Beghal v DPP
| Jurisdiction | England & Wales |
| Judge | Lord Justice Gross |
| Judgment Date | 28 August 2013 |
| Neutral Citation | [2013] EWHC 2573 (Admin) |
| Date | 28 August 2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3047/2012 |
[2013] EWHC 2573 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Gross
Mrs Justice Swift
Mr Justice Foskett
Case No: CO/3047/2012
Matthew Ryder QC (instructed by Abrahams Law) for the Claimant
Louis Mably (instructed by Crown Prosecution Service) for the Defendant
Paul Nicholls QC (instructed by the Treasury Solicitor) for the Secretary of State for the Home Department
INTRODUCTION
This is the judgment of the Court to which we have all contributed.
The central (though not sole) issue on this appeal concerns the compatibility of the powers to "stop, question and detain" contained in Schedule 7 to the Terrorism Act 2000 ("TACT 2000" and "Schedule 7" respectively) with, in particular, Arts. 6 and 8 of the European Convention on Human Rights ("ECHR"). The appeal thus gives rise to the question of where the balance is to be struck between the rights of the individual and the public interest in safeguarding the country from terrorism. This is a challenging area for the law, requiring vigilance as to individual liberties while retaining a firm grasp of the practical needs of national security.
On the 12 th December, 2011, at Leicester Magistrates' Court, before District Judge Temperley, the Appellant pleaded guilty to one charge of wilfully failing to comply with a duty imposed under or by virtue of Schedule 7, contrary to para. 18(1)(a) of that Schedule. That plea followed (1) a ruling by the District Judge that he had no power to stay the proceedings as an abuse of process of the Court on the grounds advanced by the Appellant and that only a higher Court could do so; (2) an indication from the District Judge that, in those circumstances, it was highly likely he would find the Appellant guilty of the charge in question.
Before the District Judge, the Appellant had submitted, inter alia, that the powers given to the police under Schedule 7 infringed her rights under Arts. 5, 6 and 8 of the ECHR and her rights to freedom of movement ("FOM") between Member States under Arts. 20 and 21 of the Treaty on the Functioning of the European Union ("TFEU").
The Appellant now appeals to this Court by way of Case Stated.
THE FACTS
The facts are not in dispute and may be taken from the Case Stated by the District Judge ("the Case"), augmented by some few matters of detail which we were told without objection.
The Appellant is a French national, ordinarily resident in the United Kingdom. Her husband is currently in custody in France in relation to terrorist offences. On the 4 th January, 2011, following a visit to her husband, she returned to this country with her three children, arriving at East Midlands Airport, at around 20.05, on a flight from Paris. At the UK Borders Agency desk she was asked to remain; officers from Leicestershire Constabulary subsequently conducted an examination under Schedule 7.
As the Case records:
" 5. It was common ground that:
i) The Appellant was stopped with her three children at the airport but was not formally detained or arrested.
ii) She was told she was not under arrest and the police did not suspect her of being a terrorist. She 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.
iii) The Appellant was taken to an examination room with her infant child, the other two children being allowed to proceed to Arrivals. Her luggage was taken to another room to be searched.
iv) The Appellant requested to consult with a lawyer and later asked to have an opportunity to pray. While she was praying one of the officers spoke to her lawyer by telephone and indicated she would be free to speak to him in 15 minutes.
v) After the Appellant finished praying she was advised she could telephone her lawyer after she had been searched. The officers then proceeded with the search, which is not the subject of this Appeal.
vi) The Appellant was then allowed to speak to her lawyer by telephone. The officers made it clear to both the Appellant and her lawyer that they would not delay the examination questioning pending the arrival of the lawyer.
vii) The Appellant was then questioned in the absence of her lawyer having been served with form TACT 1, the contents of which were read out to her. She indicated she would only answer questions after her lawyer arrived.
viii) During the interview the Appellant was asked a number of questions regarding her family, her financial circumstances and her recent visit to France. She did not provide answers to most of those questions.
ix) When the examination was over the Appellant was cautioned and reported for the offence of failing to comply with her duties under Schedule 7 by refusing to answer any questions.
x) The Appellant's lawyer arrived after the examination had finished. The officers did not seek to question the Appellant again in the presence of her lawyer."
As to timings, the Appellant was given time to pray at about 21.00. The telephone consultation with her lawyer took place at around 21.23. The Appellant was taken to a room for the Schedule 7 examination and was served with the TACT 1 notice at about 21.30. The Appellant was cautioned at about 22.00 and told she was "free to go". The Appellant's legal representative arrived at about 22.40.
In a little more detail, the questions asked of the Appellant, included the following:
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.
The Appellant was subsequently charged with three offences, namely: (1) wilfully obstructing a search under Schedule 7; (2) assaulting a police officer contrary to s.89, Police Act 1996; (3) wilfully failing to comply with a duty under Schedule 7.
Charges (1) and (2) were eventually dismissed; the Respondent offered no evidence on those charges following the Appellant's pleas of guilty (as already recorded) to charge (3).
The Case stated two Questions ("the Questions") for the consideration of this Court:
" 1. Did I err in law in refusing to stay the proceedings against the Appellant on the basis that her prosecution for failure to comply with a duty under Schedule 7 of the Terrorism Act amounted to a breach of her rights under Articles 5, 6 and 8 of the ECHR (including her rights of access to a lawyer, the privilege against self-incrimination and right to privacy and family life)?
2. Did I err in law in refusing to stay the proceedings against the Appellant on the basis that her prosecution for failure to comply with a duty under Schedule 7 of the Terrorism Act 2000 amounted to an unjustifiable interference with her rights to free movement within the territory of the European Union as an EU national? "
It may at once be noted that Mr. Ryder QC, for the Appellant, rightly in our view, disclaimed in terms any criticism of the District Judge's ruling that the relief sought by the Appellant could only be granted by the High Court. Accordingly, the Questions will be re-formulated (see below), reflecting the focus of the appeal on the substance of the Appellant's complaints rather than the District Judge's conclusions or assumptions as to the limits of his jurisdiction.
THE RELEVANT PROVISIONS
It is next convenient to introduce the central statutory and ECHR provisions.
Starting with TACT 2000, a "terrorist" is defined by s.40(1)(b) as follows:
" … 'terrorist' means a person who —
is or has been concerned in the commission, preparation or instigation of acts of terrorism."
"Terrorism" itself is widely defined in s.1 of TACT 2000; it is unnecessary to set out the definition here.
Schedule 7 is headed "Port and Border Controls". Paragraph 1 defines an "examining officer" as any of a constable, an immigration officer and a suitably designated customs officer. Insofar as material, the Schedule continues as follows:
" Power to stop, question and detain
2
(1) An examining officer may question a person to whom this paragraph applies for the purpose of determining whether he appears to be a person falling within section 40(1)(b).
(2) This paragraph applies to a person if —
(a) he is at a port or in the border area, and
(b) the examining officer believes that the person's presence at the port or in the area is connected with his entering or leaving Great Britain or Northern Ireland…..
(3) This paragraph also applies to a person on a ship or aircraft which has arrived [at any place in Great Britain or Northern Ireland] (whether from within or outside Great Britain or Northern Ireland)].
(4) An examining officer may exercise his powers under this...
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