Examination of Witnesses (Questions 20-39)|
Thursday 8 July 2004
Q20 David Winnick: Mr Phillips, the criticism
that the CRE has made over the yearsif not so much now,
certainly in the pastover the counter-productive effect
and the antagonism caused to the black community by stop and search,
do you see a direct parallel now as regards the Muslim community
Mr Phillips: Not only is there
a parallel but a direct connection. First point, the real issue
here is, is this effective? I do not suppose the Muslim community,
any more than the black community, would oppose the use of these
powers if they were thought to be effective in dealing with the
actual threat: previously street crime now terrorism. The experience
we had in relation to street crime was that one in nine stops
led to any further action. When I say any further action, I mean
further search, taking back to the police station and so forth
never mind any further investigation and then arrest and then
conviction. The actual impact in terms of dealing with crime was
tiny, but the impact of this particular weapon on community relations
was huge. Second point, in relation to the anti-terrorism laws,
the figures we are all talking about come from the Home Office
95 report. Sadiq is quite right, there is a problem about the
fact that we record only 20 police forces, not the whole lot;
secondly, we record by race rather than religion in a situation
where half of all Asians are not Muslims and a third of Muslims
are not Asians. The connection of the two leads you into some
serious problems. In direct response to your other point, what
the Section 95 report shows is that the real target group who
are not actually Asians but are called white other are eight times
as likely to be stopped and searched as are whites, but Asians
who are notunless you think most terrorism resides in Pakistani
and Bangladeshi communitiesare five times as likely as
whites to be searched and oddly blacks like myself who I do not
think figure very much in the target group are equally likely
to be stopped and searched under Section 44 as are Asians. So
there is something very peculiar going on here, that the actual
target groupMiddle Eastern, white other and so onare
being searched eight times more, Asians are being searched five
times more than whites for reasons which are not entirely clear.
If it is because they look like people from the Middle East, why
are blacks also being searched at the same rate?
Q21 David Winnick: I would like to know
what your response would beI can just imagineif
you were stopped and searched yourself, Mr Phillips.
Mr Phillips: I would be extremely
Q22 David Winnick: Perhaps more than
some of us would be in such circumstances. Can I put to you, Mr
Sofi and Mr Khan, the points that the police and the Home Office
make that some 2,989 Asians were stopped last year. While this
figure is large increase on the previous year, is it really evidence
of indiscriminate policing because this works out at their statistics
at about eight stops a day. Most take place at Heathrow Airport
and the figure compares to a British Muslim population of 1.6
million. Basically they are asking what all the fuss is about,
eight stops a day, mainly at the airport, so why so many complaints?
Mr Khan: One of the criticisms
we have had about the port searches is that once again there is
no ethnicity recording for those searches. I am surprised you
are able to tell us that figure because we have asked questions
of the Home Office and that figure has not been ascertainable.
The fact that the starting point is even lower and it has now
gone to 3,000 should raise serious alarm bells as to why it is
there has been this increase. It is not simply a question of eight
a day; the question is, this is just the stops and searches under
this provision. You have to realise that when the police stop
you they can stop you under the PACE provisions of reasonable
suspicion or these provisions so it is a bit disingenuous to look
at the stops and searches under this provision in a vacuum because
the reality is that that 3,000 is just to do with those recorded
under this Section. We must remember two things, one is that once
the police stop you under this Section they may well decide the
justification was a PACE one and record it under that. Secondly,
one of the concerns of the community have raisedand this
is about confidence in the systemis that they are concerned
whether stops and searches are in fact being recorded.
Mr Sofi: Can I just add one thing?
I had the opportunity to go and see at Heathrow how they do the
stops and searches. What happens is the officers sit behind and
if anybody walks in they just ask some questions and then they
decide and they are left. That is not recorded really but they
are stopping and asking questions to a large number of people
who come in and that does not fit into any record, that is not
recorded anywhere. The purpose is to establish who they are and
where they come from. I had the opportunity to see how they do
it and precisely what they do I can describe only as profiling.
