Misuses of the Terrorism Act

In August​ , the solicitor Fahad Ansari was travelling back to the UK after visiting his family in Ireland when he was detained on arrival by counterterrorism police under Schedule 7 of the Terrorism Act 2000. This law permits police to stop an individual at the border in order to investigate whether they have been involved in the preparation, instigation or commission of an act of terrorism. They do not need to have grounds for suspicion to exercise this power. What this means in practice is that the police are allowed to stop you for any reason, but don’t have to disclose it. They can question you for up to six hours. You have no right to silence. I have been in this situation on a number of occasions and the questions I have been asked have never concerned a terrorist plot, but rather my political opinions, religious beliefs and practices and details about my community. The police can also require you to unlock your phone, which will be taken away to be cloned before being returned either during the interview, or at a later date.

Thousands of people each year are detained and questioned under Schedule 7, the majority of them from ethnic minority backgrounds. To be held without charge and questioned under threat of criminal prosecution, almost certainly without a lawyer, is otherwise unheard of in British law. I could, to take an extreme example, kill someone in Oxford Street and retain the right to silence. Even were I caught standing over the body with a weapon, I could refuse to speak. At a port of entry or exit, this cornerstone of British justice no longer applies. Terrorism trumps it. If the officer asks me, ‘How many times a day do you pray?’ (I have been asked this) and I refuse to answer, my silence becomes a terrorist offence for which I could be prosecuted.

Ansari was named in the media earlier this year after politicians criticised him for representing Hamas in its legal bid to lift its proscription as a terrorist organisation. He was reported to the Solicitors Regulation Authority by the Conservative MP Robert Jenrick and the Campaign against Antisemitism, and is currently under investigation, despite the law making provision for such an application.

On his return from Ireland, he was asked about Hamas but claimed client confidentiality. After his release, Ansari brought a judicial review against North Wales Police and the home secretary to question his detention and prevent the police from accessing the data on his phone. On the first day of the review, the observers in the public gallery at the Royal Courts of Justice included many of his friends, colleagues and supporters. At one point, the judge and the barrister representing the police discussed the metrics for reasonable suspicion (which isn’t required under Schedule 7). The fifteen or so Muslim men and women looked knowingly at one another – we’ve all been stopped at some point in the past – but in a courtroom full of people we were the only ones who had had this experience. We know our religion makes us the primary target of this legislation and no pretence at ‘non-profiling’ will convince us otherwise. (The Home Office doesn’t release information about the religion of people stopped under Schedule 7, but a six-month study conducted by Cambridge University researchers found that 88 per cent were Muslim.)

The government’s initial position was that Ansari’s legal work had nothing to do with his detention. But in court its barrister said that the police were right to use their powers to ensure that his representation of Hamas did not cross over into active support for the organisation. The judge shut her down immediately. But it was an admission that a Muslim’s rights are secondary to perceived security concerns. The judge ordered the police to prove they had a national security reason to stop Ansari, but offered to let them do so through a closed material procedure, which would allow the government’s lawyers to present evidence before the judge without Ansari or his lawyers seeing it.

Some of the more egregious examples of misuse of the Terrorism Act have made their way into articles and books. Sally Lane, whose son Jack Letts, an alleged member of Islamic State, has been in prison in Syria since 2017, writes in her book Reasonable Cause to Suspect (2023) of being found guilty of a terrorist offence after trying to help him get out of Syria. Lane and her husband were charged with ‘funding terrorism’ for sending Jack £223 and sentenced to fifteen months’ imprisonment, suspended for twelve months. In May 2008, Rizwaan Sabir was arrested on the campus of Nottingham University because he had downloaded a copy of the al-Qaida training manual from a US government website while researching his MA. The police had profiled him because he was active in supporting Palestine. He was interrogated for six days under the Terrorism Act before being released without charge. Five years after his arrest, he writes in his memoir, The Suspect (2022), he suffered from paranoid delusions:

I started wondering whether I should just go and surrender to the police and MI5. I could then ask them why they were spying on me and what they wanted. Maybe if I let them interrogate me, I wondered, they will call off all surveillance and just leave me alone. Anything, I told myself, would be better than this open-air prison I felt I was now living in, where my body was free but my mind felt like it had been placed in a vice that was being tightened by the police and MI5 with every passing minute. Strangely, the thought of being in a physical jail with its thick metal doors and brick walls felt more appealing than this open-air prison that nobody was even willing to acknowledge existed.

Some people might argue that Sabir’s arrest shows the system worked. He wasn’t charged, after all. But a calculation is being made here which is rarely discussed: that Muslims in this country should be subject to special scrutiny – living in Sabir’s ‘open-air prison’ – to keep the whole of society safe.

I spoke to the Independent Reviewer of Terrorism Legislation, Jonathan Hall KC, about this when he visited the CAGE International office, where I work. CAGE was formed in 2003 to provide information on, and campaign for the rights of, people detained as part of the war on terror. I pointed out to Hall that the government has never commissioned a longitudinal study of the impact of terrorism policies on Muslims. No other community in the UK has the same experience when travelling in and out of the country, or the same fear that their children will be reported to Prevent. Hall said he would recommend ways to improve policies. What is needed however are not tweaks to an unjust system but a fundamental change in policy and policing.

In The Muslim, State and Mind: Psychology in Times of Islamophobia (2022), Tarek Younis writes that since Muslims are constructed as threats, their distress is pathologised as dangerous:

Muslims should not express anger in general [and] this is especially true if directed towards the state. Discontent and protest are precisely what counter-extremism strategies hope to capture … The only solution for ‘extremists’ is to engage in the never-ending performance of state solidarity, performing one’s allegiances continuously and without interruption, while managing one’s religious practices and convictions accordingly.

Muslims must perform the role of obedient citizens, never questioning the state or protesting its decisions and avoiding any contamination with the taint of terrorism, even if it arises in the course of their work or research. Those who don’t follow this unwritten rule exist in a liminal space, perhaps not criminalised, but certainly considered subversive. The cost to individuals and to the wider community is ignored.

Ansari’s is the first instance of Schedule 7 being used to target a lawyer’s confidential client material. But every time a Muslim passes through a British border, they risk the same suspension of liberties that he experienced. Collective security should not come at such a high cost to individual liberty. Ansari has refused to co-operate with the closed material procedure, believing it to be unfair and unaccountable. Meanwhile, the police still have his phone.