Ayesha Kazmi interviews David Mery

Written by Ayesha Kazmi Thursday, 23 June 2011
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Mery holding apology from Metropolitan Police Mery holding apology from Metropolitan Police
3 weeks after the 7th July bombings, David Mery found himself caught in bewildering circumstances. With the nation on high alert for potential terrorism related plots, David found himself unwittingly subject to suspicion of terrorism. On 28 July, 2005, David was stopped and searched under Section 44 of the Terrorism Act  by London Transport police and subsequently arrested on his way to meet his wife after work.
It took 4 years for the Metropolitan Police to issue an apology to David for the wrongful stop, search and arrest.
Ayesha Kazmi speaks to David Mery about his case.

Ayesha Kazmi: Why don’t you start off by telling me about your story. Can you tell me what happened to you the day you were stopped and searched?

David Mery: Sure. So on the 28th of July 2005, I tried to take the tube to meet my wife. That was after work so it was about 7:20 pm. When I was waiting for the tube on the platform, I was surrounded by police officers that decided to stop and search me under section 44 of the Terrorism Act 2000. The reasons, they claim, they wanted to stop and search me was that when I walked into the station I avoided them. By that they meant that I looked at the steps at the station and not directly at them. Two other men entered the station at the same time as me who were not stopped and searched. I was wearing a jacket that was “too warm for the season.” They said the same thing about Jean Charles de Menezes who was shot one week prior to my stop and search. The day before was a cold day for the month of July. The jacket was not warm any way, it was a rain jacket. They said I was wearing a bulky rucksack, with a laptop  inside. That I had looked at the people coming on the platform and that’s obviously very suspicious as well. Apparently, I checked my mobile phone in the middle of all people. All these were considered very suspicious activities by the officers who watched me entering the station from the city in the late hours. So that allowed them to stop and search me. So the officers watched me entering the station on the CCTV and then they decided to stop and search me. I was going to get on a tube when the officers surrounded me and told me that they were going to stop and search me under the Terrorism Act. Then they asked me if I had anything dangerous on me, to which I said “No.” Then they asked me to take off my rucksack, which I did. I think at the point as soon as I took off my rucksack, they handcuffed me and they moved my rucksack out of sight.  At that point my train had left and there was another train passing by and as it stopped the officers stopped people from getting off. And there was no more train passing by as the Jubilee line was closed.

AK: The Jubilee line was closed?

DM: Jubilee line was closed because of my stop and search. Not because of me as such but because of them, because of what the officers did. I was just trying to take the tube to meet my wife. That was not done very suspiciously either. So I was at the station at 7:20pm, the stop and search thing started at 7:30. After a while we moved to the back staircase of the station. I was handcuffed at the back. Eventually they moved the handcuffs to the front, which was a bit more comfortable. Eventually we moved towards the entrance of the station where we waited some more. Two officers from the bomb explosive team walked by. They kind of jokingly said, “nice laptop”. They checked my bag and they gave all clear, for them it was just a small matter. After that, one officer considered the situation normally enough because my handcuffs were taken off and some of the stuff from my pockets was given back to me. And I was told that we have to wait for a more senior officer to apologise for the stop and search. And then some other officer said that it was not the proper thing and he put the handcuffs back. And then they told me to wait in police van. The next thing is the door of the police van opened and I was under arrest. That was I think around 8:45 because they first stopped and searched me and that took more than an hour. It took them a long time to stop and search. In that month of July 2005 4,869 people fell under section 44 stop and search. And out of these they decided to make 65 non-terrorism arrests and 33 terrorism related arrests. My arrest was not under the Terrorism Act.

I later found out that the arresting officer wanted to arrest me under the Terrorism Act, but a senior officer he talked to suggested otherwise. They said they arrested me for public nuisance. So that was the reason I was arrested for. In the same month, there were only 9 section 43 stop and search arrests and there was 1 terrorism related arrest. The reason that they stopped and searched and arrested me was that they thought my behaviour was suspicious and they believed that I was a terror suspect and my rucksack had dangerous explosives.

