FOURTH SECTION

DECISION

Application no. 32968/11
Sabure MALIK
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 28 May 2013 as a Chamber composed of:

Ineta Ziemele, President,
David Thór Björgvinsson,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Vincent A. De Gaetano,
Paul Mahoney, judges,
and Françoise Elens-Passos, Section Registrar,

Having regard to the above application lodged on 18 May 2011,

Having regard to the request of the Government to deal with the admissibility of the case separately,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Sabure Malik, is a British national, who was born in 1979 and lives in Benfleet. He is represented before the Court by Ms C. Ferguson of Liberty, a lawyer practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Ms Y. Ahmed, Foreign and Commonwealth Office.

A. The circumstances of the case

2. The facts of the case, as submitted by the parties, may be summarised as follows.

3. On 9 November 2010 the applicant flew to Saudi Arabia on an organised package tour to undertake the Hajj. On his return on 23 November 2010, he flew on Gulf Air from Jeddah, via Bahrain, to London Heathrow airport. The applicant was tired due to the five-hour flight and the change of aircraft in Bahrain. He also had a chest and ear infection and was taking antibiotics. Because of his attendance on Hajj, he had let his beard grow and had his head shaven.

4. Having exited from the aeroplane, the applicant proceeded to immigration control at Terminal 4 and presented his United Kingdom passport to the immigration officer at the passport desk in the normal way. At approximately 2.50 p.m. the applicant was approached by two police officers, one of whom told the applicant that he had been flagged for having two passports and that this was illegal. The applicant explained that he had been advised to apply for a second passport by the United Kingdom Passport Agency, since visa stamps from a previous trip to Israel would otherwise have led to the Saudi authorities denying him a visa for Hajj. The officer accepted this explanation, but asked the applicant to step into a side room.

5. Once in the room, the applicant was told to place his mobile phone on the desk. He was then patted down to discover whether he had any additional means of communication. At approximately 3 p.m. he was served with two notices: a “TACT 1” entitled “Notice of Examination under Schedule 7 of the Terrorism Act 2000”, recorded as served at 15.00 and a “TACT 2” entitled “Notice of Detention”, recorded as served at 15.01. The latter specified that he had been detained “under paragraph 6 of Schedule 7 to the Terrorism Act 2000”, his duties under the Act, the risk of criminal penalty for non-compliance, and his right to inform someone of his detention or consult with a solicitor. The applicant requested that his mother be informed and was advised to arrange for a solicitor to assist him.

6. One of the police officers made it clear to the applicant that he was not known to the police and that there was no reason to detain him other than his possession of two passports. The applicant was subsequently asked a few questions, mostly pertaining to his identity. He confirmed his name, date of birth, address and other basic information requested. The only question which the applicant refused to answer was what religion he followed, which the applicant considered to be a ridiculous and insulting question given that he had just returned on a flight from Saudi Arabia filled with Hajj pilgrims. The applicant also refused to consent to providing DNA material and fingerprints, although he said he would not resist them being taken. He was told he would be taken to a police station where the officers would have the power to compel this.

7. The applicant was then marched through the terminal by the police officers, in plain view of all of his fellow Hajj group members. He felt humiliated by the group members seeing him treated like a common criminal. Placed in the back of a police van, the lack of food and sleep coupled with anxiety and the cold in the van led him to feel unwell. Upon arrival at Heathrow police station, the officer who opened the van referred to the applicant as “the prisoner” and had him booked into the station at 4.36 p.m.

8. The Custody Officer’s risk assessment and detention log recorded the applicant as in need of a doctor or other health care professional because of a chest and ear infection. Following the receipt of basic telephone advice from his solicitor, advising him to answer questions but not to answer any to do with his religion or beliefs, he was then obliged to give a mouth swab for DNA and his fingerprints on the authority of the relevant officer holding the rank of superintendent.

9. The applicant was taken to an interview room where his luggage was examined by the two officers from Heathrow airport. His mobile phone, credit cards, bank details, underwear, clothes and work pass were all exposed. His Qu’ran was hung upside down, shaken and flicked through, in a manner that he regarded as extremely disrespectful. Everything of interest, including pieces of paper, gifts from Saudi Arabia, bank cards, his work pass and phone containing personal text messages, was placed on the table. He was questioned briefly about some of these items.

10. A tape recorded interview began at 6.19 p.m. He was questioned about his trip, including what he did and where he stayed in Saudi Arabia, and he was again asked to explain why he had two passports. The applicant was also questioned in detail on matters including where else in the world he had travelled, whether he had voted in the last general election and why he had a commercial credit card, as well as such matters as his business accounts, his salary and his personal email address. The interview was concluded at 6.44 p.m. Questioning also took place before and after the recorded interview. The applicant protested during this time that the powers used were disproportionate.

11. At 7.20 p.m. the applicant was released. He was refused transport back to Terminal 4 and was left to find a bus. Copies were taken of all his paperwork and credit cards, and his sim cards and mobile phone were retained and only returned to him eight days later by a courier organised and paid for by the applicant, after the police refused to do so. Two local officers attended his house on 3 December 2010 in relation to this.

