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IMG_2114On 12-13 November, the Supreme Court (Lords Neuberger, Kerr, Dyson, Hughes and Hodge) heard the case of Beghal v Director of Public Prosecutions, a challenge to the broad power of detention contained in Schedule 7 to the Terrorism Act 2000.

The Schedule 7 power

Under Schedule 7, a person can be detained for up to nine hours by an immigration officer at a port or airport “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.” Similar powers have been contained in anti-terrorism legislation in England and Wales since the enactment of the Prevention of Terrorism (Temporary Provisions) Act 1974: a good example of “emergency” powers making themselves a permanent home on the statute book.

Powers of detention – usually exercised by the police – generally depend on the officer exercising the power having a “reasonable suspicion” that certain criteria are fulfilled. But under Schedule 7, a person can be detained simply to find out whether he or she “appears to be” concerned in terrorism. A power to detain in order to find out whether there is even an “appearance” of such involvement is, clearly, far-reaching and requires cogent justification. Since the Schedule envisages that even the mere “appearance” of involvement in terrorism will be the eventual product of, not the initial trigger for, the person’s detention and examination, this raises the question of what triggers the decision to detain in the first place. What criteria govern the decision to exercise the power? Is the power being disproportionately used against certain groups?

The power is widely used. In 2013-14, more than 44,000 people were stopped under Schedule 7: more than half of those, and more than 80% of those who were detained for more than an hour, were non-white. To date, the most high-profile exercise of the power is in the case of David Miranda, the partner of journalist Glenn Greenwald, who was detained at Heathrow Airport in 2012 while carrying journalistic material connected to Mr Greenwald’s work with Edward Snowden. Mr Miranda’s challenge to the use of Schedule 7 in his case was unsuccessful at first instance, and his appeal has been stayed pending the decision of the Supreme Court in Beghal.

The Supreme Court has already drawn attention to the lack of any reasonable suspicion requirement in Schedule 7. In R v Gul [2013] UKSC 64, an appeal concerning other aspects of the anti-terrorism regime, the Court stated that “detention of the kind provided for in the Schedule represents the possibility of serious invasions of personal liberty”: [64]. The Court also noted that:

“While the need to bestow wide, even intrusive, powers on the police and other officers in connection with terrorism is understandable, the fact that the powers are so unrestricted and the definition of ‘terrorism’ is so wide means that such powers are probably of even more concern than the prosecutorial powers to which the [Terrorism] Acts give rise.” [63] (Lord Neuberger and Lord Judge: Lady Hale and Lords Hope, Mance, Kerr and Reed agreed)

The decision of the Divisional Court

Now the appeal in Beghal brings the issue squarely before the Court. The appellant, Sylvie Beghal, is a French national who was detained under Schedule 7 at East Midlands Airport on return from a visit to her husband, who was in custody in France for terrorism offences. She was then convicted at Leicester Magistrates’ Court of a criminal offence of failing to answer questions which were put to her during her detention (para 18(1)(a) of the Schedule). She appealed by way of case stated to the Divisional Court, on the basis that the prosecution amounted to a violation of her rights under the ECHR, arts 5, 6, and 8.

The Divisional Court (Gross LJ, Swift and Foskett JJ) began by considering the relevance of the decision of the European Court of Human Rights in Gillan v UK 50 EHRR 1105. That case concerned the power to stop and search, also without reasonable suspicion, under the Terrorism Act 2000, s 44. The Strasbourg Court – disagreeing with the House of Lords ([2006] 2 AC 307) – held that the applicants’ stops and searches under s 44 violated art 8, because the s 44 power was so broadly drawn, and so lacking in safeguards against abuse, that it failed “to offer the individual adequate protection against arbitrary interference” [79]. This meant that they s 44 power was not “in accordance with the law” for the purposes of art 8.

The Divisional Court held that Gillan was distinguishable, for two reasons: (1) the fact that the Schedule 7 Code of Practice was created later and, in the Court’s view, was more robust than that which had applied to s 44 (but “we would not wish to rest our decision on this point”), and (2) “the starkly different context of the powers in issue”: i.e. the fact that the Schedule 7 power is confined to border points.

The Court went on to conclude that Schedule 7 did not violate art 8, relying on the context (anti-terrorism); the limited geographical location to which the powers apply (border control); the limited category of people to whom it applies (those passing through ports and borders); and the limited purpose of the detention (deciding whether the person appears to be concerned in terrorism). These “cumulative limitations on the Sch 7 powers tell, in our judgment, against their being arbitrary.” [96] The Court also considered that there were sufficient safeguards, in the form of the Code of Practice, the possibility of legal challenge in an individual case, and the existence of the Independent Reviewer of Terrorism Legislation. All in all, the Court held, the “level of precision of these powers falls comfortably on the right side of the line.” It went on to conclude that the powers were necessary and proportionate, thus fulfilling the other requirements of Article 8, and reached the same conclusion in respect of art 5.

On art 6, the appellant argued that the art 6 privilege against self-incrimination had been violated, since the Schedule contains no safeguards to reduce the risk of self-incrimination, and the Appellant had no right to legal advice at the time of the examination, and no assurance that answers given by her would not be used against her in subsequent criminal proceedings.

The Divisional Court held that, although the CPS could not give any undertaking that answers to questions put under Schedule 7 would not be adduced in evidence in a subsequent criminal prosecution, such questioning could not be considered as “an inquiry preparatory to criminal proceedings’ so as to engage Article 6, but instead was “an inquiry relating to border control with the specific public interest of safeguarding society from the risk of terrorism.” [129]

Issues in the appeal

The Supreme Court will have to consider:

  • Whether the detention and examination of a person under Schedule 7 is compatible with the rights under ECHR, arts 5, 8 (the CPS concedes that those rights are engaged). In determining this issue, the Court will, for the first time, examine directly the conflict between the decisions of the House of Lords and the Strasbourg Court in Gillan.
  • Whether the examination of a person under Schedule 7 engages ECHR, art 6 and, if so, whether the law provides sufficient safeguards for a person who is being examined in such a situation.

The Court’s answers to these questions will be important in indicating where the line should be drawn between legitimate efforts to counter terrorism, and over-broad coercive powers.