What we were explained is we look at it, ask questions, decide
to find out. That is the key; questioning is a lot linked with
good intelligence, they are just trying to see what they can find.
Mr Khan: Trevor has reminded me
that another reason why we cannot see the 3,000 stops and searches
in a vacuum and it is not us moaning for the sake of 3,000 stops
and searches, in fact there are 11 million stops and searches
under the PACE provisions, so you are distinguishing the feelings
of a British Muslim being stopped and searched under this provision
and as Khalid said there is stop which leads to recording of that
stop and search then there is stop short of stop where it is not
actually a formal stop in the sense of the legislation where people
are understandably unhappy about this. People frankly are not
going to complain. Frankly life is too short; people move on,
there are issues about access to lawyers and access to make any
complaints and all the rest of it. We have to realise that the
fact there have been so few complaints does not mean that we are
all super happy with the system; it may raise questions about
our confidence in the complaints system.
Q23 Chairman: If I could just pursue
that point briefly though. The press release you put out last
week when the Terrorism Act stop and search figures came out basically
said something like the young Muslim men are experiencing being
stopped every week. It is very difficult to square that claim
in your press release with a total number of searches per year
of 3,000 and eight a day. It sounds as though your real problem
in terms of young Asians and young Muslims being stopped is in
relation to the existing stop and search powers far more than
to anything that has been introduced by the Terrorism Act. Would
that be right?
Mr Khan: I think it is right to
say that it is difficult to distinguish the two. What is clear,
though, is that the snowballing effect of the impact of legislation
on Muslim communities leads the unhappiness I was talking about.
We have had examples of young Asian lads who are Muslim being
stopped and searched up to 20 occasions in a six month period.
Q24 Chairman: Is that under the terrorism
legislation where there is a total of only 3,000 a year or is
that under the existing stop and search legislation?
Mr Khan: It is under both. It
is a combination of both, that is the point. The port example
is a good example about those stopped short of a stop which are
not recorded, but the reality is that many people who are stopped
and searched you are right to say do not distinguish between they
have been stopped under the terrorism legislation or under the
PACE legislation and that is one of the problems about what happens
on the ground. There is this excellent code of practice to do
with PACE which applies to this with regard to what a police officer
is supposed to do on the ground. That is not the experience of
many people and I appreciate that this comes across as a generalisation
on my part but that is the real life experience of young Muslim
men in particular up and down the country.
Mr Phillips: If you look at the
Section 95 report, let us take just the 11 million PACE stops
and searches. If you are stopped and searched you are not making
a distinction between whether it is Section 44 or it is a PACE
stop. You are just being stopped and searched by the police. 9%
of those 11 milliona million of themare on Asians.
14%a million and a half of themare on blacks. By
my reckoning in the black community that means virtually one for
everybody in the black community. The truth isand this
is the experience of the black communitythough, as you
put it, it might only be eight a day, it is cumulative and you
get very quickly to a point where every family has been stopped
and searched a couple of times. So everybody in the community
has this experience really very close to them and that is why
it is seriously damaging to community relations.
Q25 Mr Prosser: I would like to ask some
questions about the powers of arrest and powers of detention to
Mr Phillips and to Mr Khan. Are your objections to this section
with regards to the principles of it or with regard to the manner
in which it has been enforced and used? The powers to arrest and
detain under the Terrorism Act, Section 41.
Mr Khan: The arrests only happen
if there is reasonable suspicion. Section 41-1 states, "A
constable may arrest without a warrant a person whom he reasonably
suspects to be a terrorist". The advantage of that is that
there is some analysis of the basis on which somebody is arrested.
I think many of us would not question with as much apprehension
that Section because there is a way of testing that because obviously
if one is arrested one is sometimes charged and sometimes released
without charge. I think there are no concerns about the power.
