More developments under Schedule 7
28 August 2013
Sylvie Beghal v Director of Public Prosecutions, [2013] EWHC 2573 (Admin) – read judgment
In a judgment with implications for the detention of David Miranda, the High Court has today dismissed an appeal against a conviction for wilfully failing to comply with a duty imposed by virtue of Schedule 7 to the Terrorism Act 2000.
The Court rejected the submission that the Schedule 7 powers in question violated the Appellant’s right under Articles 5, 6 and 8 of the ECHR. However, the Court urged consideration of a legislative amendment introducing a statutory bar to the introduction of Schedule 7 admissions in subsequent criminal trials.
Part of the following report is taken from the Court’s press summary, part is based on the judgment itself.
The central (though not sole) issue concerned 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, Articles 6 and 8 of the European Convention on Human Rights . 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.(para 2)
Factual Background
The appellant is a French national who is ordinarily resident in the United Kingdom. Her husband is currently in custody in France in relation to terrorist offences. On the 4th 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.
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. She 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. The Appellant requested to consult with a lawyer and later asked to have an opportunity to pray. When she had finished praying, she was interviewed about her family, her financial circumstances and her recent visit to France. She did not provide answers to most of those questions. When the examination was over she was cautioned and reported for the offence of failing to comply with her duties under Schedule 7 by refusing to answer any questions.
On 12 December 2011, at Leicester Magistrates’ Court she 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. In this appeal, by way of case stated, that court asked
1) whether it had erred 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) whether it had erred 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
Her appeal was dismissed.
Reasoning of the Court
Issue I (Articles 8 and 5, ECHR and Rights to Freedom of Movement)
Lord Justice Gross, giving the judgment of the Court, in relation to the Article 8 argument, concluded that the Schedule 7 powers were neither arbitrary nor disproportionate. As expressed in Bank Mellat, a fair balance had been struck between the rights of the individual and the interests of the community.
This conclusion was also dispositive of the argument in relation to Article 5.
As to the freedom of movement argument for the appellant as an EU citizen, Lord Justice Gross acknowledged that these rights were important, and served to counter any argument that the Schedule 7 powers bit only on individuals who chose to travel. That said, it seemed clear to him that the argument as to freedom of movement rights was subsumed into the debate under Articles 5 and 8, and, to an extent, Article 6, and served to shape the context of that debate. Therefore this particular argument did not require further and independent consideration (para 114).
Issue II (Article 6, ECHR)
Two principal issues were canvassed under this heading. First, whether the appellant’s Article 6 rights were engaged by the exercise of the Schedule 7 powers of examination. Secondly, if Art. 6 was engaged, whether the Appellant’s Article 6 rights were violated.
The Court concluded that Article 6 was not engaged by the Schedule 7 examination. This conclusion was itself fatal to the appellant’s appeal under Article 6. (para 133)
The Court went on to consider whether the Appellant’s rights under Article 6 were violated – on the assumption, contrary to its primary view, that those rights were engaged. Even if Article 6 had been engaged, the safeguard provided by s.78 of the Police and Criminal Evidence Act was sufficient to prevent a violation. (para 139)
Lord Justice Gross LJ added:
It is one thing to conclude that the Schedule 7 powers of examination neither engage nor violate a defendant’s Art. 6 rights; it is another to conclude that there is no room for improvement. 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 was followed by a postscript in which Gross LJ stressed that the court had concluded that the Schedule 7 powers of examination survived the challenges advanced before it.
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. As already touched upon in the context of Article 6, it does not follow that there is no room for improvement. (para 147)
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Gross LJ accepts without demur that Mr Beghal was not suspected of terrorist-related activity and was not under arrest. He (like Collins J before him in CC v Commissioner of Police for the Metropolis and Secretary of State for the Home Department [2011] EWHC 3316 (Admin) is of the view that the presence of a solicitor would have had made no difference, even though Parliament provided for such a safeguard under Schedule 8. Mrs Beghal’s refusal to answer questions before the arrival of the solicitor she had summoned completed her offence. It is an example of a right rendered worthless in practice.
Curiously, at para 129 after dismissing the Article 6 argument, he says that the most effective way of ensuring the protection of convention rights is the application of s78(1) PACE under which the judge may exercise his discretion to exclude evidence obtained in violation of Convention rights. Then, straight out of Monty Python, he says, at para 129 of the judgment, that the examination of Mrs Beghal under Schedule 7 was not an inquiry preparatory to criminal proceedings , it was, he said, in no sense part of the scheme under PACE. It was, he said an inquiry relating to border control with the specific public interest of safeguarding society from the risk of terrorism. If that is is true statement of the law, and Schedule 7 does not engage PACE, then how is a judge to engage s78(1) to exercise statutory discretion to exclude?
Beghal is interesting for a number of reasons, not least its timing. Goss LJ prays in aid of David Anderson’s previous observations on Schedule 7 in support of a judicial endorsement of it before David Anderson has (as he stated on Newsnight on the day following the detention of Mr Miranda) that he would produce a speedy report into the operation of Schedule 7 ). This has taken the wind out of Mr Anderson’s sails who will now be required to have reqard to the judgment of the High Court in whatever report he produces for the Government.
