THE Supreme Court's decision in Beghal v DPP [2015] UKSC 49; [2015] 3 W.L.R. 344 is a prime example of the balance that must be struck between the rights of the individual and the need to prevent terrorism. In this case, the majority placed their emphasis on the latter. Strong criticisms were made, however, of the relevant legislation. Schedule 7 to the Terrorism Act 2000 empowers “examining officers” (constables, immigration officers and customs officers) to stop, question, search, and detain persons at ports or borders. The powers apply whether or not the examining officer has grounds to suspect that person of being a terrorist (para. 2(4)). It is an offence to fail wilfully to comply with an examining officer's request (para. 18).
Sylvie Beghal was stopped at East Midlands Airport when returning from visiting her husband in Paris, where he was in custody for terrorism-related offences. She was searched and questioned under Sch. 7 for around 30 minutes (in total the process took closer to two hours, but part of that time was for prayer at her request). She refused to answer most questions and was charged with the para. 18 offence.
A court of five judges, Lord Kerr dissenting, held that Sch. 7 did not breach Articles 5, 6, or 8 of the European Convention on Human Rights (Lord Kerr would have held that all three provisions were breached). The majority backed away from an obiter remark in R. v Gul [2013] UKSC 64; [2014] A.C. 1260 that Sch. 7 raised “the possibility of serious invasions of personal liberty” (Lords Neuberger and Judge, at [64]) – at least on the facts of Beghal.
Lord Hughes (with whom Lord Hodge agreed) gave the leading judgment for the majority. He held that the admitted interference with Article 8 was justifiable because it was “in accordance with the law” under Article 8(2). The court distinguished Gillan v UK (2010) 50 EHRR 45, where stop-and-search powers were held to have breached Article 8. Gillan, it was argued, did not render unlawful all powers not grounded on a suspicion (an argument echoed in R. (on the application of Roberts) v Commissioner of Police of the Metropolis [2015] UKSC 79). In his dissent, Lord Kerr doubted whether any powers exercised without objectively reasonable grounds could really be “in accordance with the law”. Because no reasons need be given to justify the exercise of such a power, decisions might be arbitrary and challenges would be almost impossible. Lord Kerr, quoting Gillan, alluded to the fact that such powers were surely antithetical to the rule of law (at [94]).
Lord Hughes noted the different expectations of people frequenting airports as opposed to “any person anywhere in the street” (at [38]). By entering an airport, people are put on notice that certain intrusions may be required. As Lord Kerr argued in his dissent, however, it is a stretch to extend the average person's expectations of necessary intrusions in the course of air travel (e.g. showing an identity document or passing through a metal detector) with the upper limits of the Sch. 7 powers (e.g. being detained for six hours (para. 6A(3)) or having items of property seized (para. 11)).
Gillan was also distinguished on the basis that the powers challenged in that case were being used arbitrarily and increasingly frequently. By contrast, evidence suggests that Sch. 7 powers are being used in a non-discriminatory fashion and increasingly rarely. As Lord Kerr noted, however, the fact that the powers “have not in fact been used arbitrarily or in a discriminatory way” is not sufficient – the powers are problematic if they could be used in such a way (at [93]). He noted that the Code of Practice for the use of Sch. 7 mandates that ethnicity or religion cannot be the sole reason for stopping a person. That either of those characteristics could therefore legitimately be one such reason is, nevertheless, worrying. The decreasing use of Sch. 7 powers (according to the independent reviewer of terrorism legislation, 0.014% of people travelling through British ports in 2014–15 were stopped under Sch. 7) is reassuring. It does, however, raise the question of whether the powers are as essential as the majority supposed.
