The arrest and charging of a French publisher as he arrived in London has raised serious questions about the use and abuse of power in the UK.
Ernest Moret was detained and questioned by police at St Pancras station under counter-terrorist powers, allegedly because of his involvement in the anti-government protests that have swept France in recent weeks. Moret was stopped under schedule 7 of the Terrorism Act 2000, one of the most controversial counter-terrorist powers in the UK.
What is schedule 7?
Schedule 7 gives police the power to examine and detain anybody at an airport or port (or in this case, an international train station) for up to six hours, even if they don’t have reasonable suspicion that they’ve done anything wrong.
In contrast, ordinary powers of arrest or stop and search do require that police have reasonable suspicion first before they exercise these powers.
If you are stopped under schedule 7, you must comply with an examination, which includes handing over documents and any other information requested. Failure to do so is a criminal offence, which is apparently why Moret was arrested – according to a statement released by his publisher, he refused to disclose the passcodes to his phone and computer.
While schedule 7 can be exercised without reasonable suspicion, the power must only be used for the specific purpose of assessing whether a person “is or has been concerned in the commission, preparation or instigation of acts of terrorism”. It would not be lawful to use it to stop someone for another type of crime, say, possessing drugs or trespassing.
Therefore, if, as it is alleged, Moret was stopped because the police said “they had the right to ask him about demonstrations in France” this raises the question of whether the power was exercised for the correct purpose – assessing whether he was a person concerned in the commission, preparation or instigation of acts of terrorism.
What is terrorism?
Ultimately, this all depends upon the meaning of “acts of terrorism” and the UK’s definition of terrorism contained in British law is very broad. Essentially, the UK defines terrorism as an act (or threat of action) that is designed to influence the government or an international organisation, or to intimidate the public or section of the public for the purpose of advancing a political, religious, racial or ideological cause.
Not all actions, however, are captured. The law defines acts as involving serious violence against a person, serious damage to property, endangering people’s lives, creating a serious risk to the health or safety of the public or designed to seriously interfere with or disrupt an electronic system.
On the face of it, this definition seems reasonable. We all imagine terrorist attacks as hurting or killing people. Perhaps we also imagine them seriously damaging property too. It would be perverse to say a bomb that killed people was a terrorist attack but the bomb that only damaged a building was not.
However, not all examples are so clear-cut. What must the level of damage to property be? The definition of terrorism is silent as to how this damage can occur. In other words, damage doesn’t have to be inflicted using bombs or firearms to amount to terrorism.
Would protesters spraying a building with fake blood be causing “serious damage to property”? What about cutting off the head of a statue in protest at the UK’s public institutions’ failure to grapple with its slave-trading legacy? Controversial, perhaps, but terrorism? What about disrupting a sporting event and causing damage to property in the process?
Most people would probably think that we know terrorism when we see it but trying to legally define terrorism is notoriously difficult. For this reason, the UK defines terrorism in broad strokes and then places immense trust in decision-makers such as the police to ensure that the definition is not applied in a perverse way.
This means that it is not the wording of laws that is preventing terrorist powers from being applied to the above examples of political protest. Rather, it is how they are being interpreted and applied.
Freedom of expression
This delegation to law enforcement and prosecutors on the ground is what makes the detention of the French publisher so worrying. Schedule 7 has a troublesome and controversial history in this regard.
In 2013 David Miranda, husband of journalist Glenn Greenwald, was detained at Heathrow airport carrying files related to information obtained by US whistleblower Edward Snowden. While the Court of Appeal did find that he had been lawfully detained, it also found that schedule 7 failed to adequately protect journalists’ right to freedom of expression under the European Convention on Human Rights.
Rather than amend the law on schedule 7 to rectify this, the UK took the much narrower approach and amended the officer code of practice that officers should follow when exercising the powers to provide additional safeguards for journalists. However, this seems not to have been sufficient to protect Moret from being detained and then arrested for non-compliance with schedule 7.
While certain elements of the protests in France have turned violent, protest is, nevertheless, fundamental to a democracy. French MPs are even participating.
So if the police are now interpreting the UK’s definition of terrorism to capture French citizens for protesting in France, this is deeply concerning. This definition is also not limited to actions that occur within the UK so a person engaging in such conduct abroad could still be subject to British counter-terorrist powers once they arrive in the UK.
This may make sense to us when considering people who have returned to the UK after travelling to Syria or Iraq to join Islamic State but are the French protests in a democratic country really the same? What about if similar protests against an anti-democratic or authoritarian regime turned violent? These too are potentially captured by a British definition of terrorism which makes no distinction between whether the government which the activity is directed against is democratic or not.
Overall, the UK has decided on a very broad definition of terrorism to suit the need to capture the lowest common denominator. Any attempt to amend this definition, or to replace it with different definitions for different powers and criminal offences would require substantial time and political effort and is unlikely to occur any time soon.
Until such a time as there is the political will to change the law, British transport hubs will remain a precarious place because of schedule 7 and the discretion it bestows on police officers.