The report is also interesting since it gives cognisance to the function of Schedule 7 as a source of ‘recruitment’ while the case also recognises that evidence obtained under Schedule 7 if relevant and admissible may be used in subsequent criminal proceedings. Thus, the suggestion by the court in Beghal that Parliament may wish to legislate in this area is very likely to receive short-shrift once it is realised that the security and intelligence services, in possession of evidence obtained under Schedule 7 capable of leading to a prosecution for an unrelated offence, may encourage these agencies to negotiate ia ‘deal’ with the individual concerned to ‘rat out’ those in his or her community for which insufficient evidence exists for the imposition of a control order in return for the incriminating evidence to be quietly dropped!
What the case also tends to indicate is, that like Mr Miranda who is the partner of someone of interest, Mrs Beghal is the spouse of a convicted French terrorist and we may infer from these two cases that those in any type of relationship at all to persons of interest are likely to be stopped and subjected to Schedule 7. In which case it is not advisable to be in possession of anything likely to lead to a prosecution for any other offence and to be aware that a requirement to answer unrestricted questions fully and completely may reveal an exploitable weakness of significant intelligence value leading to the arrest and conviction of others.
Two things I am wondering:
(1) If I have a duty to answer questions and I can only be detained for 9 hours, well then I will speak very, very slowly and answer in very long winded prose. I am a lawyer, so that shouldn’t be a problem. I’ll be “answering” all right, but they may have to wait until I get to the point.
(2) What if I don’t speak English? I am a foreign citizen and I’d pretend that I won’t be comfortable with being interrogated in English. It will buy me some time until they find an interpretor.
What might be most fascinating is not the impact this case has on Miranda, but what potential impact the Miranda case might have on this one- if it goes to the ECt following the first instance judgement in Miranda. If the high court does (somehow) accept the SSHD’s broad interpretation of terrorism in Miranda, could this not suffice to tilt the balance away from a proportionate interference with Art.8 rights in the minds of the European court?
I too am not a lawyer and so cannot fully follow LJ Gross legal arguments here. It has always seemed to me, and still does, that Schedule 7 suspends all customary human and legal rights of EU citizens with a view to detaining and questioning people who the police want to interview in connection with terrorism real and potential. This is fine if you accept this as what it does and why, but I do not see it is compatible with EU Human rights legislation. In particular LJ Gross says that there are safeguards against its misuse but it seems to me the only safeguard is the intervention of the independent advisor on security and given the what is it 60,000+ uses of the Schedule last year, this seems a pretty inadequate safeguard to me.
So if I have understood the Terrorism Act and Schedule 7 correctly, it allows authorities to stop anyone and force them to talk. What a mockery of the law to make it into an instrument of torture…
Lord Justice Gross says:
“… the balance struck between individual rights and the public interest …”
What is this??
You can take a look at his speech from 2010:
http://www.rusi.org/downloads/assets/Gross_LJ.pdf
“If one was to compile a list of factors which permit our country to punch above its weight, views might differ. The City, the arts, universities would be obvious candidates. But, any sensible list would, to my mind, include our armed forces, security and intelligence
services, diplomatic service and our legal system. In all of these areas we stand tall in the world.”
In light of current events it looks like we are quite outstanding in the last category, in one way or another. Egregious is the word that I was thinking of…
Gross goes on to talk about what’s best for Britain and about endless balancing acts.
(I don’t know him or his thinking though, so I do not wish to sound unfair – after all, he may be some kind of blessing in disguise.)
So now the responsibility and blame will have to be thrown to the ECtHR again? Or maybe an appeal may have a chance in the Supreme Court?
With the archaic ECHR and its court also riddled with utilitarian nonsense, I am not even sure it will be able to take this relatively simple task on.
This is “sus” all over again and being used for the same abuses under “sus” too, if you look a bit “foreign” then the chances of you being profiled, detained and questioned without recourse of knowing or being advised of your rights and unless you divulge information and this could be information that the agents of the state are not legally allowed to ask you for elsewhere, if you refuse or seen to be a bit uppity then you are rubber stamped with a prosecution that too seems to have a catch all generic feel about it making it extremely hard to prove innocence when this is just so vague and one sided.
I have not read the judgement, neither am I am lawyer.
But am nevertheless intrigued by your presentation of the factual background. In para 2 sentence 1 you report police saying they did not suspect her of being a terrorist. In sentence 2 you then say police wanted to see if she was involved in commission, preparation or instigation of acts of terrorism. You surely cannot tell someone they are not suspected of being a terrorist, but then ask them exactly that?
In a clearer example replace sentence one with burglary “we do not suspect you of being a burglar” and sentence two with commission, preparation and instigation of acts of burglary. It just doesn’t add up what the police are saying.
But maybe that’s the whole joy of Schedule 7.
Judgement is very long and I have not finished reading it carefully. One thing that concerns me is something I expressed today on Twitter. A reasonable person would need access to a lawyer just to feel reassured that in fact there is a duty to answer any question asked, no matter how personal or irrelevant it might seem. Most people I suspect would be inclined to believe as Ms Beghal did that she had the right to remain silent at least until a lawyer was on the scene. For this insistence to incur a criminal penalty seems to me fundamentally unfair. Has this judgment addressed that in any way?