Schedule 7: High Court rejects Sylvie Beghal human rights case

Note: A European Court of Human Rights judgment has now (February 2019) declared a violation in this case. See below Beghal v UK.

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.

David Miranda Schedule 7 detention: Arbitrary or Alice in Wonderland?

Schedule 7 to the Terrorism Act, under which a Guardian journalist’s partner, David Miranda, was held for nine hours at Heathrow, is an odd piece of legislation – not least because, unusually for criminal law, it deals with people who are for the most part wholly innocent. It is drafted with the intent – and has clearly had the effect – of detaining large numbers of innocent people to ask them about their terrorist activities.

As a result about 70,000 people were detained under Schedule 7 in 2011-12 – of whom only 24 were then arrested for terrorist related offences.

The authorities are perfectly happy with this appalling hit rate. The official guidance to officers when they use Schedule 7 is as follows: “Examining officers must take into account that many people selected for examination using Schedule 7 powers will be entirely innocent of any unlawful activity … All persons being stopped and questioned by examining officers must be treated in a respectful and courteous manner.” (Examining Officers under the Terrorism Act 2000 pdf)

The advice points out that “The powers to stop, question, detain and search persons under Schedule 7 do not require an examining officer to have any grounds for suspicion against any individual prior to the exercise of the powers.”

This may seem somewhat bizarre: a crucial anti-terrorism power that needs not even the tiniest scintilla of evidence of a person’s involvement in terrorism before it is operated against that person; and a clear acknowledgment that, for the most part, the examining officer will be wasting his own and the traveller’s time.