The difference between section 44 and section 43 is that section 44 could be applied or used to stop and search anyone in a zone, which was authorised before by a senior officer. That was limited in geography or at least supposed to be limited geographically and in time. I found out later, the whole of London was under the zone authorised for stop and search under section 44. The authorisation is supposed to be limited in time as well, a maximum of 28 days. What I also found out later that it was rolling for 28 days for several years. In fact, I think it changed in 2009 where there is much emphasis on geographic zone and not on rolling for 28 days. Nobody knows what areas are authorised under section 44 because the police and the home office always refused to publish the authorisations. Section 43 stop and search is for an individual that the police officer has the reasonable suspicion of, that he might be a terrorist. Since they suspected me of terrorism they should have used section 43 and not section 44; but as the numbers clearly show they found it much more convenient to use section 44 instead of section 43 even when they had suspicion.

People were stopped and searched all over the place including London. The reason they claim that they do not want to release the authorisations is because people will tend to avoid them in those places.  It does not make much sense. When the geographical area’s extent was narrowed down, it was restricted to iconic sites like the transport hubs, train stations and airports as you might guess, Downing Street, Parliament Square and probably some public spaces in different cities. There has been many stops and searches along Parliament Square especially involving photographers.

AK: Chief Constable Ian Johnston said anti-terror efforts would not waste time on old white ladies. It appears profiling of various types may take place when attempting to find potential terrorists. Do you think that it is possible that the authorisation of section 44 of the Terrorism Act in particular geographic areas where there are higher concentrations of ethnic minorities, for instance?

DM: Ethnic minorities don’t stick to one neighbourhood and that is why they were targeted all over London. I am not aware in London of section 44 authorisations narrowed to target just a place or a neighbourhood where ethnic minorities were living. I think there might have been some targeting but I am not so sure. But it is clear that there was targeting but not in a specific area. Specific people, yes but not specific location. It is not linked to where they are. I have seen Ian Johnston’s statement. It is clear that in particular Muslims or in whichever way you want to describe them and photographers were the two categories of people more affected by stop and search than any other category.

AK: Like Pennie Quinton taking a video?

DM: Pennie was going to the demonstration for annual arms fair, this kind of event can be a reason for being stopped and searched as well. There is no reason for Pennie to have been stopped and searched, it is unfair. But even photographers taking photos of the buildings in the city were targeted.  The police have been defining taking pictures in a public space as hostile reconnaissance. So basically that is an action that they consider to be used to prepare an act of terrorism; where you recognise the face or take a picture visibly with your camera it is hostile reconnaissance.

AK: Can you tell me a little bit about your own “profile”? Do you perceive yourself as having a questionable look? And do you think that is that why when you walked into the tube station with two other gentlemen, you were considered suspicious and not them? Were you profiled?

DM: I don’t know. We don’t go to a tube station and tend to do think about these things. I did notice police officers at the entrance of the station but I did not pay attention to who else was getting in the station at the same time as me. Some people have said that I look Indian, and possibly other ethnicities. I am a French born and raised, white-European male. I had a beard at the time. So maybe with the beard and the rucksack I could possibly fit into a Muslim profile. But it can be a ‘techie’ profile. By that, I mean a jacket, rucksack with a laptop, beard you know all the different things that they found suspicious. My look or behaviour is typical of the ‘techies’ but then I mean any one could dress up that way. In fact, when I wrote up my story there was severe reaction from different techies and websites. Several techies recognised themselves in the description of my profile. I didn’t notice such self-recognition in that profile from Muslims.

AK: Were you involved in activism prior to your stop and search or was your activism inspired by what happened to you? 

DM: I had some interest in privacy previously before I was stopped and searched. But my activism in human rights has followed not so much my stop and search but my arrest. After I was arrested, I was brought to Walworth police station. Where I was processed, meaning my DNA and fingerprints were taken. Eventually after all the processing, I was allowed to call my wife. It was about 10’O clock in the night. She was very worried, and she had no idea where I was. We were supposed to meet up much early and it had been a long time since.

AK: Were you not allowed to contact your wife to tell her about your whereabouts?

