Communicated on 22 August 2016
FIRST SECTION
Application no. 4755/16
Sylvie BEGHAL
against the United Kingdom
lodged on 14 January 2016
STATEMENT OF FACTS
The applicant, Ms Sylvie Beghal, is a French national who was born in 1969 and lives in Leicester. She is represented before the Court by Ms N. Garcia-Lora of Fountain Solicitors, a lawyer practising in Walsall.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Schedule 7
Schedule 7 to the Terrorism Act 2000 (“TACT”) empowers police, immigration officers and designated customs officers to stop, examine and search passengers at ports, airports and international rail terminals. No prior authorisation is required for the use of Schedule 7 and the power to stop and question may be exercised without suspicion of involvement in terrorism. However, questioning must be for the purpose of determining whether the person appears to be concerned or to have been concerned in the commission, preparation or instigation of acts of terrorism. A passenger can be held for questioning for up to nine hours and must “give the examining officer any information in his possession which the officer requests”. In other words, persons detained under Schedule 7 are compelled to answer questions from the police and must not “obstruct” or “frustrate” any police searches.
If someone fails to co-operate he or she is deemed to have committed a criminal offence and could face up to three months in prison, a fine or both.
2. The facts of the present case
The applicant, a French national, is ordinarily resident in the United Kingdom. Her husband, who is also a French national, is in custody in France in relation to terrorist offences.
On 4 January 2011, following a visit to her husband in France, the applicant and her three children returned to the United Kingdom on a flight from Paris. The flight landed at East Midlands Airport at approximately 8.05 p.m.
At the United Kingdom Borders’ Agency (“UKBA”) the applicant and her children were stopped but she was not formally detained or arrested. She was told that she was not under arrest and that the police did not suspect her of being a terrorist, but that they needed to speak to her to establish if she might be “a person concerned in the commission, preparation or instigation of acts of terrorism”. She was therefore taken to an examination room with her youngest child. As the applicant had arranged for someone to meet her at the airport, her two older children were permitted to proceed to Arrivals. The applicant’s luggage was taken to another room and searched.
The applicant asked to consult a lawyer and for an opportunity to pray. At approximately 9.00 p.m., while she was praying. one of the officers spoke with her lawyer and indicated that she would be free to speak to him in fifteen minutes. When she finished praying, she was told that she could telephone her lawyer after she had been searched.
At approximately 9.23 p.m., after the applicant had been searched, she spoke with her lawyer by telephone. However, the officers made it clear that they would not delay the examination pending his arrival.
In or around 9.30 p.m. the applicant was taken to an examination room and served with a form TACT 1. The contents of the form were also read to her. In response, she informed the officers that she would only answer questions after her lawyer arrived. Thereafter, she was asked a number of questions about her family, her financial circumstances and her recent visit to France. She refused to answer most of those questions.
At around 10.00 p.m., following the conclusion of the examination, the applicant was cautioned and reported for the offence of failing to comply with her duties under Schedule 7 by refusing to answer questions. She was also told that she was “free to go”.
The applicant’s lawyer arrived at approximately 10.40 p.m.
The applicant was subsequently charged with three offences: wilfully obstructing a search under Schedule 7; assaulting a police officer contrary to section 89 of the Police Act 1996; and wilfully failing to comply with a duty under Schedule 7. The first and second charges were eventually dismissed.
On 12 December 2011 the applicant appeared before Leicester Magistrates’ Court, where she pleaded guilty to the third charge. That plea followed a ruling by the District Judge that he had no power to stay the proceedings as an abuse of process on the grounds advanced by the applicant; namely, that the powers given to the police under Schedule 7 had infringed her rights under Articles 5, 6 and 8 of the Convention and her right to freedom of movement between Member States of the European Union under Articles 20 and 21 of the Treaty on the Functioning of the European Union.
The applicant appealed to the High Court against the District Judge’s ruling.
