Beghal v Director of Public Prosecutions

The suspicionless questioning and search powers at ports under Schedule 7 to the Terrorism Act 2000 are compatible with article 8 of the Convention. Their defined purpose, limited geographical setting, operational safeguards, independent supervision and counter-terrorism value satisfy legality and proportionality.

A short restriction of movement reasonably necessary to complete an examination does not ordinarily violate article 5. Compelled answers cannot lawfully be used against the traveller in a later criminal trial. The common law privilege against self-incrimination is excluded by necessary implication, while article 6 applies only after a person has effectively been charged.

The appellant was stopped at an airport and questioned under Schedule 7 to the Terrorism Act 2000. She refused to answer most questions and pleaded guilty to wilfully failing to comply with the Schedule, contrary to paragraph 18.

The Divisional Court rejected her challenge in [2013] EWHC 2573 (Admin), reported at [2014] QB 607. Her appeal concerned whether the compulsory questioning, search and associated powers were compatible with articles 5, 6 and 8 of the European Convention on Human Rights, including the privilege against self-incrimination.

1. By a majority, the appeal was dismissed. Lord Hughes, with whom Lord Hodge agreed, held that compulsory port questioning and search interfered with private life but satisfied article 8. Lord Neuberger and Lord Dyson agreed in separate reasons. Lord Kerr dissented.

2. The powers were in accordance with law. Legality required accessible and foreseeable rules together with safeguards against arbitrary use. A requirement of reasonable suspicion was not indispensable. Relevant safeguards included confinement to ports and the statutory counter-terrorism purpose, trained officers, time and search limits, notice, access to legal advice, record-keeping, judicial review and continuous supervision by the Independent Reviewer. The street-search regime condemned in Gillan was materially different.

3. The questioning and search powers were proportionate. Preventing and detecting terrorism was an exceptionally important objective, and the powers were rationally connected to it. A reasonable-suspicion threshold would substantially impair intelligence gathering, deterrence and the detection of previously unknown persons. Given the comparatively limited intrusion at borders and the safeguards governing selection and operation, the regime struck a fair balance.

4. A restriction of movement reasonably required to complete questioning and search would ordinarily fall short of deprivation of liberty. Even if the appellant had been deprived of liberty, the period lasted no longer than necessary and therefore did not breach article 5. Lord Hughes added that detention extending beyond what was reasonably needed to complete the examination would require objectively demonstrated grounds, such as reasonable suspicion.

5. The common law privilege against self-incrimination was excluded by necessary implication because its application would largely defeat Schedule 7's information-gathering purpose. In any event, compulsory answers presented no real and appreciable risk of admissible prosecutorial use. Section 78 of the Police and Criminal Evidence Act 1984, reinforced by article 6, made their exclusion effectively inevitable.

6. Article 6 was not engaged during a preliminary Schedule 7 examination because the appellant had not effectively been charged and the examination was not a criminal investigation. Later use at trial of answers obtained under legal compulsion would violate the right to a fair trial.

7. Lord Hughes observed that prolonged retention of copied electronic data might require objectively established suspicion and effective destruction safeguards. No definitive ruling was made because the issue did not arise on the facts.

8. Lord Kerr would have allowed the appeal and declared Schedule 7 incompatible with articles 5, 6 and 8. He considered the suspicionless powers insufficiently constrained, disproportionate and incompatible with the common law privilege.

1. United Kingdom Supreme Court: By a majority, dismissed the appeal in [2015] UKSC 49.

2. Divisional Court of the High Court: Rejected the challenge to the conviction in [2013] EWHC 2573 (Admin), reported at [2014] QB 607.

3. District Judge: Refused an application to stay the prosecution as an abuse of process. The appellant then pleaded guilty to wilfully failing to answer questions under Schedule 7 to the Terrorism Act 2000 and received a conditional discharge.