The concern is this, if you are arrested under terrorism legislation
you can be detained for much longer than if you were arrested
under ordinary criminal law. These powers mean that we have often
had examples of our young Muslim men who are arrested, kept for
seven days, released two or three hours before the seven days
expires without charge. There is a huge hoo-ha when they are arrested,
the local press are there, TV cameras outside their homes, communities
up in arms, huge publicity. But there is no hoo-ha when they are
released without a charge after seven days. The concern is this,
are the powers of arrest under the terrorism legislation being
used for the police to exercise greater power than they otherwise
would do? Sometimesand let us be honest about thissome
people are subsequently charged with matters not to do with terrorism.
Q26 Mr Prosser: Is that a problem?
Mr Khan: It is a problem if this
is a fishing expedition, a tool used disproportionately against
certain groups when there is no evidence it is serving the purpose
it is designed for. The intention of Parliament when it passed
this Section was to fight terrorism. It is easy to say that it
must be working if there are no terrorist attacks in London. Well,
there could be a variety of reasons why we have had no terrorist
attacks in London. I do not see the proof that links this Section
with that conclusion.
Mr Phillips: I pretty much endorse
that. I think the basic point here is, do we need to go to Section
44 of the Terrorism Act to investigate what somebody may or may
not have done? Would the normal procedures be enough because with
Section 44 goes all the paraphernaliayou cannot see a lawyer
without a police officer present and all that kind of thingand
that places that individual in a different position to somebody,
you know, nobody is particular enamoured of the normal rules but
these are even more stigmatising. If I could just return briefly
to the point we were discussing a moment ago about the scale of
this, I think it is very important for people to grasp that within
minority communities this disproportion creates a completely different
cultural position. If we look at the white community overall there
is a large number of stops and searches but because that community
is so big it happens to a relatively small proportion of, let
us call it, the majority community. However, when you look at
the number to which it is happening among the minority communities
it means that virtually everybody is getting this treatment. That
means that the impact is completely different and that is what
happens when people talk to the black community about criminalising
young people, what we were talking about there was a situation
in which the experience of being stopped and searched for young
black people becomesI do not know what the equivalent would
be amongst white people and I do not want to trivialise it, but
like going to a concert or going to the pub or whatever it isa
thing that everybody shares. Everybody has had it in the black
or now increasingly the Asian community. That means that the feeling
about it is completely different for the minority communities
than it would be for the white communities.
Q27 Mr Prosser: I think that point is
well taken by the members of the Committee. With regard to the
powers to detain for longer periodsto detain for 14 days
under the Terrorism Actthe Government argue that that was
necessary because of the complexities of the investigations and
the difficulties in getting evidence. Would you agree with that
or would you speak against that?
Mr Phillips: No, not in principle,
but I think the question isand this is one of the problems
we have about the lack of datais it always necessary? Do
we have to rely on the police's judgment of each individual case
on this issue? Should there not be at the very least enough data
to show us what the trends are here. It is very difficult to answer
the question about whether it is necessary or not if you do not
know what the picture is overall because then you are reduced
to arguing about: is this case justified or is it not? I do not
know because I do not have the intelligence, and so on. If I knew
something about the overall pattern then I might be able to say
that this looks so wildly disproportionate that there must be
something wrong here.
Mr Khan: My short answer is that
no, it is not justified. It would be nice if we had some statistics,
for example. What should happen is that the police should charge
as soon as they have enough evidence to charge and there is no
problem with charging somebody sooner rather than later. My concern
is, how many people are released without charge after seven days?
How many people are released without charge after 13 days? That
is the concern of the community. You are arrested, you are kept
in detention for a number of days and then released without charge.