DM: No, I was not allowed and I could hear my phone ringing and buzzing. She had been trying to call me ever since. After I was processed, only then I was allowed to call her. It was past 10’O clock and she was waiting for me since about 7:30 pm. So she was very worried, she did not know where I was. She was concerned if I had a car accident or something. So when the police eventually let me talk to my wife I managed to convince her to stay at home at that point and not to come to the police station. I had no idea when I would be able to get out of the station. So I was brought to a cell around midnight, a police officer told me that they were going to search my flat. I asked them if they could call my wife to tell her so that she would not get afraid. They said yes. They asked for her number and I told them that I don’t remember it, as it is in my phone. I told them that the custody officer has her number because I had called her earlier. They never called her.

So they visited our flat, it was past midnight and my wife had just got out of the shower not expecting any of that. They took lots of computers and electronic stuff; they had a look at my shelves and books. One thing they were particularly interested in was the photographs I took. I am not a photographer but I like to take some pictures. They checked my wife’s laptop but they did not take it. They took some other computers from the house. Then around 3am, I was interviewed. That was my first police interview ever. I refused to have a solicitor to assist me thinking that it would be all over in the next 5 minutes. The first piece of advice I now give to any one, is to get a solicitor. At the formal interview I was shown the stuff I had on me like my jacket and rucksack and other things that they had taken from my flat tied up in bags. They asked me different things such as my identification, where I worked, what I was doing, whether I was a terrorist; all of these things were easy to answer. But then there were some ambiguous questions like is there anything on my computer which could be used for terrorism. They also asked me why I had doodled a map of the tube station; these were just idle doodles, not a map or anything specific; one could see anything in them. Most things could be considered suspicious.

AK: Would you say that anyone could potentially have something in their possession or on their computers which could be interpreted as potentially used for terrorism?

DM: Exactly! If you see the Metropolitan Police terrorism campaign, every year in February or March they explain that someone who looks at CCTVs is suspicious, someone who has got cameras is suspicious, someone who has got a white van is suspicious; a white van, because the terrorists need to transport stuff. Someone with several mobile phones is suspicious.

As I was working for a mobile company I had a bucket full of mobile phones at home. They did not take the mobile phones for their investigation. But anything can be used for terrorism depending on how you look at it. The interview lasted for more than an hour and eventually the officer decided to release me on bail. I left the police station around 4:30am. Eventually I arrived home, a bit later than I had expected when entering the tube the previous day. And a month later I had to surrender to bail. At that point I was told that they had decided that no further action would be taken. But the officer in-charge was somewhere else so they could not give me back my stuff. That included my home laptop too so all this time I did not have my home laptop. I eventually bought another one because these days this is something you can’t function without. It took another month and a half to get all my stuff back. I never knew how long it would take. So there was no further action and I was innocent before and during and I was innocent after. But the police had a whole file on me, they had police computer records, they had my DNA sample and profile, my fingerprints, they had photographs. I did not think it was right. I was innocent before and innocent after so there was no need to suspect me. They should not have criminal file or data on me so I wondered how to basically be erased from all these databases.

After hearing Lord Carlile in BBC interview about some people have been arrested for no good reason, I think they were Muslims probably, saying the police should apologise, I contacted him and he suggested that I start a complaint procedure. So I consulted the IPCC (Independent Police Complaints Commission) and launched a complaint. It was decided for it to be an IPCC supervised enquiry. The IPCC do an enquiry themselves only when a death in custody is involved. But then they supervise only over a few cases, which is quite rare. So the enquiry was done by Metropolitan Police, Department of Professional Standards, and was supervised by the IPCC. I met the inspectors from the Department of Professional Standards to give my witness statements. I had prepared it in a written form and they were quite keen for me to shorten it. Also they were quite pushy in a way to suggest instead of having a full investigation have a local resolution, without any investigation. Eventually the IPCC sent me investigation report prepared by the Metropolitan Police, Department of Professional Standards. They had found that there were no lessons to be learnt. Three police officers should receive words of advice and one should receive a written warning. But the one receiving the written warning that was not so much because of my arrest but much more because he did not do what his superior asked him to do.