12. The entire incident left the applicant feeling humiliated and ruined his Hajj experience. All the friends he made during the experience ceased contact with him after seeing him detained at the airport. He had never been arrested or detained by the police before this.

13. On 24 November 2010 the applicant made a complaint about his detention to Lord Carlile of Berriew QC, the Independent Reviewer of the Terrorism Legislation. The Reviewer is required under section 36 of the Terrorism Act 2006 to review the workings of counter-terrorism legislation including the use of the powers under Schedule 7 (see below). The applicant’s complaint was passed on to a Detective Inspector engaged in counter-terrorism work, who investigated the matter. The Detective Inspector sent the applicant a report of his investigation’s findings on 7 January 2011, having reviewed documentation generated in the search and “spoken to or directly corresponded with the officers concerned” and considered “all the available facts”. The report confirmed that it was the understanding of the police that, having submitted to ordinary passport control, “an examination began under schedule 7 of the Terrorism Act at 2.50 pm” and that the applicant was “detained for examination at 3.01 at which time [he was] served with the Terrorism Act form 1 and 2 informing [him] of his rights and what actions were being taken (as required by the legislation)”. The Detective Inspector stressed that under schedule 7, the officer “does not require any reasonable grounds to stop a person and conduct any such examination” and concluded that, in stopping and questioning the applicant and in taking DNA samples and fingerprints, the officers had acted appropriately within the terms of the legislation.

14. The applicant has not brought any proceedings in the domestic courts to challenge the measures applied to him by the police following his arrival at Heathrow.

B. Relevant domestic law and practice

1. Schedule 7 to the Terrorism Act 2000

15. Paragraph 2 of Schedule 7 to the Terrorism Act 2000 (“Schedule 7”) empowers an examining officer to question a person arriving or leaving a port or border area, for the purpose of establishing whether he or she appears to be, or to have been, concerned in the commission, preparation or instigation of acts of terrorism, whether or not the examining officer has grounds for suspicion. The “examining officer” may be a police constable, an immigration officer or a designated customs officer.

In accordance with paragraph 6 of Schedule 7:

“(1) For the purposes of exercising a power under paragraph 2 or 3 an examining officer may -

(a) stop a person or vehicle;

(b) detain a person.

(2) For the purpose of detaining a person under this paragraph, an examining officer may authorise the person’s removal from a ship, aircraft or vehicle.

(3) Where a person is detained under this paragraph the provisions of Part I of Schedule 8 (treatment) shall apply.

(4) A person detained under this paragraph shall (unless detained under any other power) be released not later than the end of the period of nine hours beginning with the time when his examination begins.”

The officer may also search the individual and his possessions and belongings, by virtue of paragraph 8. A search of the person must be carried out by an officer of the same sex as the person searched. Any article given to or found by the examining officer may be retained for examination for up to seven days. Paragraph 10 permits the taking of fingerprints and non intimate samples without consent.

16. Paragraph 5 of Schedule 7 places obligations on the person being questioned, to (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; and (d) give the examining officer on request any document which he has with him and which is of a kind specified by the officer.

Paragraph 18 provides that a person commits a criminal offence if he or she wilfully fails to comply with a duty or contravenes a prohibition imposed under or by virtue of Schedule 7, or wilfully obstructs, or seeks to frustrate, a search or examination under or by virtue of the Schedule. The maximum penalty for commission of an offence under paragraph 18 is three months’ imprisonment and/or a fine.

2. The Code of Practice

17. A Code of Practice has been issued pursuant to paragraph 6(1) of Schedule 14 of the Terrorism Act 2000. The paragraph includes the proviso at subparagraph (2) that a failure to observe a provision of the Code “shall not of itself” make an examining officer liable to criminal or civil proceedings. The current version of the Code was issued on 2009. Paragraphs 9 and 10 deal with the examination powers under Schedule 7:

“9. The purpose of questioning and associated powers is to determine whether a person appears to be someone who is or has been concerned in the commission, preparation or instigation of acts of terrorism. The powers, which are additional to the powers of arrest under the Act, should not be used for any other purpose.

10. An examining officer may question a person whether or not he suspects that the person is or has been concerned in the commission, preparation or instigation of an act of terrorism and may stop that person for the purposes of determining whether this appears to be the case. Examining officers should therefore make every reasonable effort to exercise the power in such a way as to minimise causing embarrassment or offence to a person who is being questioned.

Notes for guidance on paragraphs 9 and 10

The powers to stop, question, detain and search persons under Schedule 7 do not require an examining officer to have any grounds for suspicion against any individual prior to the exercise of the powers. Therefore examining officers must take into account that many people selected for examination using Schedule 7 powers will be entirely innocent of any unlawful activity.

The powers must be used proportionately, reasonably, with respect and without unlawful discrimination. All persons being stopped and questioned by examining officers must be treated in a respectful and courteous manner.

Examining officers must take particular care to ensure that the selection of persons for examination is not solely based on their perceived ethnic background or religion. The powers must be exercised in a manner that does not unfairly discriminate against anyone on the grounds of age, race, colour, religion, creed, gender or sexual orientation. To do so would be unlawful. It is the case that it will not always be possible for an examining officer working at a port to know the ident