There is no problem with somebody being chargedand you
can be charged sooner rather than laterand the stop clock
stops then. If the police have enough evidence, that is when they
arrest and they often charge. What further investigations take
place during that 14 days could have taken place previously. The
usual answer is interviewing the detained person. That should
not take 14 days. There are other enquiries that could take place
earlier as well. What often happens in sophisticated casesnot
just terrorism casesis that the police carry on their investigations
after somebody has been charged, analysing software on computers,
analysing hardware on computers and all that kind of stuff . Another
real concern the community have is the length of time it takes
the police to return property. The number of people who have had
their homes searched, computers taken away, passports taken away,
property taken away and literally months or years later they still
have not had it returned even though the person has been released
without charge. This is a real source of grievance in the community.
That is why I am saying that you cannot look at Section 44 in
isolation with the best will in the world. I have given evidence
to the privy counsel who said the same thing. Anti-terrorism legislation
needs to be looked at holistically. The impact on the community
is not discrete; they do not distinguish Section 44 from Section
41, from property being seized, from warrants being obtained for
house arrests and that sort of thing. That is why I think it has
a snowball effect.
Q28 Mr Prosser: Given that we now have
in place these powers for longer detention14 dayswhat
safeguards would you want to see incorporated, for instance with
regard to protection during that period and with regards to preventing
a corruption of the system? Can you suggest any particular safeguards?
What should be in place, bearing in mind they will be held up
to 14 days?
Mr Khan: I am not convinced what
mischief the police are concerned about which justifies extending
the seven days to 14 days. That is my first point.
Q29 Mr Prosser: Except the complexity
issue, of course. The argument from the Government is that these
issues of terrorism and investigation are highly complex and take
longer to investigate.
Mr Khan: With the resources at
the disposal of the authorities and with the initial powers, I
query whether that is in fact justified. Until we have analysed
the figures with regard to those who are arrested after 14 days
and those who are released without charge, I do not see how anybody
can give an honest answer to the question whether it is justified.
Common sense safeguards: no justification why lawyers are not
given access straight away; no justification why there cannot
be independent reviews on an open basis rather than ex parte
sooner rather than later; no reason at all why there cannot be
better use of independent reviews in police stations. There is
a system where people review the conditions in the police station.
Very often there is a lack of confidence by those detained; they
do not want to speak to somebody who is a lay person coming in
to review their conditions so there could be more sensitivities
around involving people in whom those who are detained have confidence.
Greater use of translators who have the confidence of those detained;
another issue that we come across quite often is detainees who
do not have confidence in the translator because they wonder if
it is a government agent and all the rest of it. Greater reporting;
it is not the control of the police it depends on the media. There
is huge publicity when somebody is arrested under a raid and almost
none when that person is released without charge. There are questions
about that and whether there is a responsibility on the police
to do more in terms of publicity when somebody is released without
charge than they did when somebody is originally arrested.
Q30 Chairman: Just to pursue the point
about Section 41and any of the witnesses might want to
respond to thisSection 41 and the powers we have been talking
about were introduced on the basis of fighting terrorism. In response
to criticism of a recent anti-terrorist operation using Section
41, Hazel Blears (the Minister of State at the Home Office) wrote
to the Independent and I will quote what she wrote: "The
fact that the individuals arrested were not subsequently charged
under anti-terror legislation does not make the operation irrelevant.
Six of those released were subsequently re-arrested for other
matters and are currently on police bail pending the outcomes
of these investigations. One of the remaining men has been removed
under immigration legislation." What view should we take
of that argument from the Minister? Should it be the view, fair
enough, they were not terrorists but they had done other things
wrong so justice will be done if they are arrested and charged?
Or should the view be that Parliament wanted this legislation
used only for terrorism and it is a matter of concern that a minister
justifies the operation by non-terrorist follow-ups? Perhaps I
could ask each of the groups of witnesses to respond to that.
Sir John Quinton: I would say
that if somebody is arrested or is detained under Section 44 and
then it is discovered that he is a criminal and he has a gun on
him or he has drugs on him, it seems somewhat paradoxical to release
him rather than arrest him under another section. What I would
like to come to is to clarify the whole point of statistics here.
