In accordance with section 1(1) (b) of the Act our response is
provided below;
Some background information:
The statutory
Code of Practice for Examining Officers provides guidance on
the application and interpretation of these powers.
The revised Code that came into effect on 2nd July 2009,
explains that examining officers must use the powers
proportionately and in such a way as to minimise causing
embarrassment or offence to the individual being questioned or
examined. The Code also states that the powers to stop and question
a person should not be exercised in a way that unfairly
discriminates against a person on the grounds of age, race, colour,
religion, creed, gender or sexual orientation. Also provided is a
link to the
NCP&P document entitled ‘Practice advice on Schedule 7 of the
Terrorism Act 2000’ which provides greater detail on the use of
this legislation.
Question (a) ‘Yes’ The Cheshire Constabulary does
record ‘stops’ under this power because forces are required to
record Schedule 7 stops in certain circumstances. However the
correct terminology is ‘examination’ not ‘stop’. They are Schedule
7 examinations which are described in the above links to the Codes
of Practice and the NPIA documents.
Question (b) Yes.
In respect question (c) & (d) We have now considered your
request and we are not obliged to provide the information.
Section 17 of the Freedom of Information Act 2000 requires the
Cheshire Constabulary, when refusing to provide such information
(because the information is exempt) to provide you with a notice
which a) states that fact, b) specifies the exemption in question
and c) states (if that would not otherwise be apparent) why the
exemption applies.
Questions c) and d) are exempt by virtue of the following
sections:
Section 24(1) (National Security)
Section 31(1) a) b) c) (Law Enforcement)
Section 38(1) a) b) (Health & Safety)
Sections 24, 31 and 38 are qualified prejudiced-based exemptions
and there is a requirement to articulate the harm that would be
caused in disclosing this information as well as carrying out a
public interest test, both of which are outlined below.
Evidence of overall harm
The threat from terrorism cannot be ignored. It is generally
recognised that the international security landscape is
increasingly complex and unpredictable. Since 2006, the UK
Government have published the threat level, based upon current
intelligence and that threat has remained at the second highest
level, ‘severe’, except for two short periods during August 2006
and June and July 2007, when it was raised to the highest threat,
'critical', and in July 2009, when it was reduced to ‘substantial’.
Nevertheless, the UK continues to face a sustained threat from
violent extremists.
The disclosure of the requested information (questions (c) and
(d)) would undermine the use of Schedule 7 and this would
consequently be detrimental to our ability to be able to deal with
the on-going terrorist threat we face. By providing the number of
examinations and ethnicity of those examined, or the numbers of
biometric data recorded at force level, would allow comparison of
Schedule 7 activity at different ports and enable terrorists to
build a picture of what resources are in place and where they are
deployed. It is felt that the disclosure of this information would
prejudice the effectiveness of the national counter terrorism
effort and would allow inferences to be drawn about our force level
CT activity.
Information relating to specific regions, forces or, at the most
damaging level, information relating to specific ports, would
enable terrorists to make judgments concerning their preferred
travel routes and target ports where they perceive there to be a
greater vulnerability, lower staff levels and lesser probability of
being stopped. The release of figures that are too detailed is
likely to frustrate Special Branch activity in response to changing
terrorist travel patterns. Ultimately, this constant disruption
would reduce the effectiveness and efficiency of Special Branch
port units, increase the advantage to the terrorist and increase
the risk and vulnerability to the security of the UK from terrorist
attack.
Factors favouring disclosure for S24
The information simply relates to national security and
disclosure would not actually harm it. The public are entitled to
know how public funds are spent and by disclosing this information
the public would be able to see where public money is being spent
and know that forces are doing as much as they can to combat
terrorism.
Factors The factors favouring non-disclosure for S24
By disclosing this information would render Security measures
less effective. This would lead to the compromise of ongoing or
future operations to protect the security or infrastructure of the
UK. The risk of harm to the public would be increased if the
location of vulnerable areas of the UK were made public as this
would provide opportunity for terrorist planning. Ongoing or future
operations to protect the security or infrastructure of the UK
would be compromised as terrorists could map across the country the
level of counter-terrorist activity, giving them the knowledge of
force’s individual capabilities.
The factors favouring disclosure for S31
By disclosing the information the public would see where public
funds are being spent and would be able to take steps to protect
themselves and their families. Better public awareness may reduce
crime or lead to more information from the public as they would be
more observant in reporting suspicious activity.
Factors favouring non-disclosure for S31
By disclosing the information law enforcement tactics would be
compromised which would hinder the prevention and detection of
terrorist crime. More crime would be committed because the
terrorists would know which forces had less CT capability and
capacity and individuals would therefore be placed at higher risk.
A fear of crime would be realised because if the terrorists
identified ‘softer’ border entry points, they would target and
exploit these areas and the public would be in fear of more
terrorist activity occurring. There would be an impact on police
resources because if the number of Schedule 7 stops was disclosed
per force, the more vulnerable forces may need to increase their
resources to reassure and protect the community.
Factors favouring disclosure for S38
The public are entitled to know what areas of criminal activity
the police service allocate public funds to therefore by disclosing
this information, would lead to better informed public awareness
and debate. Disclosure of the information would assist communities
to be more aware of the level of protection afforded to them.
Factors favouring non-disclosure for S38
By disclosing the information the risks to individuals would be
significant and there would be a loss of confidence in the police
service to protect the well-being of the community.
Balance test
The security of the country is of paramount importance and the
Police service will not divulge information if to do so would place
the safety of an individual at risk or undermine National Security.
Whilst there is a public interest in the transparency of policing
operations and in this case providing assurance that the police
service is appropriately and effectively engaging with the threat
posed by a terrorist attack, there is a very strong public interest
in safeguarding both national security and the integrity of police
investigations and operations in the highly sensitive area of
terrorism.
As much as there is public interest in knowing that policing
activity is appropriate and balanced in matters of national
security this will only be overridden in exceptional circumstances.
Schedule 7 and other CT measures are high-profile sensitive issues
are of intelligence value to the terrorist and therefore it is our
opinion that for these issues the balancing test for disclosing the
information requested is not made and therefore in all the
circumstances of the case, the public interest in maintaining the
exemptions outweighs the public interest in disclosing the
information.