3. The judgment of the High Court
On appeal, the applicant alleged that there had been an abuse of process based on a violation of her rights under Articles 5, 6 and 8 of the Convention and her freedom-of-movement rights. She also sought a declaration of incompatibility; or, if no declaration were to be granted, she contended that her rights under the above-mentioned Convention Articles had been infringed.
With respect to her Convention rights, she argued that the powers under Schedule 7 were in breach of Articles 5 and 8 of the Convention because they were neither sufficiently circumscribed nor subject to adequate safeguards to be “in accordance with the law”; or, in the alternative, that the interference with her Article 8 rights was not proportionate. She further argued that her rights under Article 6 had been engaged at the latest when she was obliged to answer questions exposing her to the risk of self‑incrimination without the assistance of her lawyer in attendance.
In respect of the Article 8 complaint, the court considered that the present case was distinguishable from that of Gillan and Quinton v. the United Kingdom, no. 4158/05, ECHR 2010 (extracts). Unlike the Code of Practice relating to the powers exercised under section 44 TACT (the provisions under consideration in Gillan and Quinton), in the present case the relevant Home Office Code of Practice and accompanying Practical Advice (see the section below on “Domestic Law and Practice”) afforded a measure of legal protection against arbitrary interferences by the Executive. Moreover, port and border control was very different from the power to stop and search, exercisable anywhere in the jurisdiction, and conclusions as to the arbitrariness of the latter did not readily translate to conclusions as to the former. The United Kingdom, as an “island nation”, concentrated controls at its national frontiers and the court was therefore of the view that it was to be accorded a wide margin of appreciation in carrying out these controls.
Not being constrained by the authority of Gillan and Quinton, the court went on to find that the Schedule 7 powers were sufficiently circumscribed and were therefore “in accordance with the law”. First, it noted that many exercises of Schedule 7 powers were unlikely even to engage Article 8 as the intrusions would fall below the threshold of a minimum level of seriousness. Secondly, it considered that the arguments which served to distinguish Gillan and Quinton likewise served to emphasise the important and particular position of port and border controls and the need for such powers. Thirdly, the Schedule 7 powers were applicable only to a limited category of people: namely, travellers in confined geographical areas. Furthermore, while there was no room for complacency, the statistics collated by the Independent Reviewer (see the section below on “Domestic Law and Practice”) did not suggest arbitrary overuse or misuse in respect of members of ethnic-minority communities. Fourthly, the Schedule 7 powers could only be exercised in respect of that limited category for the purpose of determining whether the person questioned appeared to be a person who was or had been concerned in the commission, preparation or instigation of acts of terrorism, and these limitations told against the powers being arbitrary. Fifthly, the Schedule 7 powers were principally an aspect of port and border control rather than of a criminal investigation and it was therefore not surprising that there was no requirement of “reasonable suspicion” for the powers to be exercised. Sixthly, the court noted that the underlying purpose of the Schedule 7 powers was to protect the public from terrorism.
In this regard, the court observed:
“The manifest importance of that purpose and the utility of the powers do not, of course and of themselves, entail the conclusion that these powers are not arbitrary and thus compatible with Art. 8. However, the exercise of Schedule 7 powers is subject to cumulative statutory limitations. Their exercise is governed by the Code. Over and above the possibility of legal challenge if misused in an individual case, they are subject to continuing review by the Independent Reviewer. The absence of a requirement of reasonable suspicion is both explicable and justifiable. For the reasons already given, we are not at all persuaded that these powers render the public vulnerable ‘...to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than for which the power was conferred’ – Lord Bingham’s test for arbitrariness, in Gillan (HL), at [34], set out above. Equally, we are not persuaded that these are unfettered powers, falling foul of the test applied in Gillan (Strasbourg), at [76] – [77], also set out above; for our part, the ‘level of precision’ of these powers (ibid) falls and falls comfortably on the right side of the line.”
