It can be exercised without the need for any grounds of suspecting the person has any involvement in terrorism – or any other criminal activity. A passenger can be held for questioning for up to 6 hours and those detained must "give the examining officer any information in his possession which the officer requests". They have no right to remain silent or receive legal advice.
What makes this power different to most is that there is no requirement for any “reasonable suspicion” as is the case with most police powers when people are arrested. Or to put another way, it can be used without the need for any grounds. It is narrower in geographical terms than the old s44 (which allowed officers to arbitrarily stop and search anyone), as its affect is restricted to sea and airports.
The schedule allows for searches and retention of property without grounds and at its core is the notion that you must answer the questions that are put to you. There is no disclosure of the information to any representative, and while lawyers can be contacted, their role is limited. There are often good reasons why people should remain silent but often the perception is, “well, the only reason he/she is saying nothing is because they are guilty”. What about the vulnerable, suggestable adult who on the surface appears to engage but really just wishes to be compliant? The person with mental health issues? Or those who are still below the age of 18? There are some safeguards but none of these allow the person to say nothing.
The police, home office or immigration authorities cannot physically force someone to speak – so how does the legislation deal with this? By the bluntest tool possible. If you do not answer their questions you will be committing a criminal offence, for which you could go to jail! We have three strands of government: the legislature, the executive and the judiciary. Their powers and functions are separated as each acts as a check or balance against the other. In this instance, there is no check or balance against the use of this power. It is ripe for misuse and discrimination. The UK is not a country with a poor human rights record. In fact, it is often cited as a beacon to those where conflicts reign as the archetype to emulate and yet we have, in my view, a law that sweeps aside the safeguards that we hold dear. Those who argue for its retention say these powers are essential but the current police powers regarding search of property and interviewing are more than sufficient to deal with all situations.
We are in danger of sweeping up a lot of innocent people, who become disconnected from and upset at the state. The current statistics on the demographics of people interviewed, while quite old, tell us that 77% of those stopped were from BME groups.
Until there is a change in the law, people will continue to be stopped without justification and it is regrettably left to lawyers to try and ensure their rights are safeguarded. If you wish to talk about being stopped and interviewed and how we may be able to assist contact criminal defence specialist Rubin Italia of Duncan Lewis Solicitors on 07500013118 or at [email protected].
For any other criminal law enquiries please call our team of expert solicitors on 0333 772 0409.
