Select Committee on Home Affairs Minutes of Evidence

Examination of Witnesses (Questions 20-39)

Thursday 8 July 2004


  Q20 David Winnick: Mr Phillips, the criticism that the CRE has made over the years—if not so much now, certainly in the past—over 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 being targeted?

  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 not—unless you think most terrorism resides in Pakistani and Bangladeshi communities—are 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 group—Middle Eastern, white other and so on—are 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 be—I can just imagine—if you were stopped and searched yourself, Mr Phillips.

  Mr Phillips: I would be extremely courteous.

  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 raised—and this is about confidence in the system—is 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 million—a million of them—are on Asians. 14%—a million and a half of them—are on blacks. By my reckoning in the black community that means virtually one for everybody in the black community. The truth is—and this is the experience of the black community—though, 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? Sometimes—and let us be honest about this—some 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 paraphernalia—you cannot see a lawyer without a police officer present and all that kind of thing—and 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 becomes—I 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 is—a 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 periods—to detain for 14 days under the Terrorism Act—the 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 is—and this is one of the problems we have about the lack of data—is 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 charged—and you can be charged sooner rather than later—and 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 cases—not just terrorism cases—is 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 detention—14 days—what 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 41—and any of the witnesses might want to respond to this—Section 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 answered that.

  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 order—to use the current jargon—to 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 is crime.

  Q34 Bob Russell: Do you think the police should stick to that practice?

  Sir John Quinton: Section 44—as I have quoted already—says 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 operations—I beg your pardon, there is the Manchester Chief Constable in the room; I will use a different constabulary—Thames 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 is.

  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 done differently?

  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 training—there are issues there—and 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 example—to use the Chair's example—there 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.

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