The court also found that the exercise of Schedule 7 powers was proportionate. For the reasons already given, it did not accept that they were too broad. Furthermore, it noted that there was an objective justification for the focus on ports, airports and border areas, which, in the United Kingdom, provided a particularly appropriate venue for detecting, deterring and disrupting potential terrorist activity. With regard to the circumstances of the applicant’s case, the court found that the interference with her Article 8 rights had been justified. As she had been returning to the United Kingdom after visiting her husband, who was imprisoned in France for terrorism offences, she was not stopped and examined on a random basis. Moreover, the questions asked of her were rationally connected to the statutory purpose and were in no way disproportionate.
In view of the court’s conclusions in respect of Article 8, it found that the applicant’s Article 5 argument could be dealt with summarily. As the respondent accepted that there had been an interference with the applicant’s rights, and the applicant accepted that the interference was “in order to secure the fulfilment of any obligation prescribed by law”, the only issue to be determined was whether the interference was “lawful”, and the conclusions in respect of Article 8 had determined that it was.
Finally, the court considered the applicant’s argument under Article 6 of the Convention. However, it found that on the facts of her case, Article 6 was not engaged as her examination under Schedule 7 was not an inquiry preparatory to criminal proceedings but rather an inquiry related to border control with the specific public interest of safeguarding society from the risk of terrorism. Furthermore, the examination was not carried out for the purpose of obtaining admissions or evidence for use in such proceedings, and the fact that the applicant’s answers might have yielded information potentially of evidential value did not of itself suffice to engage Article 6. Even if the applicant’s rights had been engaged, the court found that there would have been no violation since it was fanciful to suppose that permission would be granted in criminal proceedings for any admissions obtained pursuant to a Schedule 7 examination to be adduced in evidence.
4. The judgment of the Supreme Court
The applicant was granted permission to appeal to the Supreme Court, which gave judgment on 22 July 2015.
(a) The opinion of the majority
(i) Article 8
With regard to the Article 8 complaint, Lord Hughes (with whom Lord Hode agreed) also considered that Gillan and Quinton (cited above) was distinguishable on its facts since the Schedule 7 power was confined to those passing through ports of entry/exit, while the section 44 power was exercisable in relation to any person anywhere in the street. Furthermore, while there was evidence that the safeguards provided in the case of section 44 were ineffective, none of these applied to the powers under Schedule 7. Having regard to the safeguards which applied in respect of Schedule 7, their Lordships were satisfied that the principle of legality was met. In particular, they had regard to the restriction of the power to those passing in and out of the country; the restriction to the statutory purpose; the restriction to specially trained and accredited police officers; the restrictions on the duration of questioning; the restrictions on the type of search; the requirement to give explanatory notice to those questioned, including a procedure for complaint; the requirement to permit consultation with a solicitor and the notification of a third party; the requirement for records to be kept; the availability of judicial review; and the continuous supervision of the Independent Reviewer.
Lords Neuberger and Dyson agreed that there were important differences between the statutory provisions and modus operandi of the Schedule 7 system and section 44 system, and that those differences established that the powers in the case at hand were more foreseeable and less arbitrary than those considered in Gillan and Quinton.
Lords Hughes and Hode further accepted that the interference with the applicant’s private life had been proportionate: the intrusion itself had been comparatively light, as it was not beyond the reasonable expectations of those who travel across the United Kingdom’s international borders, and, in view of the relevant safeguards, a fair balance could be said to have been struck between the rights of the individual and the rights of the public at large. Lords Neuberger and Dyson agreed that the appeal, insofar as it was based on proportionality, should fail, given that the interference was slight, the independent justification was convincing, the supervision impressive, the safeguards and potential benefits substantial, and no equally effective but less intrusive proposal had been forthcoming.
Lords Neuberger and Dyson added that:
“Legality is said to give rise to a problem for the powers granted under paragraph 2 of Schedule 7 because those powers can be exercised randomly. However, it is important to the effectiveness of these powers that they can be exercised in this way. Furthermore, if the power to stop and question under Schedule 7 infringes the Convention because it is exercisable randomly, the logical conclusion must be either that the valuable power must be abandoned or the power must be exercised in a far more invasive and extensive way, namely by stopping and questioning everyone passing through ports and borders. The former alternative would be unfortunate in terms of deterring and hindering terrorism, whereas the latter alternative would seem to put proportionality and legality in irreconcilable tension.”
