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Know your rights

 

KNOW YOUR RIGHTS

Terrorism Act 2000: Know Your Rights
Hossein Zahir, Birnberg Peirce & Partners
Matthew Ryder, Matrix Chambers
March 2003
Know Your rights
Arani & Co. Solicitors 43a South Road,
Southall, Middlesex, UB1 1SW
Police Powers and You
Criminal Law Solicitors Association


Terrorism Act 2000: Know Your Rights

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 When TACT 2000 came into force, the infamous Prevention of Terrorism Act (temporary provisions) Act 1989 was repealed.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:

  1. Remain calm. Losing your temper or panicking will not help.
  2. You should always feel free to ask if you have to answer questions; if you have to consent to your property being searched; and if you are under arrest or are free to leave. This is because on some occasions the police may detain you in circumstances where they know are not entitled to do so but on the basis that you have never raised an objection. However, they may not reveal that to you, unless you ask. In some situations if you say calmly you would rather not answer questions, or rather not have your premises searched, the police may not be able to do so.
  3. If the authorities tell you that you have to answer questions or comply with their requests, you are almost always entitled to consult an experienced solicitor. Many people do not do so because they are worried that it will be expensive. They are wrong: you are entitled to a solicitor free of charge. Other people do not do so because they think that the situation is 'simple', or that consulting a solicitor will 'make things worse'. This is not the case and it is a common error. A solicitor is able to discuss matters calmly with the police, obtain relevant information, advise you as the best course of action to take and keep a note of all that is going on. On many occasions the presence of a solicitor may clear matters up quickly and ensure that the police behave appropriately. It is very important to remember that being detained under TACT 2000 can happen to anyone, but is also very serious. It would be foolish not to take advantage of free specialist advice when the consequences of making a mistake in such a situation could be very damaging.
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Terrorism – a definition

The new Act defines terrorism as (Section 1(1) & (2) TACT 2000):

‘the use or threat of action where the action –

  1. Involves serious violence against a person
  2. Involves serious damage to property
  3. Endangers a persons life (though not the life of the ‘terrorist’)
  4. Is designed seriously to interfere with or seriously disrupt an electronic system’

In addition the use or threats of the above actions are:

  1. Designed to influence the government or to intimidate the public or a section of the public, and
  2. Is made for the purpose of advancing a political, religious or ideological cause.

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

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.

These include:

  1. Membership of a prohibited organisation (Schedule 2 of TACT 2000 provides a list of prohibited or "proscribed" organisations)(S.11);
  2. Supporting a proscribed organisation (s.12);
  3. Raising funds or ‘money laundering’ funds for the purposes of terrorism (this is usually related to raising funds for a proscribed organisation but not exclusively) (s.15 – 18);
  4. Providing training in weapons (including firearms, explosives and chemical weapons) (s.54);
  5. Possessing articles for a terrorist purpose (this can relate to all sorts of items from documents to weapons) (S.57);
  6. Possessing or recording information of a kind likely to be useful to a terrorist (this could include maps etc.) (S.58);
  7. Provisions relating to supporting or funding ‘terrorism’ abroad (S.59 – 63).

TACT 2000 sets out the powers of police officers and courts in relation to people arrested/ detained under the Act.

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Power of Arrest

There are two key powers to arrest and/or detain a person under TACT 2000. These are:

a. Section 41:

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.

b. Schedule 7

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:

(a) give the examining officer any information in his 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 his identity;
(c) declare whether he has with him documents of a kind specified by the examining officer;
(d) give the examining officer on request any document which he has with him which is of a kind specified by the officer’ (Schedule 7 para. 5).

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.

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Detention

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.

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Searches

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]

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Know your rights

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

What to do if you are arrested and if you are detained in custody for any reason by the Police

•You are entitled to free legal advice at the police station
• You should state that you wish to speak to a solicitor. If your own solicitor is not available then request a duty solicitor
• Do not discuss your case without obtaining legal advice
• Do not believe the officers when they state that if you speak to them without a solicitor you will be released sooner
• If you have any injuries as a result of the arrest taking place, request for a doctor to attend to see you
• You can make a call to members of your family or relations or a friend to notify them that you have been arrested and are being detained at a police station

