Beghal v Director of Public Prosecutions

Schedule 7 to the Terrorism Act 2000 is compatible with Arts 5, 6 and 8 ECHR and EU free-movement rights. Its port and border examination powers are sufficiently confined by their statutory purpose, geographical application, the Code of Practice and continuing review. The absence of a reasonable-suspicion requirement does not make them arbitrary or disproportionate. An examination conducted to determine whether a traveller appears concerned in terrorism is a border-control inquiry, not ordinarily a pre-trial criminal investigation, so Art 6 is not engaged. Even if Art 6 were engaged, the safeguards, particularly the discretion under s 78 PACE, would prevent a violation in the generality of cases.

The appellant, a French national resident in the United Kingdom, was examined at East Midlands Airport under Schedule 7 to the Terrorism Act 2000 after returning from France. She declined to answer questions without her solicitor present and was prosecuted for wilfully failing to comply with a Schedule 7 duty. She pleaded guilty after the magistrates’ court declined to stay the proceedings. By case stated, she challenged the compatibility of the Schedule 7 powers and their exercise with Arts 5, 6 and 8 ECHR and Arts 20 and 21 TFEU. The central issues were whether the powers were arbitrary or disproportionate, and whether compulsory questioning engaged or violated the privilege against self-incrimination.

1. Appeal dismissed. The Schedule 7 powers were lawful and compatible with Arts 5 and 8 ECHR. The interference with the appellant’s rights in the individual circumstances was justified.
2. The relevant lawfulness question is whether public officials are protected from exercising power arbitrarily. Schedule 7 applies only to specified categories of travellers in ports, airports and border areas, for the purpose of determining whether they appear to have been concerned in terrorism. The Code of Practice, Practice Advice, statutory limits and independent review provide safeguards against arbitrary use. The absence of reasonable suspicion is justified by the border-control context.
3. Gillan v United Kingdom (2010) 50 EHRR 45 was distinguishable. The Strasbourg decision concerned general stop-and-search powers exercisable anywhere, whereas Schedule 7 concerned the materially different context of port and border control. The court was bound domestically by R (Gillan) v Commissioner of Police of the Metropolis [2006] UKHL 12 if the cases were indistinguishable.
4. The proportionality inquiry required consideration of the importance of the objective, rational connection, less intrusive alternatives and fair balance. The powers had a rational connection with detecting, deterring and disrupting international terrorism. Their confinement to ports, airports and border areas was objectively justified and proportionate.
5. The questioning in this case was rationally connected with the statutory purpose. The appellant’s Art 5 complaint failed because the interference was lawful and was directed to securing compliance with an obligation prescribed by law. Her free-movement rights added no independent issue.
6. On the primary analysis, Art 6 was not engaged. The examination was not preparatory to criminal proceedings, there was no sufficiently firm suspicion or intention to institute such proceedings, and the appellant was not arrested or treated as a terrorist suspect.
7. Alternatively, if Art 6 applied, the serious compulsion was counterbalanced by safeguards, including the TACT 1 notice, access to a solicitor by telephone and the operation of s 78 PACE. Admissions obtained under compulsion would almost certainly be excluded, and separate trials could protect against prejudice involving a co-defendant.
8. The court expressed an obiter view that legislation expressly barring the admission of Schedule 7 answers in later criminal trials would provide useful clarification, but dismissed the appeal.

The judgment was a first-instance decision of the Administrative Court on an appeal by case stated from Leicester Magistrates’ Court. The appellant had pleaded guilty after the District Judge refused to stay the proceedings.