I can only speak for London but I have to say that in the most
recent statistics it is only about one stop in about 15 to 16
which is done under Section 44. The last figures that I have here
show that there were 10,300 . . .
Q31 Chairman: Sir John, I think you might
be able to amplify that before your session ends, but I would
like to keep strictly on this Section 41 point and whether or
not it is of a concern, if it is justified by the other crimes
which have been found out.
Sir John Quinton: I think I have
Q32 Chairman: Yes, you have. Mr Phillips?
Mr Phillips: It cannot be right,
can it? It cannot be right. It is not for me to speak for Parliament,
but as a citizen I understand Parliament passes anti-terrorism
legislation for very specific reasons and anti-terrorism legislation
is a pretty serious business which deprives citizens of particular
rights in a way that other legislation designed to tackle crime
does not. So justifying the deprivation of citizens' rights on
the grounds that stolen property was found on him because he turned
out to be a burglar rather than an Al-Qaeda operative does not
seem to me to reflect either the seriousness with which Parliament
took anti-terrorism legislation or the significance of that piece
of legislation. It also, by the way, says something about the
effectiveness of other legislation. If you need to use this legislation
in orderto use the current jargonto nail people
for relatively speaking minor malfeasances and felonies then there
must be something wrong with that legislation and that is what
needs to be looked at. I think justifying the use of this legislation
on the grounds that you found somebody had stolen a piece of property
from next door, I cannot see how that could be right.
Mr Khan: To endorse what Trevor
has said I would like to add just two things. Firstly, if you
have a swamping of the police and over-policing anywhere and a
fishing net is big enough you will always catch some sort of criminal
act going on. If, for example, the Government thought that paedophilia
was a problem and brought in an act that would allow them to designate
areas where they could authorise powers more than in other legislation
and they decided that Surrey or Southampton was covered by the
section and they arrested people using their concerns about paedophilia
and then found people who had evidence of stolen property or tax
evading or shop lifting, you could see how ludicrous it would
be because the purpose behind the legislation was paedophilia.
The same goes with this. You cannot use this as a fishing expedition
to try to catch people who are only doing low-level crime. It
is relative, I appreciate. We all accept that crime is crime but
I think the problem is that it leads to lazy policing. You have
police officers who are using the huge powers at their disposal
under the anti-terrorism legislation to have catch-all exercises
and stuff. We do not want lazy policing; we want intelligence
led policing that is targeted against would-be criminals.
Q33 Bob Russell: Clearly we are all agreed
that those who promote terrorism or speak on behalf of terrorists
are to be deplored. Indeed, no lesser person than the former home
secretary raised that very point at Prime Ministers Questions
yesterday. Just for the record, Chairman, I am going to point
out that not a single Conservative member of the Committee is
here today to discuss police powers under terrorism legislation.
I take the absence of members seriously. It is a serious issue
and members should be here to address a serious issue. If I could
put the point to the witnesses here, it has already been argued
that the British Muslim Community in particular feel they are
being targeted. That has come across loud and clear. What threshold
of suspicion do you think is appropriate before an arrest is made?
Mr Khan: The PACE legislation
talks about reasonable grounds. You need reasonable suspicion
to stop and search, reasonable grounds to arrest. I do not see
the problem with that applying to anti-terrorism provisions. Crime
Q34 Bob Russell: Do you think the police
should stick to that practice?
Sir John Quinton: Section 44as
I have quoted alreadysays that if it is considered expedient
for the prevention of acts of terrorism. I gave the example earlier
about a car parked in the middle of the night outside a sub-station
or something like that. It might just be a couple doing what they
ought to do in the back of the car; it might, on the other hand,
just possibly be there for spying out whether it is an area that
could be bombed in the future. Frankly I think you need the legislation
you have there of Section 44. I have to keep stressing that Section
44 is hardly being used as a fishing expedition when so few stops
and searches are actually covered by Section 44.
