Cage director Rabbani heads for Supreme Court after appeals court rules password demands lawful

Ruling sets ‘dangerous precedent’

Rabbani, speaking after the judgment, said the appeals court had set a dangerous precedent.

“It now means that privileged material carried by lawyers, human rights activists and others is not safe, and trying to protect such information can now result in a terrorism conviction. We will be appealing this at the Supreme Court,” he said.

Cage describes itself as “an independent advocacy organisation working to empower communities impacted by the War on Terror”. According to its website, its “work has focused on supporting survivors of abuse and mistreatment across the globe”.

“[The judgment] means privileged material carried by lawyers, human rights activists and others is not safe, and trying to protect such information can now result in a terrorism conviction. We will be appealing this at the Supreme Court”

Rabbani, from Bethnal Green in London, was questioned by officers from the Metropolitan Commands Port Unit at Heathrow Terminal 4 after returning from a wedding in Doha, Qatar, in November 2017.

He was arrested for wilful obstruction under Schedule 7 of the Terrorism Act 2000 after refusing to hand over the passwords to his iPhone and MacBook Air.

He told the court that his mobile phone and laptop computer contained notes and thousands of pages of documents relating to a client he had met in Qatar.

Last month, Cage released 35,000 documents detailing the case of Qatari businessman, Ali Saleh Kahlah al-Marri, supporting claims that he was tortured and abused by US officials during 13 years of incarceration in a detention centre in South Carolina. The group is now campaigning for the arrest of one of the alleged perpetrators.

“I knew at the time, when I refused my passwords, that I could be sent to prison. I remain convinced that preserving the principle of protecting torture survivors is the right thing, even if it carries penalties according to the law. What should concern judges and lawyers is that such a power as Schedule 7 exists in the first place – one that does not respect due process norms and can land an innocent person in prison for merely protecting privileged or confidential data,” Rabbani said after the verdict.

Schedule 7 ‘fundamentally flawed’

Lawyers for Rabbani argued in the Court of Appeal on 3 May 2018 that Schedule 7 was “fundamentally flawed”, and that the code of practice used by police and enforcement officers lacked proper procedures to protect people from disclosing legally privileged and other excluded information.

Henry Blaxland, representing Rabbani, argued in legal submissions that the absence of the appropriate safeguards, coupled with the failure of the police to follow the code of practice, meant the request for disclosure of passwords for the devices was unlawful.

The police knew “perfectly well that Muhammad Rabbani was not a person who was engaged in the commission, preparation or instigation of an act of terrorism”, he said in legal submissions.

Blaxland said there was no dispute that Rabbani’s electronic devices contained material held in confidence, under the relevant provisions of Schedule 7.

He argued that police stopped Rabbani for “a collateral purpose”, such as to gain access to documents in his possession, which amounted to harassment based on the nature of his work.

“The court should have been able to review the material, if necessary in private with the defendants interested being protected by special counsel, on the grounds that the interests of justice require it,” said Blaxland.

No mention of confidential information before arrest

Lord Justice Irwin dismissed claims by Rabbani’s lawyers that a legal protection to journalistic material, acknowledged by the appeals court in the case brought by David Miranda, husband of investigative journalist Glenn Grenwald, applied in Rabbani’s case.

The Miranda decision was “expressly and narrowly” centred on Article 10 of the European Convention on Human Rights and freedom of expression for journalism, Irwin said in the judgment.

“It is by no means self-evident that identical (or even similar) considerations arise in respect of other categories of excluded or special procedure information,” he wrote.

The judge found that Rabbani initially told officers he would not answer questions because he had a right to privacy under Article 8 of the Human Rights Act.

He did not mention a duty of confidentiality until after his arrest and questioning under caution, the judge found.

Rabbani was not merely silent about excluded or special procedure material – he had made the positive assertion that he was refusing to hand over his password and PINs to protect his own privacy, he said.

The judge also rejected arguments that the police search was unlawful on the grounds that the police refused to give a reason for stopping Rabbani at Heathrow.

“It could not be the intention of Parliament that intelligence should have to be communicated, even in summary form, before the powers of stop and search should be exercised. That was clearly not practical and would frustrate powers,” he said.

The judge agreed with the lawyer for the Crown Prosecution Service, Tom Little, that it would be impractical to appoint a special counsel to review potentially confidential material before it is accessed by the police, saying that was a matter for Parliament to decide in legislation.

Rabbani ‘should have brought a judicial review’

If Rabbani wanted to challenge the use of Schedule 7 powers, he should have brought a judicial review, rather than attempt to bring the case through the court of appeal, the judge ruled.

Rabbani had issued judicial review proceedings, but had withdrawn them. He could also have appealed to the Crown Court, which would have allowed him to give fuller evidence of the events.

In 2015/2016, some 28,000 people were subject to examinations under Schedule 7, according to a report by the then independent reviewer of terrorism, David Anderson QC, which led to 10,000 intelligence reports. Police downloaded information from 4,300 devices belonging to 1,677 people.

The nature of the intelligence priorities meant that those who define themselves as Asian were several times more likely to be questioned and detained under Schedule 7 than their presence in the population would warrant, Anderson’s report said.

The greatest value of Schedule 7 is in supplying intelligence about terrorist threats, disruption and deterrence, and recruiting informants, said Anderson.

The number of examinations under Schedule 7 are falling, having dropped from 19,355 at the end of December 2016 to 16,349 at the end of December 2017, a drop of 16%, according to a later government report.

Rabbani said he had been stopped between 20 and 30 times at airports by police and members of the Security Service.

“Schedule 7 powers are draconian and intrusive, violating the personal and professional privacy of every doctor, lawyer, human rights defender, banker, business owner, or psychiatrist stopped at UK borders without suspicion. There is nothing like it anywhere else in the western world. Data collected from phones and laptops is routinely shared with GCHQ and beyond,” he said after the hearing.

Rabbani was given a conditional discharge and ordered to pay £600 costs and a £20 victim surcharge at a hearing before senior district judge Emma Arbuthnot.

The government added safeguards to the code of practice governing how police should conduct searches, in the wake of the landmark legal ruling in 2016 over the arrest of David Miranda during a stopover in London in August 2013.

The safeguards were introduced through a code of practice, which invokes sections 10, 11 and 14 of the Police and Criminal Evidence Act (Pace) to protect privileged information, journalistic material or material held in confidence acquired in the course of any trade, business, profession or other occupation.