The Sch. 7 powers were also considered to be a proportionate restriction on privacy to pursue the legitimate objective of preventing terrorism. A requirement for examining officers to form a reasonable suspicion would, Lord Hughes argued, drastically curtail Sch. 7's effectiveness. Again, in light of its low usage, the effectiveness of the legislation is not axiomatic. And, although Beghal's experience could arguably be described as proportionate, that argument becomes less convincing as one considers the upper limits of Sch. 7. Lord Hughes added that, although not an issue in the present case, retention of data gathered beyond an initial investigatory period should be justified on a reasonable suspicion. Had the court reviewed Sch. 7 on its face, rather than based on the specific facts of Beghal, a breach of Article 8 would almost certainly (and quite properly) have been established.
The Article 5 discussion was rather perfunctory. Lord Hughes argued that the deprivation of liberty, “[t]o the extent that there was any” (at [56]) was no longer than necessary. Article 5 was not breached because the deprivation of liberty was justified under Article 5(1)(b) – to secure the fulfilment of an obligation prescribed by law. The particularly short period of Beghal's detention was relevant to that finding, although it was similar to that in Gillan (where the European Court of Human Rights did not determine the Article 5 question, but implied that it may have been prepared to find a breach). The Strasbourg court has held that an otherwise lawful limitation of Article 5 becomes unlawful if exercised arbitrarily, for example, if the detention continues for longer than necessary (Saadi v UK (2008) 47 EHRR 17). Again, Beghal is not a ringing endorsement of Sch. 7. Lord Hughes hinted that the upper limit of detention (six hours) may well breach Article 5.
Lords Neuberger and Dyson postulated two alternative options to Sch. 7: either we “abandon” the scheme altogether, or (the straw man alternative) provide that “everyone passing through ports and borders” should be stopped and questioned (at [91]). Reducing the maximum duration of detention, or requiring an objectively reasonable suspicion for detentions closer to the upper time limit (as endorsed by Lord Hughes), are obvious possible compromises between those drastic options. Many such amendments have already been made to Sch. 7 (and its predecessors), including the recent reduction of the maximum period of detention from nine hours to six (para. 6A inserted by the Anti-Social Behaviour, Crime and Policing Act 2014, Sch. 9, para. 2).
The court then considered whether there had been an unjustified encroachment of the privilege against self-incrimination, which is implicit in Article 6. The majority held that Article 6 was not engaged because Beghal was not “charged” for the purposes of that provision. Lord Kerr, however, argued that Beghal faced an appreciable risk of prosecution based on anything she might say and therefore her position had been “substantially affected” (Ambrose v Harris [2011] UKSC 43; [2011] 1 W.L.R. 2435). The court should have also paid more attention to the separate non-cooperation offence under para. 18. Whether Article 6 was breached is a question which there is not space in this note to answer but it is submitted that it was at least engaged.
The majority also observed that evidence gathered under Sch. 7 would almost certainly be excluded at any later trial under s. 78 of the Police and Criminal Evidence Act 1984 (which allows trial judges to exclude prosecution evidence that would otherwise adversely affect the fairness of proceedings). The court added its voice to calls for Sch. 7 to be amended to provide an express guarantee of such exclusion. Section 78 does not, however, provide so-called “derivative use” immunity: information extracted under Sch. 7 questioning would be excluded, but leads followed up from that information would be admissible (Lord Kerr, at [117]). Nor does s. 78 address the Articles 5 and 8 implications of the detention, questioning, searching, etc. in and of itself, regardless of the use to which any resulting information is put.
The case is likely to proceed to Strasbourg. In any event, that court had adjourned its decision in Malik v UK (Application No. 32968/11) while Beghal was decided. We also await the Court of Appeal's decision in R. (on the application of Miranda) v Secretary of State for the Home Department (on appeal from [2014] EWHC 255 (Admin); [2014] 1 W.L.R. 3140). In contrast to Beghal, Malik was held for over four hours (although the questioning lasted for around 25 minutes) and Miranda was detained and questioned for nine hours. Malik had to provide a mouth swab and fingerprints, he had copies of his credit cards and documents taken, and his mobile phone was seized. Miranda had encrypted data taken. Beghal hints at the likelihood of successful challenges to Sch. 7 in both cases. By taking a case-specific approach rather than reviewing the legislation on its face, the court has surely only delayed the inevitable.
