Cage director convicted of obstructing airport counter-terrorism search
LONDON - The managing director of the British human rights organisation Cage refused to reveal the passwords for his electronic devices to police during an airport stop to protect the privacy of a client who claimed he had been tortured while in US custody, a court heard on Monday.
Muhammad Rabbani was convicted at Westminster Magistrates’ Court of wilfully obstructing police officers carrying out their duties under Schedule 7 of the Terrorism Act after being stopped for questioning at London's Heathrow Airport early in the morning on 20 November 2016 following a flight from Doha, Qatar.
Schedule 7 powers allow police officers to stop and question anyone passing through British airports to ascertain whether they are involved in terrorism and extend to asking those stopped for passwords or PIN codes to access electronic devices and to downloading material from them.
Rabbani was ordered to pay £620 in legal fees but his case was conditionally discharged, meaning that he will face no further penalty if he commits no further offences for 12 months.
The charge carried a maximum sentence of three months in prison.
Addressing journalists and supporters after the trial, Rabbani said the case had "highlighted the absurdity of the Schedule 7 law".
"I took the decision to not raise the details of an important torture case before my arrest, and ultimately I have been convicted of protecting the confidentiality of my client," he said.
"If privacy and confidentiality are crimes, then the law stands condemned.
"Cage and I are glad we brought this case, and the result indicates that our only option is to change the law. Schedule 7 actively discriminates, and this will hopefully be the start of a number of legal challenges as more people take courage to come forward."
Senior District Judge Emma Arbuthnot said that Rabbani was "of good character" but had taken a "calculated risk" not to divulge his passwords based on previous occasions when he had not been arrested in the same circumstances.
Rabbani initially told police officers questioning him that giving them access to his electronic devices would violate his right to privacy.
It was absolutely to do with the fact that I had instructions from this torture survivor to seek accountability
Mohammad Rabbani, Cage
But Rabbani told the court that he had also been carrying sensitive information relating to the legal case of a man who he said had been detained by the US for 13 years and who said he had been tortured in that period.
Rabbani said he had gone to Doha to attend the wedding of the man's son and that during the visit he had been given the information and instructed to initiate legal proceedings on his behalf.
Cage planned to launch legal cases in both the UK and the US, Rabbani said.
Asked to clarify why he had refused to reveal his PIN code and password, Rabbani said: “It was absolutely to do with the fact that I had instructions from this torture survivor to seek accountability.”
Police officers told Westminster Magistrates' Court that Rabbani had been stopped based on specific information, rather than as a result of a random Schedule 7 stop, and were aware that he worked for Cage, an advocacy organisation which campaigns to highlight civil liberties issues raised by counter-terrorism policies.
The court also heard that Rabbani had been formally interviewed under Schedule 7 counter-terrorism powers on seven occasions since 2008.
On previous occasions police had taken fingerprints and DNA samples and downloaded the contents of a phone, the court heard.
In interview Rabbani told police that he has been stopped on 20 to 30 occasions. He told the court that he had declined to share his PIN codes and passwords with police officers on at least two previous occasions and had not been arrested.
He said that he had also been approached by MI5 intelligence officers on "numerous occasions" while passing through British airports.
Asked his opinion of Schedule 7, Rabbani said: “I believe it is excessive but I have complied with it every single time.”
Rabbani also said that after consulting a lawyer he had offered to share the details required to access his devices providing their subsequent examination was carried out by an agreed independent assessor.
Henry Blaxland, defence counsel, argued that police had stopped Rabbani unlawfully by detaining him not for the purpose of ascertaining whether he was involved in terrorism but for a ”collateral purpose”, and raised questions about the “sweeping powers” which Schedule 7 gave the authorities.
He also argued that the material Rabbani was carrying should have been exempt from examination under Schedule 7 restrictions which prevent police from examining confidential material being carried by lawyers and journalists relating to sources and clients.
“The risk of the arbitrary use of this power is very, very great,” he said.
Blaxland described Rabbani as “a man of great integrity who had abided by the conditions [of Schedule 7] over many many stops” but had found himself in circumstances that were almost "Kafkaesque".
“He has tested this power and when it has been tested it has not resulted in being arrested and prosecuted,” he said.
But Tom Little, counsel for the Crown Prosecution Service, said that Rabbani had been legally detained and that authorities had used “proportionate powers”.
Asked by Little whether he had made a deliberate decision not to provide access codes for his laptop and phone, Rabbani said that he had.
Judge Arbuthnot said she accepted that Rabbani was "trying to protect confidential information on his devices and took a calculated risk".
But she said there was "no doubt" that Rabbani had obstructed the police by not giving them his password.
Dozens of Cage campaigners and supporters including former British Guantanamo Bay detainee Moazzam Begg filled the public gallery and gathered outside the court during the one-day trial, which Cage had used to highlight concerns about Schedule 7 powers.
Critics of Schedule 7 powers argue that they are disproportionate and discriminatory against ethnic minorities and Muslims.
More than 28,000 people were subjected to Schedule 7 examinations in 2015-16 resulting in about 10,000 intelligence reports being filed, according to a report by the Independent Reviewer of Terrorism Legislation.
About 500,000 are also estimated to have been subjected to pre-examination screening questions in the same period.
'Digital strip search'
In an interview with Middle East Eye in May, Rabbani described the experience of being asked to hand over PIN codes and passwords to electronic devices as akin to a "digital strip search".
“Passwords have become very personal intimate things. Although they are only a few letters they are actually like the key to the front door of your house,” he said.
“With a password you can enter into a person's life. Everything is digitised these days, sometimes going back years and years. So when that is violated and you are forced to surrender a password without reason or suspicion, that really feels like a digital strip search.”
Saghir Hussein, a lawyer linked to Cage, said that Schedule 7 powers belonged to a tradition of discriminatory "stop and search" laws targeting non-white minorities that had been gradually challenged in the UK since the 1970s.
"This is the first time you are seeing a Muslim, non-white person standing up to the state and saying I'm not going to let you stop and search me," Hussein told MEE. "You have to have respect for Rabbani for having the courage to put his liberty at stake for a cause."
Rizwaan Sabir, an academic specialising in counter-terrorism, told MEE that the case set a "very important precendent".
"The fact that he had a conditional discharge for a terrorism offence shows and demonstrates the level of weakness that the government actually has when it comes to dealing with issues to do with terrorism," Sabir said.
"We have left the domain of people being involved in bombings and shootings and that kind of stuff to more or less dealing with individuals to work out what they are thinking and who they are talking to, and how they may potentially hold the government to account."
The head of the Metropolitan Police's counter-terrorism unit welcomed Rabbani's conviction and said police had retained his phone and laptop and was "continuing its efforts to examine the contents".
"Today’s verdict is an important one. It’s crucial that police are able to use the legislation that exists to help keep the public safe,” said Commander Dean Haydon.