The British High Court has called for a legislative change to “Schedule 7” terrorism powers under which David Miranda, partner of Guardian journalist Glenn Greenwald, was held for questioning.
However, the judge has ruled that the Schedule 7 regime is legally acceptable and that Sylvie Beghal, held under Schedule 7, did not have her right to liberty under European Convention law breached. Nor was her right to a private life breached by the obligation under Schedule 7 to answer any questions put by security officers – however personal.
Lord Justice Gross in his conclusion said: “In short, the balance struck between individual rights and the public interest in protection against terrorism does not violate the fundamental human rights in question.”
The judges recommended the law be changed to bar the use of admissions gained at a Schedule 7 questioning being used against the individual at any subsequent criminal trial. Schedule 7 questioning is not accompanied by the usual protections for suspects including the (qualified) right to silence and the absolute right to a lawyer.
Sylvie Beghal, a French national whose husband is an Algerian who was convicted in France on terrorism charges, was taken aside for questioning when she arrived from Paris in January 2011. She was not suspected of being a terrorist, but Schedule 7 to the Terrorism Act allows detention for up to nine hours without any grounds for suspicion “at a port or border area”. The questioning must be solely to assess whether the individual “appears” to be a terrorist. The detainee must, according to paragraph 5: “give the examining officer any information in his possession which the officer requests” – including answering any questions.
Beghal “was told the police needed to speak to her to establish if she may be a person concerned in the commission, preparation or instigation of acts of terrorism”, according to the judgment. In the High Court case she argued that stopping people without grounds for suspicion breached rights under the European Convention on Human Rights (Article 5: Right to liberty) and Article 8 (right to private life). A claim under Article 6 (fair hearing) was also rejected. She also said the detention was a breach of European Union law on free movement.
Lord Justice Gross said regarding Article 8: “As a general matter, the Schedule 7 powers are neither arbitrary nor disproportionate … a fair balance has been struck between the rights of the individual and the interests of the community.” (Para 112)
On the issue of the extensiveness of questioning he said: “the ability to question widely is necessary to build up a picture of the travel in question and its connection (if such there be) to acts of terrorism”. He noted that Beghal was returning to Britain, where she lives, after a visit to her husband in prison and hence was not stopped at random. The questions “were, moreover, rationally connected to the statutory purpose and in no way disproportionate. We reject the suggestion that questions as to the financing of the travel, the Appellant’s means of communication, her background and the relationships inquired into had nothing to do with that statutory purpose [to establish if Beghal appeared to be a terrorist].” (Para 111)
He distinguished the Schedule 7 powers from general stop and search powers (and hence from findings in human rights case Gillan v UK ): “In our judgment port and border control is very different from a power to stop and search, potentially exercisable anywhere in the jurisdiction.”
‘The absence of a requirement of reasonable suspicion is both explicable and justifiable. We are not at all persuaded that these powers render the public vulnerable to interference by public officials acting on any personal whim, caprice, malice’ – Lord Justice Gross
Search was limited to a category of people – those at ports and airports. “At least in significant part, they [the powers] plainly reflect that this country, as ‘an island nation’ concentrates controls at its national frontiers. We venture the view that the Strasbourg Court would accord a wide margin of appreciation [national discretion] for individual states in respect of port and border controls.” (Para 91)
On Article 5 right to liberty he said: “On the facts of this case, the Respondent [the Director of Prosecutions] accepts that there was interference with the Appellant’s Article 5 rights. The issue is whether such interference was justified.” He concluded there was such justification in the same terms as his view on Article 8 rights.
The same argument was to be applied to European Union freedom of movement rights: “The Appellant’s [Freedom of Movement] rights do not require further and independent consideration and no more need be said of them.”
Her rights under Article 6 were never engaged and hence could not have been breached. This is because questioning under Schedule 7 is not deemed to be part of a criminal investigation (ie it is “extra-judicial”) but rather part of border control. The danger of self-incrimination under the obligation to answer questions therefore could not arise to damage her right to a putative fair trial.
In general “the exercise of Schedule 7 powers is subject to cumulative statutory limitations”. There is a code of conduct (Examining Officers under the Terrorism Act 2000 pdf)) and an annual report by the Independent Reviewer (Anderson, 2013 report pdf). “The absence of a requirement of reasonable suspicion is both explicable and justifiable. For the
reasons already given, we are not at all persuaded that these powers render the public vulnerable ‘…to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than for which the power was
conferred’ – Lord Bingham’s test for arbitrariness, in Gillan” (House of Lords case).
