member or someone interested in the detained persons welfare notified of their detention. The suspect does not have the right to make the phone call personally. In certain circumstances this right can be suspended by a senior police officer if, (in the view of the police) notifying others might cause interference with collecting evidence or gathering information, result in physical injury to some one, alert others suspected of the offence, hinder the recovery of property or alert someone so making it more difficult to prevent an act of terrorism.
When in custody a suspect has the right to consult a solicitor privately and at any time. Legal advice received whilst in the police station is always free. As TACT 2000 cases are complicated the suspect should ensure that the solicitor has some experience of such matters.
A senior police officer can suspend this right for the same reasons as apply to notifying a named person. The senior officer must specify the period of a suspect’s detention incommunicado.
Frequently, as soon as a suspect arrives at a police station they will be strip-searched. Officers of the same sex must obviously carry the search and the suspect cannot, at any point, be completely naked. The suspect (whether detained under Schedule 7 or Section 41) will also be asked to provide a number of samples. These could be fingerprints, a non-intimate sample and occasionally intimate samples.
A senior officer can authorise the taking of non-intimate samples and finger prints if he believes that these will ‘tend to prove or disprove’ the suspects involvement in a ‘terrorist’ offence (see above). If a senior officer authorises the taking of the fingerprints and non-intimate samples the suspect will be asked to consent. If they do not consent, the fingerprints and non-intimate samples can be taken using reasonable force.
Non-intimate samples include hair (though not pubic hair), swab taken from any part of the body including the mouth (though not any other body orifice), saliva and impressions of any part of the body other than the hand (which would be a fingerprint).
Intimate samples include blood, semen or other bodily fluids, dental impressions or a swab from any body orifice other than the mouth. A request for such samples can only be made with the authority of a senior officer. If a suspect refuses, any attempt by the police to take the samples by force will be an assault. In any event many of these intimate samples can only be taken by doctors who will not do so if a suspect refuses. There are consequences of refusing to provide a sample, which must be discussed with the solicitor.
The police can also take photographs of a suspect. They can do this before charge if identification is likely to be an issue. Photographs are routinely taken after charge (‘mugshots’). Whilst the police are entitled to take these photographs, a suspect can also refuse to be photographed. The police cannot use force to pose a suspect for a photograph.
In Paddington Green Police station in London there is an established practice that practising Muslims will be provided with a copy of the Koran, a prayer mat and the direction of Mecca will be pointed out. The custody officer is familiar with the times of prayer and notifies the suspect accordingly. The food is halal. The police must also provide a regular change of clothes as well as washing facilities. If you are being denied such facilities at Paddington Green, or elsewhere, you should immediately contact an experienced solicitor. The solicitor would be able to make formal representations on your behalf, and ensure that appropriate facilities are provided for you. Again, you are entitled to such a solicitor free of charge.
There are a number of differences between search powers within the TACT 2000 and powers available in non-terrorist cases. We set out below some of the key search powers including both those under TACT 2000 and the general powers applicable to all offences, under the Police and Criminal Evidence Act 1984, Misuse of Drugs Act 1968.
The key search powers are:
Stop & Search:
Police officers generally have a power to stop and search people if they reasonably suspect they may be in possession of drugs, certain weapons, stolen goods etc. They can also stop and search someone thy reasonably suspect of being a terrorist and the search may lead to discovery of evidence that the person is a terrorist.
In addition a senior officer may authorise additional stop and search powers for a specified area if the officer considers it expedient for the prevention of an act of terrorism. This authority can initially be for a maximum of 48 hours. After this the Secretary of State must confirm the authorisation up to a maximum of 28 days.
In an area or place subject to the authorisation officers can search, pedestrians and anything they may have with them as well as any vehicles, drivers or their passengers within the area. Officers can exercise this power whether or not they have reasonable grounds to suspect the person they propose to search.
Schedule 7 of TACT 2000
As with the power to ‘stop, question & detain’ considered above, the Schedule 7 power to search only relates to ports and airports. In order to assess whether there are persons he may wish to question, an examining officer can search ships and aircrafts as well as anything or those vessels.
Anyone stopped and questioned or detained under Schedule 7 can also be searched (as well as their property), as well as his or her vehicle (at ferry ports of instance).
As with most searches someone of the same sex must carry them out.
As set out above, this is not a complete and detailed analysis of the TACT 2000. It has been well publicised that the new Act is so broad in its definition of ‘terrorism’ that it is possible a great deal of previously lawful political activity may now be criminalized. A thorough understanding of the provisions of the legislation is therefore essential and most importantly if arrested under this act legal advise and representation is crucial.
There are a number of very important decisions to be made, each of them with significant consequences every time the police detain a suspect (for instance, there are consequences to refusing samples or refusing to answer questions in police interviews). These must be considered in detail together with a legal advisor who should have experience of such cases.
Note: Magistrates, on the application of a senior officer, can grant warrants (as in non terrorist cases) authorising police officers to search premises and any person found on those premises.
[Source: Hossein Zahir, Birnberg Peirce & Partners, Matthew Ryder, Matrix Chambers, March 2003]
MI5 does not have rights of arrest. Their ‘street operatives’ are Special Branch officers who have extra legal powers to arrest and search. Each police constabulary (there are 52 in the UK each with its own executive head, the Chief Constable) has its own Special Branch who work separately from the police rank and file. Special Branch’s responsibilities include enforcing the Prevention of Terrorism Act and the Official Secrets Act, vetting and registering naturalization applications, and watching ports and airports.
What to do if detained
The police do have powers in many situations to stop and search you. The police may seek to interview you at a police station either as a witness or as a suspect in criminal proceedings. Sometimes, you may get the impression that you are going to the police station to help the police as a witness, but, when you arrive, you may start to be interviewed as a suspect.