What to do if contacted by the MI5

  • There is no obligation on you to answer any of their questions
  • Do make sure that you obtain the MI5 officers names and telephone numbers
  • State to the MI5 officers that you intend to seek legal advice
  • State to the MI5 that your solicitors will be contacting them
  • Make a note of the time and place that the MI5 officers contacted you
  • If the MI5 officers say anything to you, make a note of this
  • There is no obligation for you to work as an MI5 agent
  • There is no obligation under law for you to answer any question the MI5 officers put to you
  • Do not discuss with MI5 officers with regard to your movements or any body else’s movements
  • Do not try to be clever by talking
  • Do not think that the MI5 officers are stupid
  • Seek legal advice on the matter
  • Let the solicitors talk on your behalf

What to do when contacted by Special Branch also known as Anti-Terrorist Branch

  • Do not be misled by officers who state that they need you to assist them
  • Do not talk to them regarding any matter
  • Take the officers’ names and telephone numbers
  • State to the officers that you need to seek legal advice
  • State to the officers that your solicitor will contact them
  • Do not discuss any matter with them, walk away once you have taken the officers names and numbers

Extract taken from a guide prepared by Arani & Co Solicitors and published by the Islamic Human Rights Commission, March 2002

Arani & Co. Solicitors 43a South Road, Southall, Middlesex, UB1 1SW Telephone: 020 8893 5000

http://www.ihrc.org.uk/file/02march18knowyourrights.pdf
Salaam is not responsible for the content of external internet sites

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Police Powers and You

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.

WHAT TO DO AT THE POLICE STATION

Interview under arrest

If you are arrested by a police officer, you should be informed of the reason for your arrest and cautioned - "you do not have to say anything, but it may harm your Defence if you do not mention when questioned something which you later rely on in Court. Anything you say may be given in evidence".

Right from this point, the police can make a note of anything you say for it to be put before the Court if you are subsequently charged with an offence. At this stage, you should:-

  1. not say anything to the police officers whatsoever;
  2. not sign the police officer's notebook;
  3. request that you be provided with free and independent legal advice.

If you do not know the name of a solicitor, you will always be able to get hold of a local Duty Solicitor who will represent you at the police station free of charge and who will be completely independent of the police.

It is crucial that you do not agree to go in to a police interview without a solicitor being present or without first having spoken to a solicitor. The reasons for this are:-

  1. the police may delay your interview and there will be nobody there pushing for your case to proceed quickly;
  2. you may get the impression that you will be released more quickly if you admit to things that you have not necessarily done. Without a solicitor, there is nobody there to ensure that your rights are protected whilst you are in custody.

Having a solicitor does not necessarily mean that you will be at the police station for longer. Often, having a solicitor at the police station means that your case is dealt with much more quickly, because the solicitor is able to push the matter forward on your behalf.

The right to silence

You may remember newspaper coverage of the so-called abolition of the right to silence. The police station interview is a crucial stage of any police investigation. The likelihood is that the decisions you make at the police station when being interviewed will affect the whole of your case. The caution ["you do not have to say anything, but it may harm your Defence if you do not mention when questioned something which you later rely on in Court. Anything you say may be given in evidence"] does not mean that you have to answer police questions. The police cannot intimidate you or use threats towards you to make you answer questions that they want to put. In many situations, it is still the right advice to say nothing to the police.

It is a rule of English Law that the Prosecution has to prove the case against you beyond reasonable doubt and that you are innocent until proven guilty. This principle is strengthened by the recent introduction on 2nd October 2000 of the Human Rights Act.

After interview at the police station

There are four different things that can happen following your interview at the police station:-

    (i) you could be charged with an offence. If the police think that there is enough evidence to charge you with a criminal offence, you are likely to be charged and either bailed to the Magistrates Court or held in custody to be produced before the Magistrates Court the following day (not Sunday). It is, again, important to have a solicitor present throughout, as they may be able to make representations to the police that you should be released on bail to go to Court rather than being held in custody;
    (ii) police bail pending further enquiries. Often, following an interview, the police will have to investigate a case further before deciding whether there is sufficient evidence to charge you with an offence. If this happens, you will be bailed to return to the police station at a later date;
    (iii) released without charge. If the police are satisfied that you have had no involvement in any criminal offence or that they cannot prove any criminal offence against you, you will be released without charge and that will be the end of the matter unless further information comes to light;
    (iv) reported for summons. If you have been arrested for an offence or attended as a volunteer at the police station and been interviewed, it may well be that, following the interview, the police will release you and start to make arrangements for a summons to be sent to your home address for you to go to the Magistrates Court. If you receive such a summons, you should contact a solicitor as soon as possible in order that you can be fully advised about the offences contained on the summons.

Source: Criminal Law Solicitors Association

http://www.clsa.co.uk/public/arrested.htm
Salaam is not responsible for the content of external internet sites


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