(ii) Article 5
Although Lords Hughes, Hode, Neuberger and Dyson agreed with the Divisional Court that the comments made in relation to safeguards in the context of Article 8 also applied in respect of Article 5, in their view it did not follow that the power of detention was automatically justified. The level of intrusion occasioned by detention for up to six hours (a proposed amendment to Schedule 7 would reduce the maximum period of detention from nine hours to six hours) was of a different order to the intrusion occasioned by compulsory question and search, and safeguards which were adequate for one would not necessarily be sufficient for the other. Furthermore, it did not follow that the fair balance between the rights of the individual and the interest of the public would fall in the same place. However, although their Lordships expressed doubts about whether detention for as long as six hours could ever be justified, on the facts of the present case they found that, to the extent that there was any deprivation of liberty, it was clear that it was for no longer than necessary to complete the process and therefore there had been no breach of Article 5.
(iii) Article 6 § 1
In respect of the applicant’s complaint under Article 6, Lords Hughes, Hode, Neuberger and Dyson accepted that the privilege against self‑incrimination did not apply where a person was being questioned pursuant to Schedule 7. However, their Lordships considered port questioning and search under Schedule 7 to be separate from a criminal investigation and, since the applicant had been at no time a defendant to a criminal charge, no question of a breach of her right to a fair trial could arise. In reaching this conclusion, they noted that any use in a criminal prosecution of answers obtained under compulsion would breach Article 6 of the Convention; consequently, Schedule 7 material could never be adduced in a subsequent criminal trial (unless the prosecution concerned the failure to comply with the Schedule 7 duty).
(b) Lord Kerr’s dissenting opinion
(i) Legality
Lord Kerr disagreed with the majority that the Schedule 7 powers were “in accordance with the law”. In fact, he considered that comparison with the section 44 powers illustrated the greater ambit of the Schedule 7 powers. In particular, he observed that no authorisation was required for an examining officer to have resort to the Schedule 7 powers; the examining officer did not have to consider the use of those powers expedient for the prevention of acts of terrorism; there was no geographical or temporal limitation on the use of those powers, other than that they were to be used at a port of entry into or exit from the United Kingdom; and there was no provision for their automatic lapse, nor was there any question of their renewed authorisation being subject to confirmation. Furthermore, Lord Kerr noted that certain features were common to both sets of powers: the width of the powers was similar (in both instances there was no requirement of either reasonable or even subjective suspicion) and challenges to their use on conventional judicial review grounds faced the same difficulties identified in Gillan and Quinton (namely, if an examining officer was not required to have a reasonable suspicion, how was the proportionality of the exercise of his powers to be reviewed?).
In response to the majority’s reliance on the fact that Schedule 7 powers could only be used in respect of persons passing through ports of entry or exit, Lord Kerr made two points. First, being subjected to border controls, such as the requirement to provide proof of identity and entitlement to enter, was entirely different from being required to answer questions about one’s movements and activities and facing criminal sanction for refusing. Secondly, and more importantly, the fact that people were accustomed to intrusion moving through ports of entry or exit did not bear on the question of whether the circumstances in which the Schedule 7 powers could be exercised were too widely drawn to satisfy the test of “in accordance with the law”. In other words, an unfettered power which might be arbitrarily or capriciously used did not become legal just because people generally did not take exception to its use.
Furthermore, given that there were 245 million passenger movements through United Kingdom ports every year, the fact that the Schedule 7 power was used sparingly could have no bearing on its legality. A power on which there are insufficient legal constraints does not become legal simply because those who may have resort to it exercise self-restraint. It was the potential reach of the power – and not its actual use – which had to be judged. In any case, although the percentage of travellers subjected to the use of the power was small, in absolute terms the number was not inconsequential, since on average five to seven people each day were examined for more than an hour.
