Beghal v DPP
| Jurisdiction | England & Wales |
| Judge | Lord Kerr,Lord Dyson,Lord Hodge,Lord Neuberger,Lord Hughes |
| Judgment Date | 22 July 2015 |
| Neutral Citation | [2015] UKSC 49 |
| Date | 22 July 2015 |
| Court | Supreme Court |
[2015] UKSC 49
Lord Neuberger, President
Lord Kerr
Lord Dyson
Lord Hughes
Lord Hodge
Appellant
Matthew Ryder QC Steven Powles Edward Craven
(Instructed by Abrahams Law)
Respondent
John McGuiness QC Duncan Atkinson
(Instructed by Crown Prosecution Service Appeals Unit)
Intervener (Secretary of State for the Home Department)
James Eadie QC Jonathan Hall QC
(Instructed by Treasury Solicitor)
Intervener (Equality and Human Rights Commission)
Dan Squires
(Instructed by Leigh Day)
Intervener (Liberty)
Alex Bailin QC Iain Steele
(Instructed by Liberty)
Intervener (Islamic Human Rights Commission, Muslim Council Britain and Cage Advocacy UK Limited))
Thomas De La Mare QC Ravi Mehta
(Instructed by Leigh Day)
Heard on 12 and 13 November 2014
(with whom Lord Hodge agrees)
The appellant was questioned at an airport under Schedule 7 to the Terrorism Act 2000 ("TA 2000"), which requires a person in her position to answer questions asked by police officers, immigration officers and customs officers for the purpose there set out. She refused to answer the questions and was subsequently convicted of the offence of wilfully failing to do so, contrary to paragraph 18 of that Schedule. Her appeal against her conviction raises the issue whether Schedule 7 is compatible with the European Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR"), and in particular with articles 8 (right to respect for private and family life), 5 (right to liberty) and 6 (privilege against self-incrimination).
Schedule 7 of TA 2000 has been somewhat amended, by the Anti-Social Behaviour, Crime and Policing Act 2014 ("the 2014 Act"), since the date when the appellant was questioned, but the issues of compatibility remain substantially the same. Since the argument before this court has in effect been concerned with its future application as well as with the appellant's particular case, it is convenient to set out the statute in its present form, unless necessary to draw attention to any change which has been made.
Paragraph 2 of Schedule 7 creates the power which was exercised. So far as material, it provides:
"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 or his travelling by air within Great Britain or within 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 paragraph whether or not he has grounds for suspecting that a person falls within section 40(1)(b)."
The statutory purpose for which the questions may be asked is thus for determining whether the person questioned appears to fall within section 40(1)(b). That in turn defines "terrorist" for the purposes of the Act, and does so in these terms:
"(1) In this Part 'terrorist' means a person who —
(a) has committed an offence under any of sections 11, 12, 15 to 18, 54 and 56 to 63, or
(b) is or has been concerned in the commission, preparation or instigation of acts of terrorism."
So the statutory purpose for which the questions may be asked is for determining whether the person appears either to be, or to have been, concerned in the commission, preparation or instigation of acts of terrorism.
"Terrorism" is defined for the purposes of the Act in section 1. Shorn of inessential detail it means the use or threat of action which meets all of three conditions: (1) it must be done for the purpose of advancing a political, religious, racial or ideological cause, (2) it must be designed to influence the government or an international governmental organisation or to intimidate the public and (3) it must involve serious violence to a person or to property, danger to life or serious risk to public health or the risk of serous interference with an electronic system. "Acts of terrorism" are therefore to be construed as acts or omissions having these characteristics.
Whilst the statute creates some new offences, most acts of terrorism once committed will in any event constitute long-established criminal offences such as murder, infliction of grievous bodily harm, criminal damage, explosives offences or the like. The TA 2000 is largely concerned with the essential process of counter-terrorism, much of which is preventative in character. Part II deals with the proscription of terrorist organisations. Part III prohibits fund-raising for terrorist purposes and makes provision for the disclosure of terrorist property. Part IV contains provisions for terrorist investigations, which are not confined to inquiry into known criminal acts which have already occurred but, clearly necessarily, extend to planned or prospective acts, including the commission, preparation or instigation of acts of terrorism. It is within Part IV that Schedule 7, containing the power now under consideration, is given effect. Schedule 7 is headed "Port and Border Controls".
It follows that what Schedule 7 paragraph 2 does is to create a power to stop and to question people passing through ports or borders in order to see whether they appear to be terrorists in the sense defined by section 40(1)(b), that is to say whether they are or have been concerned in the commission, preparation or instigation of acts of terrorism.
This core power to question is supplemented by subsequent provisions of Schedule 7 which give the officer additional powers in relation to a person questioned under paragraph 2. These are as follows:
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(i) to stop; under paragraph 6 the officer may stop the person in order to question him;
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(ii) to require production of documents carried; under paragraph 5 the person questioned must give the officer any information in his possession which the officer requests, provide his passport or other document verifying his identity, and hand over any document requested if he has it with him;
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(iii) to search; under paragraph 8 the person may be searched, an intimate search is not permitted and a strip search is allowed only when there are reasonable grounds for suspecting concealment of something which may be evidence that the individual falls within section 40(1)(b), and then only on the authority of a second and senior officer;
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(iv) to copy and retain material; paragraph 11 (and now paragraph 11A (inserted by the 2014 Act)) contain provisions for the retention of material handed over or found; this includes power to copy and retain electronic data contained on any device carried, the detail of which it will be necessary to consider later;
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(v) to detain; under paragraph 6 (and now paragraph 6A (inserted by the 2014 Act)) the officer may detain the person, for the purpose of exercising the questioning power under paragraph 2; by paragraph 6A he may not continue the questioning beyond one hour without invoking the more formal rules which attend detention; these are found in separate provisions in both Schedule 7 and Schedule 8 and include regular reviews by a different officer senior to the examining officer; it is necessary to note that at the time of the appellant's questioning this power to detain was limited to nine hours, but now it is limited to six hours (the latter including the first hour).
The sanction in the event that the person stopped wilfully fails to comply with the obligations of Schedule 7 is conviction of a specific offence created by paragraph 18. That paragraph provides:
"(1) A person commits an offence if he —
(a) wilfully fails to comply with a duty imposed under or by virtue of this Schedule;
(b) wilfully contravenes a prohibition imposed under or by virtue of this Schedule; or
(c) wilfully obstructs, or seeks to frustrate, a search or examination under or by virtue of this Schedule."
The penalty available is a fine and/or imprisonment with a maximum of three months, together of course with the generally available lesser penalties of discharge or community orders; an amendment passed in 2003 to increase the maximum imprisonment to 51 weeks has never been brought into force.
These statutory powers are supplemented by a Code of Practice for officers exercising them, issued by the Home Secretary under Schedule 14 paragraph 6, laid before Parliament, published generally and available wherever the powers may be exercised.
This power of questioning, and its associated provisions, is separate from the general power to arrest, detain and question persons who are reasonably suspected of having committed an offence, and, in the context of terrorism, from the specific power to arrest on reasonable suspicion of having been concerned in the commission, preparation or instigation of an act of terrorism. That latter separate power is provided for by section 41 and different consequential provisions are made by Schedule 8 for the conduct of detention which is consequent upon such an arrest. The power in issue in the present case is a preliminary power of inquiry in aid of the prevention of terrorism. It is not dependent on the existence of any reasonable suspicion of either a past offence or act of terrorism or a plan to commit such in future. It is expressly provided in order to assist officers stationed at ports and borders to make counter-terrorism inquiries of any person...
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