At the invitation of the Home Affairs Select Committee, the Independent Reviewer of Terrorism Legislation, David Anderson QC, set out recommendations to reform Schedule 7, which the Committee published on November 20, 2013.
“Based in part on confidential briefings and evidence from MI5, ” Mr. Anderson QC recommended that subject to a proposed amendment in the Bill for strip searches, examining officers should continue to have the power to stop, question and search people for the purpose of determining whether they appear to fall within the definition of terrorist in section 40(1)(b) of the Act, regardless of whether they have grounds for suspecting that a person falls within the Section. Mr. Anderson emphasized, however, that such powers should be used for the sole purpose of determining whether a person appears to be connected with terrorism acts and not “for any other purpose”.
The independent reviewer also made recommendations in regard to the legal threshold required for “detention” which the proposed legislation defines as occurring whenever an officer questions a person for more than one hour. Detention gives rise to rights to be informed and to consult a solicitor and to obligations to provide fingerprints or samples under specified circumstances. Mr. Anderson QC rejected the position that an examining officer be required to have “reasonable grounds for suspecting” that a person appears to be involved in terrorism, as defined in section 40(1)(b), on the ground that it would be difficult to arrive at reasonable grounds in the hour before a detention decision must be made. Instead, he recommended that a “senior officer” must be satisfied that there are “grounds for suspecting” that a person appears to fall within section 40(1)(b) and that detention is “necessary in order to assist in determining” whether the person in fact falls within the section. The reviewer further specified that for detention to be extended, a senior officer must be satisfied that the initial grounds that justified the detention remain. He also recommended that the intervals for review of detention be specified in Schedule 7, instead of being set forth in the Code of Practice.
In addition, the independent reviewer recommended that the copying and retention of data from mobile phones and other personal electronic devices be subject to the same legal threshold as detention. He further recommended that the government show how it will “ensure that private electronic data gathered under Schedule 7 is subject to proper safeguards governing its retention and use”.
In regard to the introduction of evidence gathered under Schedule 7 in subsequent criminal trials, the Independent Reviewer recommended that “the Government indicate how adequate safeguards are to be provide in regard to legally privileged material, excluded material and special procedure.” He stated that he might comment further on the issue after the Miranda judgment. Citing the comment of the Administrative Court (Gross LJ, Swift and Foskett JJ) in Beghal v DPP, Mr. Anderson QC joined in recommending a “statutory bar … to the introduction of Schedule 7 admissions in a subsequent criminal trial.”