Finally, Lord Kerr expressed concern about the potential for arbitrary and discriminatory exercise of the power since there was no clearly obvious means of policing the requirement that persons should not be stopped and questioned just because of their ethnic background or religion. In any case, the Code of Practice contemplated that ethnic origin or religious adherence could be at least one of the reasons for exercising the power, just so long as it was not the sole ground. Lord Kerr considered that the fact that the legislation authorised the use of a coercive power, at least partly, on grounds of race and religion should be starkly confronted since it permitted direct discrimination, which was entirely at odds with the notion of an enlightened, pluralistic society all of whose members were treated equally.
(ii) Proportionality
Lord Kerr was not persuaded that the interference with the applicant’s rights under Articles 5 and 8 was “necessary”. In this regard, he noted that there was no evidence that a suspicion-less power to stop, detain, search and question was the only way to achieve the goal of combatting terrorism.
(iii) Privilege against self-incrimination
Lord Kerr considered the requirement that a person questioned under Schedule 7 must answer on pain of prosecution for failing to do so to be in breach of that person’s common law privilege against self-incrimination and therefore incompatible with Article 6 of the Convention. In Lord Kerr’s opinion, it was inescapable that there was a real and appreciable risk of prosecution if the answers to the questions asked proved to be self‑incriminating, and the fact that the applicant in the present case was not suspected of being a terrorist was nothing to the point. If she was asked questions designed to establish whether she appeared to be a terrorist, the potential of her answers to incriminate her if they were of an inculpatory character was indisputable. This remained the case even if those self‑incriminating answers could not be adduced in evidence, as they might prompt enquiry which could lead to the obtaining of independent evidence.
B. Relevant domestic law and practice
1. Terrorism Act 2000 (“TACT”)
Section 40(1)(b) of TACT defines a “terrorist” so as to include a person who has been concerned in the commission, preparation or instigation of acts of terrorism.
Schedule 7 to TACT, which is headed “Port and Border Controls”, provides as relevant:
“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 in 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).
3. An examining officer may question a person who is in the border area for the purpose of determining whether his presence in the area is connected with his entering or leaving 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).
...
6.—(1) For the purposes of exercising a power under paragraph 2 or 3 an examining officer may—
(a) stop a person or vehicle;
(b) detain a person.
...
(3) Where a person is detained under this paragraph the provisions of Part I of Schedule 8 (treatment) shall apply.
(4) A person detained under this paragraph shall (unless detained under any other power) be released not later than the end of the period of nine hours beginning with the time when his examination begins.
...
Offences
18.—(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.
(2) A person guilty of an offence under this paragraph shall be liable on summary conviction to—
(a) imprisonment for a term not exceeding three months,
(b) a fine not exceeding level 4 on the standard scale, or
(c) both.”
Pursuant to Schedule 8 a person detained under Schedule 7 acquires rights which he or she did not have prior to detention (for example, to have a named person informed, and to consult a solicitor) but also obligations (for example, to give fingerprints, non-intimate and intimate DNA samples).
2. Home Office (2009) Examining Officers under the Terrorism Act 2000 Code of Practice (“the Code”)
The Code, which is issued pursuant to paragraph 6(1) of Schedule 14 to TACT, contains detailed provisions as to the exercise by examining officers of their functions under that legislation. It provides, as relevant:
“9. The purpose of questioning and associated powers is to determine whether a person appears to be someone who is or has been concerned in the commission, preparation or instigation of acts of terrorism. The powers, which are additional to the powers of arrest under the Act, should not be used for any other purpose.
10. An examining officer may question a person whether or not he suspects that the person is or has been concerned in the commission, preparation or instigation of terrorism and may stop that person for the purposes of determining whether this appears to be the case. Examining officers should therefore make every reasonable effort to exercise the powers in such a way as to minimise causing embarrassment or offence to a person who is being questioned.”
The accompanying Guidance Notes underline that the powers must be used “proportionately, “reasonably, with respect and without unlawful discrimination”. Furthermore, “[e]xamining officers must take particular care to ensure that the selection of persons for examination is not solely based on their perceived ethnic background or religion”.
