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Sean O'BeirneTypically there must be an objectively justifiable reason for stopping, searching or detaining a person or obliging them to answer questions.

The Supreme Court confirmed that the power to stop, search and detain a person travelling through a port or across a border without suspicion is compatible with the UK’s obligations under the ECHR.

Background

Mrs Sylvie Beghal is a French national who is ordinarily resident in the United Kingdom. Her husband, a French national, is currently in custody in France on terrorist offences. On 4 January 2011 Mrs Beghal returned from visiting her husband in Paris with her children, arriving at East Midlands Airport. She was stopped by police while passing through immigration control. Exercising their powers under Paragraph 2 of Schedule 7 of the Terrorism Act 2000 the police told Mrs Beghal that they needed to speak to her to establish whether she was involved in terrorist acts. She was not formally detained, arrested or suspected of being a terrorist. She sent her two eldest children to the arrivals gate, asked for a lawyer and requested and was granted an opportunity to pray. She was first searched and then was allowed to speak with her lawyer on the telephone. Over a period of half an hour, Mrs Beghal was asked a number of questions in the absence of her lawyer. She refused to answer most of the questions and was charged with the wilful failure to comply with the requirement under Schedule 7 to answer questions. On 12 December 2011, at Leicester Magistrates Court Mrs Beghal pleaded guilty to the charge.

Legal Background

Paragraph 2 of Schedule 7 of the Terrorism Act 2000 (TA 2000) deals specifically with the questioning of individuals at ports and borders. It states that “an examining officer may question a person to whom this paragraph applies for the purpose of determining whether he appears to be a person who [is or has been concerned in the commission, preparation or instigation of acts of terrorism].”

The consequences for failing to comply with a Schedule 7 power are set out in Paragraph 18(1):

A person commits an offence if he—

(a)wilfully fails to comply with a duty imposed under or by virtue of this Schedule,

(b)wilfully contravenes a prohibition imposed under or by virtue of this Schedule, or

(c)wilfully obstructs, or seeks to frustrate, a search or examination under or by virtue of this Schedule.

A person found guilty of a Paragraph 18 offence is liable to a fine and/or imprisonment.

The powers in Schedule 7 are not dependent on the presence of any reasonable suspicion of either a past offence or act of terrorism or a plan to commit such in the future (paragraph 2(4) Sch. 7 TA 2000). The powers are expressly provided to assist officers stationed at ports and borders to make counter-terrorism inquiries of any person entering or leaving the United Kingdom. If those enquiries lead to reasonable suspicion different provisions under the TA 2000 are engaged.

The Proceedings

Mrs Beghal appealed to the Divisional Court arguing that the Schedule 7 powers breached her articles 5, 6 and 8 rights under the ECHR. Her appeal was dismissed.

The Supreme Court was asked to determine whether Schedule 7 TA 2000 was compatible with the ECHR, in particular articles 8, 5, and 6, and the common law privilege against self-incrimination.

In summary Mrs Beghal’s argument was that:

  • Article 8 had been breached because the powers created by Schedule 7 did not depend on any objectively justifiable grounds of suspicion so they failed the test of legality (Gillan v United Kingdom (2010) 50 EHRR 45). Further, unless the questioning was based on an objectively established reasonable ground for suspicion it was disproportionate. As a less intrusive measure such as requiring reasonable suspicion could have been adopted the failure to adopt such a measure did not strike a fair balance.
  • In holding her to allow questions to be asked of her he had been deprived of her liberty without lawful excuse in breach of article 5.
  • Answering the questions could have exposed her or her husband to potential prosecution as so she could avail herself of the privilege against self-incrimination and could have opened her up to an unfair trial in breach of article 6 should the answers she had been compelled to give been used against her.

The Decision

By a majority of 4:1, the Supreme Court dismissed the appeal. The reasoning of the majority (Lord Hughes, Lord Hodge, Lord Neuberger and Lord Dyson) can be summarised as follows:

Article 8

Gillan was distinguished on the basis that in the present case the interference a person suffered was comparatively slight, convincing independent justification for the powers existed, impressive supervision of the powers by the Independent Reviewer was being carried out, there were substantial potential benefits to having the powers and an equally effective but less intrusive proposal had not been put forward and so the powers met the test of legality.

In answer to three and four of Lord Sumption’s formulation of proportionality in Bank Mellat v HM Treasury (No 2) [2013] UKSC 39 search and questioning powers not grounded in objectively demonstrable reasonable suspicion were of increased value to combatting the threat of terrorism. To restrict the powers to those in respect of whom a reasonable suspicion can be demonstrated would not be of the same utility. The powers were proportionate because a fair balance had been struck between the comparatively light intrusion into a person’s privacy, the safeguards present and the fact that any intrusion did not amount to an unreasonable burden to bear in the interests of improving the prospects of preventing or detecting terrorism.

