Mr Hakan Cifci v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jay,Lady Justice Nicola Davies |
| Judgment Date | 01 July 2022 |
| Neutral Citation | [2022] EWHC 1676 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3427/2021 |
[2022] EWHC 1676 (Admin)
Lady Justice Nicola Davies
Mr Justice Jay
Case No: CO/3427/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Adam Straw QC and Tayyiba Bajwa (instructed by Morgan Has) for the Appellant
Tom Little QC (instructed by the Crown Prosecution Service) for the Respondent
Hearing dates: 9 June 2022
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down will be deemed to be Friday 1 st July 2022 at 10.30am. A copy of the judgment in final form as handed down can be made available after that time, on request by email to listoffice@administrativecourtoffice.justice.gov.uk;
Lady Justice Nicola Davies and
This is the judgment of the court in respect of an appeal by way of case stated by the appellant arising from his conviction before the Chief Magistrate, sitting in the Westminster Magistrates' Court on 1 July 2020 for an offence of wilfully obstructing or seeking to frustrate a search or examination contrary to para. 18(1)(c) of Schedule 7 (“Sch.7”) to the Terrorism Act 2000 (“TA 2000”).
The appellant is a member of the Kurdistan National Congress (“KNC”). On 19 March 2020 at St Pancras International he was stopped by a police officer, questioned, searched and detained for 3–4 hours and various items of his property were copied or seized pursuant to Sch.7 including his mobile phone and laptop computer. The conviction was founded upon a wilful refusal by the appellant to provide his PIN and password for devices seized during the search.
Facts
At the trial the evidence adduced comprised a statement of agreed facts and oral evidence from the examining officer PC Ross. The appellant did not give evidence. Within the agreed facts was the following:
(a) The appellant was served with a Notice of Detention which explained that the purpose of exercising the powers under Sch.7 was to determine whether the appellant appeared to be a person who has been concerned in the commission preparation or instigation of acts of terrorism.
(b) The appellant was informed of his rights under detention. He said he would like his headquarters to be told, the KNC and named a solicitor whom he would like to consult.
(c) The appellant was asked to provide the PIN number for his phone. He said that he could not give that information; he referred to a matter of privacy and ethics. He was asked to provide the access code for his laptop computer and the USB stick he was carrying; the appellant refused saying it was a matter of privacy. The appellant said there was nothing political on his devices that could constitute a criminal offence and nothing that related to any proscribed terrorist organisation.
(d) The appellant was arrested for the offence of wilfully obstructing or seeking to frustrate a Sch.7 search or examination, he was cautioned and made no reply.
(e) Subsequently at an interview under caution, and accompanied by a solicitor, he answered no comment to all questions which included a repeat request for the PIN number to his mobile telephone, the password to his laptop and the passwords to his USB devices.
(f) On 27 March 2020 the appellant was charged with the Sch.7 offence, cautioned and made no reply.
At the hearing before the Chief Magistrate, PC Ross confirmed that in interview he asked the appellant questions about the nature of his political beliefs in relation to the self-determination of Kurdish people, his political activity with the KNC, and any association he might have with the Kurdish group named the “YPG”. PC Ross confirmed that neither the KNC nor the YPG were proscribed. He did not think he asked the appellant about his affiliation with any other groups. The re-examination of PC Ross by counsel on behalf of the CPS included the following:
“Q: To the extent that his ethnicity and political views played any part was that integral to your determination about his involvement in terrorism or separate?
A: It would have been a separate – could have been a factor in the reason why he was stopped.
JUDGE GOLDSPRING: I am afraid I did not catch that.
Q: I think your answer was it could have been a factor in why he was stopped.
A: Yes…
Q: To the extent that Mr Cifci's ethnicity or political interests played any part in your decision to conduct the examination were those factors integral to your making a determination about his involvement in terrorism or were they separate?
A: Well his ethnicity is not a factor, but his political interests would be a factor in the determination.”