The Guidance Notes further provide:
“Although the exercise of Schedule 7 powers is not based on an examining officer having any suspicion against any individual, the powers should not be exercised arbitrarily. A examining officer’s decision to exercise their Schedule 7 powers at ports must be based on the threat posed by the various terrorist groups active in and outside the United Kingdom. When deciding whether to exercise their Schedule 7 powers, examining officers should base their decisions on a number of considerations, including factors such as:known or suspected sources of terrorism;individuals or groups whose current or past involvement in acts or threats of terrorism is known or suspected and supporters or sponsors of such activity who are known or suspected;
...
Selections for examinations should be based on informed considerations such as those outlined above and must be in connection with the threat posed by the various terrorist groups active in and outside the United Kingdom. A person’s perceived ethnic background or religion must not be used alone or in combination with each other as the sole reason for selecting the person for examination.”
3. 2009 National Policing Improvement (“NPIA”) Practice Advice (“the Practice Advice”)
The Foreword to the Practice Advice provides:
“Special Branch ports officers carry a significant responsibility as part of the police contribution to ensuring National Security. It is vital that they are equipped with powers that enable them to carry out their role effectively and efficiently.
Schedule 7 ... provides these officers with unique powers to examine people who pass through the United Kingdom’s borders. It is essential that they are applied professionally so that the police maintain the confidence of all sections of the public. Any misuse of these powers could have a far-reaching negative impact on police community relations and hinder progress made in support of the Government’s counter-terrorism strategy.”
4. 2012 report of the Independent Reviewer of Terrorism Legislation (“the 2012 report”)
The 2012 report provided the following figures concerning the frequency of the exercise of Schedule 7 powers:
“In the year to 31 March 2011, over the UK as a whole:
(a) There was a total of 85,423 Schedule 7 examinations, 20% down on 2009/10.
(b) 73,909 of those examinations were on people, and 11,514 on unaccompanied freight.
(c) 2,291 people (3% of those examined - a similar percentage to 2009/10) were kept for over an hour.
(d) 915 people were detained after examination (1% of those examined, up from 486 in 2009/10).
(e) 769 people had biometric samples taken.
(f) There were 31 counter-terrorism or national security-related arrests. However 25 of those were in a single force area, reflecting that force’s policy (since amended) as regards the action they take for those withholding or giving of false information during an examination.
(g) 101 cash seizures by the police thought to relate to counter-terrorism were made, amounting in total to £844,709, mostly at airports.
These figures have to be set against the numbers of passengers travelling through UK airports (213 million), UK seaports (22 million) and UK international rail ports (9.5 million) during the year. In total, only 0.03% of passengers were examined under Schedule 7 in 2010/11.”
With regard to the ethnic origin of the persons stopped, the report summarised the data in tabular form:
2010/11
White
Black
Asian
Other
Mixed or not stated
Examined
46%
8%
26%
16%
4%
Examined > 1 hour
14%
15%
45%
20%
6%
Detained
8%
21%
45%
21%
5%
Biometrics
7%
21%
46%
20%
6%
The report continued:
“No ethnicity data are collected for port travellers generally. It may well be that the proportion of ethnic minorities among those using UK ports and airports for travel is higher than the proportion in the UK population as a whole. It is most unlikely however that white people are in a minority among travellers. Detentions (plainly) and examinations (almost certainly) are thus imposed on members of minority ethnic communities – particularly those of Asian and other (including North African) ethnicity – to a greater extent than their presence in the travelling population would seem to warrant.
That fact alone does not mean that examinations and detentions are misdirected. As I argued in my last annual report (paras 9.14-9.21), Schedule 7 should not be used (as section 44 stop and search was from time to time used) in order to produce a racial balance in the statistics: that would be the antithesis of intelligence-led policing. The proportionate application of Schedule 7 is achieved by matching its application to the terrorist threat, rather than to the population as a whole.
There is however no room for complacency. The ethnic breakdown of the terrorist threat is hard to pin down: but ... [e]ven in Great Britain ... white people constitute approximately a quarter of those arrested and charged with terrorist offences – a proportion that would no doubt rise considerably if Northern Ireland data were included. ...
