FECL 07 (July/August 1992):

"PORTS ARE OUR FIRST AND LAST LINES OF DEFENCE" - BRITISH POLICE SEES THE ABOLITION OF INTERNAL BORDER CONTROLS AS A THREAT TO SECURITY AND DREAMS OF A EUROPEAN PREVENTION OF TERRORISM ACT

In a memorandum submitted to the Home Affairs Committee of the House of Commons the British Police service expresses concern for "the pressure within the EC for the removal of internal frontier controls".
If a "credible external border" is to be achieved, it is vital that the special policing powers available under the British "Prevention of Terrorism Act (PTA) are introduced "along the whole of the EC border", says the police.
Here is a summary, based mainly on quotations from the memorandum.
It is followed by a synoptical comment of the PTA and its implications, by Bill Hebenton, lecturer at the Department of Social Policy and Social Work of the University of Manchester.

The Memorandum of the British Police Service

In a fairly dramatic introduction the worried policemen speak out, what is at a a stake: "The pressure within the EC for the removal of internal frontier controls (...) continue to be matters of real concern to the Police Service. Criminals, terrorists, and their supporters can be expected to do no other than exploit to the full any gaps or weaknesses in frontier arrangements - internal or external."

In the opinion of the police, the rapid pace of change in Eastern Europe has intensified the problems of illegal immigration into the EC from economic migrants, "many of whom live by crime".

An "acceptable level of control" must be sought in the whole of the EC, capable of deterring "would be terrorists, other criminals and illegal immigrants".

From the British Police Service's point of view, it "is vital that the powers available under the Prevention of Terrorism Act should remain and, if a credible external frontier is to be achieved, that equivalent powers be introduced along the whole of the EC border, accompanied by agreed arrangements and standards for, for example, the conduct of interviews and the examination of travel and other documents".

In order to assure effective external border controls the following "vital objectives" should be achieved: "Common entry conditions; the harmonisation of all relevant laws and procedures; common jurisdiction rights; and a common sentencing policy".

As a concrete measure for contributing to strong external borders of the EC, the Police Service calls on the British government to "pass legislation to extend the provisions of the Prevention of Terrorism Act to transit passengers: in that way controls on transit passengers will be no less than those on passengers whose destination is the UK".

And the police warns that the abolition of the special police powers under the PTA "would be detrimental to the efficiency of the operations of officers at the UK ports and could affect public confidence". In case of the abolition of the PTA powers the police would have to "rely on the provisions of the Police and Criminal Evidence Act 1984, which provides a power to stop and search - but the "reasonable grounds" requirements of that legislation would to a very large extent reduce our ability to prevent the free movement of passengers and the undoubted consequential increase in the commission of terrorist and other serious offences".

After warning once more of the negative consequences of an abolition of controls at the internal frontiers the Police service presents a list of drastic proposals for compensating the loss of internal security which they say would result from an abolition. Among the initiatives proposed are:(

• An amendment of section 14 of the PTA to overcome the present requirement for police officers to have "reasonable grounds" to suspect the commission of an offence [Section 14 of the PTA empowers police to arrest without warrant a person whom they have reasonable grounds for suspecting to be guilty of some terrorism related offence; a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism; a person subject to an exclusion order].
• The requirement on shipping and airline companies to vet and check the identification of passengers.
• The introduction of a "Euro-warrant", which would enable a fugitive from abroad to be brought to justice in the UK without the necessity of involving often complicated extradition procedures.
• The introduction of mandatory identification cards in a common format throughout the EC [The British "Association of Chief Police Officers" (ACPO) has formulated more specified demands for such an ID-card. It should be the size of a normal credit card, with a computer-readable strip. It should further include, among other things, the individual's fingerprint].
• the inclusion of provisions in the British immigration law to enable a police officer, whether at a port or anywhere in the UK, to demand showing of a passport from any member of the travelling public in order to ascertain if that person is involved in terrorism, wanted for a criminal offence or is of security or criminal interest.
• Substantial additional manpower to assist in maintaining the former level of effectiveness should the role of the Immigration Service be reduced or removed.

The Police Service points out that Britain will hold the presidency and membership of the "Troika" of TREVI in the next 18 months and should use its influence during that period for, among other things, "the promotion of DNA profiling techniques with the object of achieving a common standard for evidential purposes" as well as "the gathering and handling of information on terrorism".

Reference is made to an initiative by the ACPO for a "Police Programme for Europe", wherein policing topics can be discussed by police practitioners.