PC Ross did not further clarify the matters in his evidence.
In closing submissions, counsel for the Crown relied upon the authority of Rabbani v DPP [2018] 2 Cr App R 28 (“ Rabbani”) (paras. 22–29) in support of its contention that the “examination” by the police officers was conducted for the statutory purpose contained in Sch.7. If it were found to be the statutory purpose, then any question relating to the appellant's political views was integral to making the determination as to terrorism and any question relating to a protected characteristic was integral to that finding and therefore lawful.
The appellant in Rabbani was made the subject of a Sch.7 stop and search at Heathrow airport. In answering questions he refused to provide the PIN and password for his mobile phone and laptop computer. He appealed his conviction for an offence of wilfully obstructing or seeking to frustrate a search or examination, contrary to para 18(1)(c) of Sch.7 to the TA 2000. The evidence before the court was that the stop was not random. There was no evidence from the defence which raised the question of legality of the stop nor one which raised a concern which might have called for an answer. The relevant passages of this authority are as follows:
“22. Mr Blaxland submitted that there was a burden on the Crown in any such case to call evidence to establish the legality of the stop… If the search was random, then the legality might be established simply by evidence that the individual conducting the stop was authorised under the Act to exercise the power, and that he or she was doing so within the general purposes of the statute. However where the search was not random, as here, Mr Blaxland submitted that more was required, to demonstrate that the search was not “arbitrary”. If there was information or intelligence which could not be communicated to the defendant, then the court should convene a closed or ex parte hearing, and the interests of the defendant could be safeguarded by the instruction of a special advocate to protect his interests….
24. Mr Tom Little QC for the Crown responded to these submissions….. There was no special need to call evidence to establish the legality of the stop. The officers were acting in the execution of duty. There had been no submission of abuse of process before the Chief Magistrate. There was no evidence from the defence which raised a question of illegality of the stop, or even raised a concern which might have called for an answer. There had of course been evidence of the lawful use of the power, in the sense that the powers were exercised by police officers authorised to do so, and exercised for the statutory purpose. There was no call for more evidence. It was illogical for a random search to be regarded as lawful (as Mr Blaxland accepted such a search would be) if a search which was not random called for an explanation in evidence before it could be lawful. The extent of the powers, their lawful basis and the proportionality of the powers were all made clear by the Supreme Court in Beghal….
27. In my judgment, this ground fails and fails clearly. There was no basis on which the legality of the stop or the request for the PIN and password was called into question. There was the basic evidence from the officers as I have indicated. I see no basis for a requirement for more.
28. Further, in the absence of some specific factors being advanced, I can see no logic to the proposition that a random exercise of the powers of stop and search would be lawful, but an exercise of the powers based on intelligence or knowledge of the individual would be unlawful without some evidence of the material which prompted the stop.”
Counsel on behalf of the appellant relied upon the authority of Nagarajan v London Regional Transport [2000] 1 AC 501 (“ Nagarajan”) in support of the contention that if the interview of the appellant were found to be focused on legitimate political beliefs held by the appellant then discrimination was made out. It was submitted that on the evidence adduced, the court could not be sure that the appellant's political belief in Kurdish independence was not a significant or important cause in the decision to stop him. Allowing for that doubt, together with the fact that the burden is upon the Crown to prove that the stop was lawful, the appellant should be acquitted.
In an extempore judgment following closing submissions, the Chief Magistrate stated that he agreed with the Crown's analysis of paras. 22–28 of Rabbani. He said that in addressing the issue as to whether or not the stop was lawful the court was required to ask (1) were the officers properly qualified to conduct the examination? the Chief Magistrate answered that in the affirmative; and (2) was the court satisfied to the criminal standard that the examining officer, PC Ross, was carrying out the Sch.7 stop for its statutory purpose in essence to establish whether or not there was a terrorism offence either being committed, will be committed or had been committed? The Chief Magistrate relied on an answer given by PC Ross in re-examination to support...
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