Lord Justice Gross added: “For our part, we would urge those concerned to consider a legislative amendment, introducing a statutory bar to the introduction of Schedule 7 admissions in a subsequent criminal trial. The terms of any such legislation would require careful reflection, having regard to the legitimate interests of all parties but, given the sensitivities to which the Schedule 7 powers give rise, there would be at least apparent attraction in clarifying legislation putting the matter beyond doubt.” (Para 146)
This is a disturbing judgment on two significant grounds. Firstly in saying that Schedule 7 powers are justified in the public interest because they are directed against terrorism takes the usual “public interest in a democratic society” exception to ECHR breaches to a new level. Gross is close to arguing that as long as terrorism is the reason for a law on groundless detention that would otherwise breach Article 5 then it is legally justifiable.
In other words it would seem an umbrella intention behind the act (to combat terrorism) can override the injustice in a particular individual case – where, as in Beghal v DPP, no terrorism was alleged as the reason for detaining Beghal for questioning.
It should be noted that Article 5 does allow for exceptions but they are rather more narrowly drawn than the exceptions for some other European Convention Articles “in the interest of morals, public order or national security in a democratic society”.
The Article 5 exceptions are to do with detention for alleged crimes or breaching court orders or to bring an individual to court or even to prevent infectious diseases spreading. Beyond that, the Article is clear that “No one shall be deprived of his liberty save in the following cases [ie the exceptions] and in accordance with a procedure prescribed by law.”
Emphasis is here added to and in order to show that Article 5 does not say “or in accordance with a procedure prescribed by law”. Schedule 7 is part of a parliamentary Act so is a procedure passed “by law”. But that is not sufficient for an Article 5 exceptions since detaining people with no grounds and keeping them for nine hours is not one of the exceptions. To count as an exception it must be one of those included in the provisions of Article 5 and passed by national law.
‘Concerns as to the privilege against self-incrimination are inapplicable where the compulsory powers in question are exercised other than as part of a pre-trial stage in criminal proceedings destined to culminate in a subsequent criminal trial’ – Lord Justice Gross
Gross also argues, in his discussion of Article 8 breaches, that ports/airports are in some sense special places and he weaves a historical story about our “island nation” (para 91) and the particular responsibility the state has for protecting borders. This plea for exceptionalism is based on historic notions of royal prerogative, certain areas that should remain within executive power and that the Strasbourg human rights court would undoubtedly “accord a wide margin of appreciation for individual states in respect of port and border controls”. Schedule 7 performs “a classic function of port and border control”.
This is to shield ports and borders and airports from the human rights regime even though they are places where people are often highly vulnerable and isolated. Can there really be a legal justification to exclude certain areas of geography which actually serve vast numbers of people (Gross notes they add up to 244 million in a year) from the normal rule of law? It’s a great British tradition (see The strangely misleading case of the law for historic examples) but it has been superseded by international human rights law with its own code of limited exceptions in the public interest.
Secondly the judges come to an odd conclusion in throwing out the Article 6 (right to a fair hearing/trial) claim: that Schedule 7 is not directed at proving criminality (merely to establishing whether the individual “appears” to be a terrorist) so that the right to a fair hearing does not even arise.
It was argued by the respondents that any evidence garnered in the questioning from compulsory answers would not be adduced in a criminal trial. Yet that is not the state of the law at present – hence Gross’s call for change. He notes: “It is common ground that there is (currently) no specific statutory bar precluding the introduction in evidence in subsequent criminal proceedings of admissions obtained pursuant to a Schedule 7 examination.”
He trusts to courts ruling out evidence gathered in this wasy – see PACE s.78 (1) – but the PACE rule is not obligatory. It would suggest Schedule 7 is incompatible with Article 6 – particularly given the Crown Prosecution Service refused to give an undertaking never to use Schedule 7 evidence in a criminal case. A declaration of incompatibility might seem the proper procedure for Gross to follow. He preferred to merely urge the government to amend the law.
Gross suggests “where a person’s ECHR rights are potentially engaged, the correct temporal starting point for considering whether those rights have been breached is the moment as from which he was charged for the purposes of Art. 6.1.” He adds: “concerns as to the privilege against self-incrimination are inapplicable where the compulsory powers in question are exercised other than as part of a pre-trial stage in criminal proceedings destined to culminate in a subsequent
criminal trial”. (para 125)
This is to say that you need not be protected from self-incrimination until there is a criminal case in the offing. That might be fine if a police officer is making inquiries on the street but it makes no sense in a situation of enforced answers to questions put by security officials.