There were two things I was very keen on attaining: an apology from the police and my DNA and associated records to be erased from the databases. Destruction of the records and an apology were essential for me and the fact that they found the police non-responsible was not good. So I appealed the outcome to the IPCC but the IPCC has a very narrow remit. They did not uphold my appeal but they did suggest to police that it would be a good idea to destroy my DNA. They cannot require the police to do so, they can only suggest it. The police eventually decided to do so. At that point because of all the frustration I had started a civil action against police. So after two and half years the police destroyed my DNA, my Police National Computer record and my fingerprints but did not apologise and still found there was no lessons learnt. Eventually the police offered to settle out of court and sent a full apology to my wife and I admitting the arrest was unlawful, and some compensation. The apology was going to be shown to the officers involved as well so that they could learn the lessons of the mistake. When my solicitor got the letter, my wife and I went to Southwark tube station where I was stopped and searched and arrested and took a picture of myself holding it in front of the station.

At that time as well, the police eventually relented to return the photographs they had held on to. The police took 8 photographs, 4 of me in the police station and 4 when they searched my flat including one of my wife who at no point was suspected of anything. So I was very keen on having these destroyed as well. It was only at the very last minute, after four and a half years, that they relented to return the photographs at the same time as they apologised.

AK: How did you feel about being treated like a terrorist?

DM: I think it is really awful. But I also realised later how lucky I had been in many ways, when I got my whole IPCC case file that I requested under the subject access request under the Data Protection Act. I had to ask several times to get missing pages, but I eventually got the whole thing. Subject access requests for your personal data held by any organisation and freedom of information requests for general information held by a public body are two very useful tools I recommend. I realised that some aspects had skipped me in the past such as for the space cordoned around the tube station they had asked officers from the infamous TSG (Territorial Support Group) to come and help. And that while I was in the police station one officer was very keen to get me into a white paper suit and get my clothes off to a lab and take me to the infamous  Paddington Green police station. That did not happen and I did not know about it either at the time. That scared me in retrospect. My wife knew what had happened to me only after I made the phone call, and I was released on bail after 9 hours. So I was disappeared not for that long but people can be disappeared at that time for up to 28 days and now 14 days. The police don’t have to tell anyone what is going on, we can really disappear. This is a great concern.

AK: How do you feel now that section 44 has been declared unlawful according to the European Court of Human Rights?

DM: I think section 44 has been counterproductive. I have gone and asked questions about it at the Metropolitan Police Authority (MPA). Anyone can go ask a question at the MPA, the process is described on its website. It took Pennie and human rights organisations and the European Court of Human Rights to change things. The MPA was not very responsive when I went to ask a question. The police claim that this policy will stop terrorists from roaming around; however the stop and search has never led to arrest any dangerous terrorist. It does not seem very efficient in this respect. They said that the terrorists were scared of it and wouldn’t go around in the streets. But this is not very convincing. Also, what you see in many instances, that the officers from the stop and search teams don’t seem to be very ready if they ended up opening a bag with some explosive in it or whatever. They don’t seem to have the right training to handle that.

The other aspect is that the police quite ironically feel that this power was going to improve the community relationships of the police with local communities. That it would reassure the communities that cannot be called the main justification that the police used for these powers. I have not met anyone who was convinced by that aspect. If you look at how they updated their code of conduct, they reinforce that aspect of the stop and search. I think on the contrary it was very divisive, I think it affected some communities in a disproportionate manner. People from certain groups especially Muslims and photographers were the most affected, including very young people. That is very strange. I went as part of the stop and search group meeting to North London mosque, where kids under 13 had been stopped and searched. It was used in a disproportionate matter. I don’t think it was efficient. I think there is a big problem using any police power without reasonable suspicion.

AK: Can you explain the difference between the different stop and search powers under the Terrorism Act?

DM: Section 43 caters for when police has reasonable suspicion that somebody is a terrorist. I think that is a power they should have used more if they considered somebody to be a terrorist. Section 44 of Terrorism Act 2000 did not require any suspicion. However it was suspended and has now been replaced by section 47A.

But that is now over with a remedial order creating section 47A. So the problem was when the authorisation is in place, I think it was similar to section 44 where people can be stopped and searched without any suspicion. The key difference in section 47A concerns the authorisation that must be in place prior to the stop and search. To give a section 44 authorisation a senior officer only needed to find it  expedient for the prevention of acts of terrorism. For a section 47A a senior officer must reasonably suspect that an act of terrorism will take place, and the extent of the authorised place and the duration of the authorisation must be necessary. Also the officer does not need it to be authorised by the Home Secretary any more but the Home Secretary must confirm it within 48 hours. The Home Secretary can reduce the power of an authorisation if she finds it that it’s not justified. There is no publication of the authorisations afterwards, not even of the extent and timing. That means there is no way for anyone who has been stopped and searched under this power to independently check whether there was an authorisation in place when they were stopped and searched. That is still not possible. There is no visible way to ensure that the authorisation was effectively justified. There are supposedly some controls but these are still behind closed doors.