Article 5

The compatibility of the Schedule 7 powers with article 5 only barely arose in the present case given the short period of time that Mrs Beghal had been prevented from moving on. Nevertheless it was reasoned that it would be lawful to detain a person for as long as necessary to complete a lawful process (Gahramanov v Azerbaijan (application No 26291/06) (unreported) given 15 October 2013) and on some occasions a person may need to be detained for longer than necessary to complete the lawful process. For such detention to be proportionate, objectively demonstrated grounds are called for. In Mrs Berghal’s case, as she was not detained for longer than was necessary to complete the process of questioning there had been no breach of article 5.

Self-incrimination and Article 6

Schedule 7 powers are not aimed at the obtaining of information for the purpose of prosecuting either the person questioned or their spouse. The powers would be rendered largely nugatory if privilege applied so the necessary implication was that it did not. No scenario could be thought of where information gathered under Schedule 7 would not be excluded under either section 78 PACE 1984 or article 6 so there was no likely risk that criminal proceedings would follow based on the information. Without the existence of a sufficient risk of the answers being used in criminal proceedings either against her or her spouse the Appellant could not avail herself of the common law privilege against self-incrimination. Article 6 could only be engaged once a person became a suspect in criminal proceedings at which stage it would confer the privilege against self-incrimination. Where, as in Saunders v United Kingdom (1997) 23 EHRR 313 and the present case, a person is asked questions at a stage when he has not been charged and the questioning does not form part of a criminal investigation, article 6 will not be engaged.

Lord Kerr (dissenting) in a poignant judgement raised a number of issues with his fellow Lord’s reasoning. He reasoned that without the presence of an objective means of assessing how and why the powers have been exercised in a given circumstance the Schedule 7 powers could not be said to be in accordance with law. He also challenged the view that because a measure was an effective counterterrorism tool the way in which it was deployed would be automatically proportionate and in accordance with law. In relation to the privilege against self-incrimination Lord Kerr expressed the view that it was not necessary to show that criminal proceedings were likely and added that without any guarantees that the information gleaned from such questioning would not form the basis of prosecution, the powers were incompatible with article 6.

Comment

Alterations to the Schedule 7 powers have been made by Schedule 9 of Anti-Social Behaviour, Crime and Policing Act 2014. The amended Schedule 7 powers provide a person’s the right to consult a solicitor and for any questioning to be postponed until that solicitor’s arrival, unless that would prejudice the inquiry. This should ensure that persons questioned are better informed about the implications of their answers or lack of.

There are still no provisions in the amended powers to address the concerns that David Anderson QC, the current Independent Reviewer, has raised in a number of his previous reports. His key concerns are threefold and can be summarised as:

  1. the fact that no suspicion is required for the exercise of most Schedule 7 powers;
  2. the fact that answers given under compulsion are not expressly rendered inadmissible in criminal proceedings; and
  3. the need for clear and proportionate rules governing the data taken from electronic devices.

Mr Anderson QC noted in his most recent report that, applying the reasoning of the majority in this case, had Mrs Beghal been detained for six hours without objective suspicion, had her electronic data been retained for substantial periods of time, and had anything she said under compulsion been admitted as incriminating evidence in a subsequent criminal trial her rights would have been infringed. It is surprising that the Supreme Court were unwilling to extend their reasoning to such cases.

This case is likely to go to Strasbourg and Lord Kerr’s dissenting judgement certainly provides a number of bases on which this decision may be challenged or the Schedule 7 powers generally could be challenged in the future. Other cases dealing with Schedule 7 powers are currently in the courts. Malik v UK (Application no. 32968/11) which challenges the powers under Schedule 7 was adjourned by the Strasbourg court earlier this year pending the decision in Beghal. Schedule 7 has also being challenged in the case of Miranda v Home Secretary [2014] EWHC 255 (Admin) and will be heard in the Court of Appeal in December this year.

It is also apparent that the border powers created for the prevention of terrorism should be reviewed not simply because of the matters raised in this case but because, and perhaps more importantly, the number of persons in the UK that have been able to use UK ports leave to join with international terrorist organisations has steadily risen in the past few years while the occasions on which the powers have been used has been declining (between 2013/14 and 2014/15 there has been a 27% reduction in the number of persons examined) suggesting that the powers may be becoming ineffective.