With reference to the the heavy process of European judicial harmonization the importance of closer police cooperation on a "practical" level is stressed: "We believe that much can be achieved within the existing framework of legislation, and therefore without delay, by the encouragement of a closer liaison at practitioner level".

Under the heading "Illegal immigration" the Police service asks some good questions: "The major issue...is one of jurisdiction. If intra-Community agreement is reached on enforcement of external frontier controls and on EC wide visas for third country nationals, how will police and immigration officers deal with those in breach of those agreed controls? What immediately springs to mind are such questions as: where is the offence committed? Which authority is competent to prosecute the case? Under whose judicial competence may the person be tried? How is evidence to support the prosecution case to be obtained from other EC Member States? The jurisdiction issues alone are extremely complex."

In addition, says the Police service, greater police involvement would be required for inland operations to counter the flow of illegal immigration, and to search for EC overstayers. "If there is a requirement for individuals to carry some acceptable proof of identity it would clearly assist the police - though increasing police powers to check for illegal immigrants could lead to discriminatory practices, and a change of public perception of the police role."

Under the rubric "The Schengen Agreement" reference is made to the "hot pursuit" provisions [enabling police of one Member State to continue the hunt of suspected criminals on the territory of neighbouring Member States]: "A classic lesson on 'hot pursuit' could be drawn from the Irish border. The more internal frontier controls are relaxed, the more the requirement for agreed cross border "hot pursuit" becomes necessary in criminal and terrorist cases."

To end with, the Police Service once more stresses the need to maintain the provisions of the Prevention of Terrorism Act and particularly the provisions of Schedule 5, even in the case of the setting up of a a free travel area within the EC, "in the best interests of the security and the safety of the nation."

[Schedule 5.2 of the POTA regulates examinations on arrival or departure. It enables the examination of of any person who has arrived or is seeking to leave Great Britain or Northern Ireland for the purpose of determining

• whether the person appears to be or to have been concerned in the commission, preparation or instigation of acts of terrorism;

• whether the person is subject to an exclusion order or wether there are grounds to suspect that the person has committed an other offence under the PTA.]

The memorandum ends with a dramatically formulated credo appealing to British sentiments of insularity: "Terrorism is still the principal threat to the UK and taken together with the potential threat from drug abuse and other serious crime issues, underlines the need for us to maintain vigilance at our ports. Ports are our first and last line of defence. Experience(...) indicates that we relax port controls at our cost."

N.B.

The Prevention of Terrorism Act

The Prevention of Terrorism Act was originally introduced in 1974 to: proscribe support for the I.R.A. (Irish Republican Army); enable the police to detain suspected terrorists without an arrest warrant for up to a week; exclude from Great Britain or Northern Ireland those thought to be involved in terrorism; and question travellers entering and leaving Great Britain. In 1984 the powers of arrest and detention were extended to cover those connected with international terrorism. The provisions of the PTA are renewed each year by parliament.

The PTA gives powers to the police to:

• detain without warrant;
• detain for up to 48 hours without application to a court or the Home Secretary;
• examine persons arriving or leaving Great Britain or Northern Ireland to determine whether they have any connection with Irish or international terrorism;
• stop and search without warrant;
• strip search, fingerprint and otherwise record a person detained;
• require the person to give information about others suspected of connection with terrorism.

During the first 48 hours the person will have no right to inform others of his whereabouts, consult a lawyer or talk to friends/relatives. After 48 hours the person's only right in detention is to take legal advice - this advice will not necessarily be given in private, if the police feel it necessary to be present. The person can be detained by the police for up to 7 days, thereafter he must be either brought to court or released.

The PTA has been found to be in violation of the European Convention on Human Rights. In November 1988 the European Court held in the case of Brogan and others that it was a breach of Article 5(3) because none of the four defendants had been brought "promptly" before a court.

Some academics who have looked at the statistics on the operation of the PTA argue that the police are increasingly using it to police ordinary crime, because of the very strong powers it gives. In other words there is a process of "normalisation" of emergency legislation taking place. It has also been pointed out that the British government may be arguing that the PTA be used as a basis for a some form of "European Internal Security Act [a project stressed, as we have seen, by the Police Service].

The allegation of the Police Service, according to which the special powers under the PTA have proven to be very helpful in combating terrorism and crime is questioned by a number of academics. Alan Butt Philip in his work - e.g. Dismantling Border Controls (Chatham House Papers, May 1991) argues strongly that in the case of Great Britain there is no good evidence to support the need for "internal" port controls.

Bill Hebenton