The ethnicity figures provide, in themselves, no basis for criticism of the police. They do however underline the need for vigilance, particularly when some minority communities are understandably sensitive about the application of Schedule 7. It is important for all involved with the application of Schedule 7 to remember that:
(a) perceived ethnic background or religion should not be used, alone or in combination with each other, as the sole reason for selecting a person for examination;
(b) UK terrorists are of all colours: a substantial proportion of them (even outside Northern Ireland) are white; and that
(c) apparently innocuous decisions (for example, to check the plane from Pakistan rather than the plane from Canada) may reflect unconscious racial bias.”
Although the report indicated that certain groups (most notably Muslims) felt that they were being singled out, between 1 July 2011 and 23 May 2012 only twenty complaints had been received.
In concluding that the utility of Schedule 7 powers was not in doubt, the report noted:
“Schedule 7 examinations have certainly been instrumental, first of all, in securing evidence which assists in the conviction of terrorists. That evidence does not take the form of answers given in interview (which because of the compulsion to answer would almost certainly be inadmissible in any criminal trial) but rather consists of physical possessions or the contents of mobile phones, laptops and pen drives.
It is fair to say that the majority of examinations which have led to convictions were intelligence-led rather than based simply on risk factors, intuition or the copper’s nose. Indeed, despite having made the necessary enquiries, I have not been able to identify from the police any case of a Schedule 7 examination leading directly to arrest followed by conviction in which the initial stop was not prompted by intelligence of some kind.
...
Secondly, Schedule 7 examinations have been useful in yielding intelligence about the terrorist threat. Sometimes words spoken in interview, though not themselves admissible as evidence, may start a train of enquiry that leads to a prosecution. Of great importance, however, is intelligence of a more indirect kind – which may come from intelligence-led stops or from stops on the basis of risk factors. Schedule 7 examinations are perhaps most prized by the police and security services for their ability to contribute to a rich picture of the terrorist threat to the United Kingdom and UK interests abroad.
...
Thirdly, Schedule 7 examinations may assist disruption or deterrence. Young, nervous or peripheral members of terrorist networks can sometimes be dissuaded from plans e.g. to travel abroad for training by the realisation – communicated by a port stop – that the police have an idea of who they are and what they are about.
...
Finally, a Schedule 7 examination – once it has been completed, and this has been made clear to the person examined – may serve as an opportunity for the identification of those who may agree to be recruited as informants.”
COMPLAINTS
The applicant claims that the exercise of Schedule 7 powers breached her rights under Articles 5, 6 and 8 of the Convention.
QUESTIONS TO THE PARTIES
1. (a) Did the questioning and search of the applicant on 4 May 2011 give rise to an interference with the right guaranteed to her under Article 8 of the Convention?
(b) If so, was that interference justified under paragraph 2 of Article 8? In particular,
- are the powers under Schedule 7 to the Terrorism Act 2000 sufficiently circumscribed to be “in accordance with the law”?
- was a fair balance struck between the applicant’s individual right and the interests referred to in paragraph 2, including the rights, notably the Convention rights to life and to bodily security, of other members of the community?
2. (a) Was the applicant deprived of her liberty within the meaning of Article 5 § 1 of the Convention?
(b) If so, did the deprivation of liberty give rise to a violation of Article 5 § 1 of the Convention? More particularly,
- was it “in accordance with a procedure prescribed by law”?
- did it come within, and comply with, the requirements of one of the sub‑paragraphs of Article 5§1, notably sub-paragraph (b) (see, for example, McVeigh and Others v. the United Kingdom, nos. 8022/77, 8025/77 and 8027/77, 25 Decisions and Reports, p. 15; and Vasileva v. Denmark, no. 52792/99, 25 September 2003)?
3. Did the applicant’s questioning pursuant to Schedule 7 to the Terrorism Act 2000 engage her right to a fair trial in the determination of a criminal charge against her, as guaranteed by Article 6 of the Convention? If so, has there been a breach of that Article on account of her questioning on 4 May 2011?
Full & Egal Universal Law Academy