It also raises the issue of what is the point of Schedule 7? Gross notes: “It seems clear that the examination was not carried out for the purpose of obtaining admissions or evidence for use in criminal proceedings, though we cannot of course exclude the possibility that the answers might have yielded information potentially of evidential value.” (Para 128) Can no criminal proceedings follow from Schedule 7 examinations? Are they mere fishing expeditions as David Miranda’s supporters suggested?
Gross LJ seems to be handing the authorities a huge and arbitrary power – allowing that breaches of the right to liberty are acceptable if under the general rubric of anti-terrorism – even if there is no terrorism in prospect and none that has specifically given rise to the detention.Gross notes that in Gillan v UK (on stop and search powers) the Strasbourg court said: “The law must thus be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct.” How can that be when “regulate his conduct” means in effect innocent people opting not to travel across UK borders – or skirt too close to them as in David Miranda’s case?
Gross says: “At all events, having regard to the context, the absence of a requirement of reasonable suspicion does not lend any or significant support to the Appellant’s case that these powers are exercised arbitrarily. Realistically, in the present context, the requirement of reasonable suspicion would deter the proper exercise of Schedule 7 powers and render them all too easy to evade, so increasing the risk to the public.” (Para 97)
The fact is Schedule 7 is arbitrary, certainly as it is operated, leading to 60,000 or more innocent people a year being stopped (ie having their liberty and free movement restricted) without any grounds, questioned under compulsion, potentially about private affairs and possibly physically searched (ie having their right to privacy breached) while only a tiny handful are prosecuted. Does “arbitrary” have some other definition?
The judgment (pdf): Judgments/sylvie-beghal-dpp-28082013.pdf
Case cited: Bank Mellat v Her Majesty’s Treasury (No.2)
The facts of the case (according to the CPS):
Sylvie Beghal [in a burqa according to other reports] landed at East Midlands Airport on the evening of 4 January 2011 on a flight from Paris and was stopped by officers who informed her they wished to conduct an examination under Schedule 7, Terrorism Act 2000 in order to ascertain whether she may be involved in terrorist activities. She was uncooperative through out the process and refused to answer questions without the presence of a solicitor. She was allowed to speak with a solicitor on the telephone.
She was charged with three offences: assaulting a constable contrary to section 89 Police Act 1996; wilfully obstructing a search and wilfully failing to comply with a duty under Schedule 7, Terrorism Act 2000.
On the morning of trial Beghal pleaded guilty to wilfully failing to comply with a duty under Schedule 7 Terrorism Act 2000, which related to her failure to answer questions and was sentenced to a conditional discharge for 12 months and costs of £100. Schedule 7 says those subject to it “must give the examining officer any information in his [or her] possession which the officer requests”,
She later took the case to the High Court on the grounds that stopping and questioning people without reasonable suspicion breached the European Convention. Schedule 7 of the Terrorism Act 2000 does not require any “grounds for suspicion” in order for an officer to detain someone for questioning, though, it is argued here, there must be some sort of context or background of terrorism that officers are responding to – though not necessarily any immediate or known threat.
Sched 7 Para 2(4) says: “An examining officer may exercise his powers under this paragraph whether or not he has grounds for suspecting that a person falls within section 40(1)(b) [ie is a terrorist]. According to the BBC “Police did not suspect her of terrorism but wanted to speak to her about ‘possible involvement’, judges heard [at the original trial].
Requirements on the detainee according to Sched 7 para 5:
“A person who is questioned under paragraph 2 or 3 must –
(a) give the examining officer any information in his possession which the officer requests;
(b) give the examining officer on request either a valid passport which includes a photograph or another document which establishes his identity;
(c) declare whether he has with him documents of a kind specified by the examining officer;
(d)give the examining officer on request any document which he has with him and which is of a kind specified by the officer.
Questions put to Silvie Beghal
(Most she refused to answer hence her conviction)
i) The reasons for her travel;
ii) Where she had stayed in France;
iii) Whether she had remained in France or travelled on from there;
iv) The identity of the (adult) person waiting for her at East Midlands airport and to whom her two children (who had been allowed to proceed, see above) were handed over;
v) Whether she had been arrested by the police either in the United Kingdom or any other country;
vi) Her relationship with her husband, given his imprisonment for acts of terrorism;
vii) Whether she was in employment or on benefits;
viii) How she had paid for her flight and whether anyone else had paid for it;
ix) Whether she had a motor vehicle;
x) Names and dates of birth of her father, mother and brothers and sisters (and the addresses of her siblings);
xi) Whether she was French/Algerian and whether she had dual nationality;
xii) How long she had lived in England;
xiii) Whether she had a mobile phone with her.