Q35 Chairman: What about Section 41,
Sir John, the arrest powers, just to follow up Mr Russell's point
which was also about Section 41 and whether the threshold for
police arrests is appropriate?
Sir John Quinton: I think it is
but then I would say that, would I not?
Q36 Bob Russell: Mr Khan, in response
to questions by Mr Prosser you mentioned how you felt that the
police were perhaps using one act in order to catch others. I
wonder if I could just press that a little further. Would you
accept that when the police carry out raids and make arrests they
are often responding to specific intelligence? I am sure you agree
that the potentially horrendous nature of terrorist attacks is
such that is it really realistic to expect them to ignore what
intelligence they have in the hope that stronger evidence may
emerge because that stronger evidence may come after the event
rather than before?
Mr Khan: In a recent meeting with
the Home Office I asked a number of questions. I asked: Can you
tell me the figures for how many warrants you obtained to search
premises and the success rates of those warrants? How many people
are arrested other than those for whom the warrants had been obtained,
family members who may have had other documentation? How do different
forces operate up and down the country and are some forces better
than others? For example, if we discover Liverpool constabulary
only had a total of three intelligence led operations a year but
they led to three arrests and three charges with, say, one conviction,
and then you could contrast that to say, Manchester who had 300
intelligence led operationsI beg your pardon, there is
the Manchester Chief Constable in the room; I will use a different
constabularyThames Valley, for example, undertook 300 intelligence
led operations a year which led to six arrests, zero charges and
therefore zero convictions, who is analysing to see which police
forces are using intelligence correctly and which are not? The
answer is nobody. That concerns us and there are serious questions
to be asked. We cannot honestly answer that question that you
have asked without having those sorts of figures and nobody is
looking at that holistically. That is the concern. The concern
is that you have a postcode lottery with regard to how the police
are using intelligence and that is why we question how good intelligence
Q37 Bob Russell: Mr Phillips?
Mr Phillips: I just wanted to
make a point about your question about the threshold. It is pretty
difficult for anybody who is not in policing to say anything about
a threshold that can be applied in an individual case. However,
where you have people from a particular group being stopped and
searched on such a scale when all they have in common is what
they look like or what their religion might be, you need to start
asking some questions. Back in the 1970's and 1980's in my community
we were familiar with an offence which we called "driving
while black". There is a danger here that all these people
have in common is that they are Asian or Muslim; "cruising
while Asian" or "driving under the influence of the
Koran" is what seems to be happening here.
Q38 Bob Russell: Is there not a case
here that the police are looking for needles in haystacks and
it is worth it if they find a few needles?
Mr Phillips: There are smart ways
of looking for a needle and there are not smart ways of looking
for a needle.
Q39 Mrs Dean: Going back to the issue
of searches, are you concerned about the way in which searches
are conducted? Are they regarded as degrading? Should they be
Mr Khan: The actual codes of practice
that accompany stop and search are actually quite good; there
are safeguards there. I think most people understand the use of
stop and search with regard to ordinary crime, forgetting for
a moment terrorist crime. I think the letter of the law is fine.
The experience that we have and from speaking to large numbers
of people is that it is simple things like discourtesy, aggressiveness,
rudeness, not explaining procedure, asking for Christian names
and emphasising "What is your Christian name?".
It is those sorts of issues which are of concern. I am not saying
that in stops and searches you have Muslims routinely being beaten
up by the police, but I think there are issues about sensitivity
and I have heard senior police officers saying that there are
issues about straightforward customer relations trainingthere
are issues thereand being sensitive around female members
of certain faiths and those sort of issues. I think there are
issues about sensitivities even where stops and searches are justified.
If, for exampleto use the Chair's examplethere was
serious intelligence that there was an issue around Canary Wharf
we all understand that we may be stopped and searched and there
may be proper intelligence and it is about how you exercise the
stop and search that is a concern as well.