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Detentions at ports: A law in transit

Schedule 7 has been thrown back into the spotlight. This blog post charts the history of the power and how the landscape has changed over the last four years.

The coalition government’s plans to reform schedule 7 have been published and can be read in Schedule 6 to the Anti-Social Behaviour, Crime and Police Bill. (A StopWatch briefing on these changes can be found here).

Schedule 7 is the UK’s widest-ranging stop and search power. It is used at ports and airports and allows police, immigration and border officers to detain people for up to 9 hours without requiring reasonable suspicion to believe that they are engaged in serious crime or acts of terrorism. The criteria for a schedule 7 stop is considerably lower compared to any other power and also entails the highest detention period; encounters under other powers usually last an average of 15-20 minutes. Under schedule 7, a person can be taken into a special room for ‘examination’ which involves detailed questioning and an extensive search of the person and their belongings as well as having data from their mobile phone and other electronic equipment being taken without their informed consent. Officers can also take people’s DNA and fingerprints regardless of the outcome of the encounter.

In the last four years, there has been a remarkable shift in discussions over the use of the power and its impact on people and communities. Four years ago, schedule 7 was unheard of outside of the people regularly stopped under the power- even amongst the policy makers under whose remit the power fell!

First, a number of research and reports have highlighted the negative impact that the use of the power was having on communities across the United Kingdom. This included a report by the Equality and Human Rights Commission which concluded that the power was having an extremely negative impact on communities across the UK; a review of the Metropolitan police service’s use of DNA which shed light on to concerns relating to the use of people’s biodata taken under the power; and, more recently, a number of academic articles which concluded that these experiences at ports were undermining people’s strong sense of British identity.

Second, in a major intervention in 2011, David Anderson QC, the independent reviewer of counter-terrorism powers, called for a public review of schedule 7 which resulted in the Home Office’s consultation on the power during the autumn of 2012. In addition to this, a growing number of MPs and Lords have asked questions about the use of the power. This raised the level of scrutiny felt by officers at ports and some of the data obtained revealed that, amongst other things, very few convictions have arisen from the hundreds of thousands of schedule 7 encounters each year.

Other data, later included in the annual statistical bulletin of counter-terrorism powers, has revealed that people from ethnic minority backgrounds are more likely to experience the most extreme aspects of the power compared to people from White backgrounds, including being detained for longer and having their DNA and fingerprint information taken. This is despite Anderson’s long-standing view stating that he was:

“... [not] able to identify from the police any case of a schedule 7 examination leading directly to arrest followed by conviction in which the initial stop was not prompted by intelligence of some kind.”

This shows the central role that an intelligence-led approach can play in increasing the effectiveness of stops at ports by reducing the number of unnecessary stops and making it more targeted towards known sources of crime – as opposed to ethnic profiling at ports. With that backdrop, senior ports officers have already tried to address this by rolling out a number of training programmes for their officers; this includes a more selective use of the power based upon behavioural profiling techniques of passengers. Unfortunately not much is known about how this is used in the UK. However, having been behind the scenes at ports three times in the last four years, I have seen first hand how better training has transformed the use of the power from an excessively aggressive tool to one in which officers demonstrate greater care over how people are treated during an examination or detention. But, without any information in the public domain relating to how successful behavioural profiling techniques are, it remains to be seen whether those sorts of approaches have increased the effectiveness of the power or not.

Finally, for a number of years, civic groups like StopWatch have been consistently raising the need to ensure that the power is used proportionately to the threat faced and led by intelligence. A steady number of articles have been published by major British newspapers providing a human face to the impact of those powers and national bodies like the Independent Police Complaints Commission (IPCC) have stepped in to supervise all complaints made in relation to schedule 7 to provide greater scrutiny of how police forces manage those processes. People who have been detained under the power have also taken a lead in challenging its use, including through a recent launch of a Schedule7Stories website dedicated to collecting accounts of those experiences at ports.

The combination of research, external and independent scrutiny as well as campaigning by civic groups have forced the debate on the utility of schedule 7 out into the open. It is now widely known within police forces that the use of this power is under a type of scrutiny which was unheard of – even unexpected – four years ago.

Some of the legislative changes currently being debated in Parliament will go some way to addressing some of the concerns but they are likely to increase others. For example, the proposal where officers must decide to release a person or to detain them after the first hour (after which a senior officer regularly reviews whether detention is necessary) is a welcomed one. However, the six hour maximum detention period proposed remains considerably longer compared to any other power in the UK. Additionally, giving port officers the ability to take people’s electronic data- including information on mobile phones, laptops and other equipment- without their informed consent and to carry on taking the biodata of law-abiding citizens, despite its hugely contentious nature, are likely to carry on causing great concern amongst people and communities. Today’s headlines relating to the detention of a partner of a Guardian journalist who reported on the US intelligence systems also raises another question in the minds of many: what safeguards are in place to prevent ‘fishing’ expeditions of people not suspected of terrorism or serious crime?

The growing research and data provided by civic groups and in the official sources mentioned above provide a wealth of information on the use and impact of schedule 7 powers at ports. But, ultimately, it is for ordinary people and civic groups to lobby the government for the changes that they wish to see.

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