We know from section 44 that even if the intention of Parliament were good the powers can be abused. In fact in this instance since section 47A was introduced by a remedial order, Parliament has seen the remedial order only after it came to effect. That was a decision by the Home Office without Parliamentary consultation or approval. Parliament had not seen the draft of the order. The Home Office has included very similar powers in the Protection of Freedoms Bill.

So as I mentioned it took four years one month and twenty-six days precisely of fighting with police after my stop and search and arrest until they formally apologised. I think one of the reasons, possibly the key reason, of why they arrested me is to possibly justify their over reaction in stop and search. My fight was not focussed so much on stop and search which was found to be legal while the arrest was found to be unlawful. My main concern was to get my record expunged, an apology and for the police to learn some lessons, but  this is linked because they could not have arrested me if they had not initially stopped and searched me under section 44.

The stop and search is not always an issue in itself but there are consequences that can flow from a stop and search. They closed the tube station, they had a 500 meters cordon. They had to justify why they did all that. Arresting me was possibly an answer, and they probably did not expect I would fight for my rights the next four years. And the consequences are still ongoing, the IPCC will destroy its complaint file in 2014 and the police will destroy its investigation file in 2015. And now my wife is worried if I arrive late, wondering whether the same thing happened again. She is concerned about what I am wearing; she is worried if I can fit the profile that I was fitting then. We have never really liked the tube but now I have to take it to go to my work and I am not comfortable using it now.

AK: Would you say that wider Britain should be concerned about anti-terror laws, and not just British Muslims, who feel that they are the main target of anti-terror laws?

DM: Yes. Clearly everyone is targeted. There have been several interventions in Parliament and recounting by MPs of how they have ben stopped and searched. So anyone can be stopped and searched. But some peoples are stopped and searched much more than others. For instance when I went with the stop and search group to North London mosque, there was a man probably 30 years old who explained  he had been followed by police while coming to the mosque for early Morning Prayer and then stopped and searched. That happened several times and police was not always polite about it. So clearly some people have been targeted more than others. I think Muslim communities and photographers are the two communities that are affected more than others; photographers, because they are witness of the way police behaves. And they tend to document in a visible way by definition. But I think everyone was effected by stop and search.  (And everyone can volunteer to join the several independent police monitoring groups such as stop and search monitoring groups and independent custody visitors.) The fact that it did not require any reasonable suspicion meant that, that this aspect of the counter terrorism laws has affected most people irrespective of generation, sex, and religion whatever. However there has been a focus on young people. Statistics show that older people are stopped and searched less.

AK: Even the photographers that were taking pictures of buildings around the city of London or other cities?

DM: I think that is also linked to the privatisation of the public space. A large part of London is private space. The whole of the Docklands is private space Private space owners for whatever reason do not like photographers to take pictures. Then the police get involved and they just use stop and search power because it is convenient. There was a campaign by the police to inform businesses about how to become suspicious of potential terrorists. And there were all these incidents on what they call hostile reconnaissance. So taking pictures of buildings makes one a suspect and it goes further than that. I had in my pocket, when I was arrested, some doodles; I had a piece of paper with some doodles on it. So when the police searched me during the interview they thought it was a map of Southwark tube station and they were quite insistent on it. It’s idle doodles. You could see where they want you in it. There is no way you can disprove what they wanted to see in it. The doodles were what they wanted them to be. It’s not only just photographs but drawings are suspicious as well. Three things they found on me were considered suspicious; first was these doodles, second a small promotional booklet I got at the cinema screening of the film The Assassination of Richard Nixon.

AK: And they considered that suspicious?

DM: Yes may be they thought that I could go back in time and kill Richard Nixon. And the third was the part of an old broken contact-less work pass where one can see the induction loop and one integrated circuit. It was not working but you could see the induction loop. I had also a working work pass and an Oyster card but as you could not see the components but that was ok, that was fine. Only the one that was not working was suspicious.

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