Beghal v Director of Public Prosecutions

The appeal concerned the compatibility of Schedule 7 to the Terrorism Act 2000 (as amended) with the European Convention on Human Rights, in particular articles 8 (private life), 5 (liberty) and 6 (privilege against self-incrimination). The court analysed the statutory power to stop, question, search and detain at ports and borders (Schedule 7 paragraph 2) and the specific offence for wilful failure to answer (Schedule 7 paragraph 18).

The majority held that the Schedule 7 questioning and search power interferes with article 8 but is "in accordance with the law" and proportionate: it is limited to border contexts, directed to the statutory purpose (section 40(1)(b)), governed by a Code of Practice and subject to oversight by an Independent Reviewer and judicial review. Detention ancillary to questioning can be justified when no more than necessary, but extended detention requires objectively reasonable suspicion. The court held there was no breach of article 5 on the facts and that answers obtained under Schedule 7 are unlikely to be admissible in criminal trials because of section 78 of PACE 1984 and article 6, so the common law privilege against self-incrimination is effectively neutralised in practice for Schedule 7 purposes.

The appeal was therefore dismissed by the majority, with a dissenting judgment (Lord Kerr) contending that the powers permit arbitrary or discriminatory use, that they are not "in accordance with the law" in the Gillan sense, and that compulsion to answer breaches the privilege against self-incrimination and article 6.

Background and parties: The appellant, Mrs Beghal, was questioned at East Midlands Airport under Schedule 7 to the Terrorism Act 2000 and refused to answer most questions. She was charged under paragraph 18 of Schedule 7 with wilful failure to answer and pleaded guilty; she was conditionally discharged. The appellant challenged the compatibility of Schedule 7 with the ECHR. The Secretary of State for the Home Department, the Equality and Human Rights Commission, Liberty and other interveners made submissions.

Procedural posture: The matter reached the Supreme Court on appeal from the Administrative Court (see [2013] EWHC 2573 (Admin)); the Divisional Court and other courts below had addressed aspects of the legal issues (references appear in the judgment).

Nature of the claim / relief sought: The appellant sought to attack the lawfulness under the ECHR of Schedule 7 powers, arguing they were not "in accordance with the law" (legality) and were disproportionate under article 8, that detention under Schedule 7 interfered with article 5, and that compelled answers engaged the privilege against self-incrimination and article 6.

Issues framed by the court: (i) Whether Schedule 7 questioning and search are "in accordance with the law" and proportionate for article 8 purposes; (ii) whether detention ancillary to Schedule 7 engages and breaches article 5; (iii) whether inspection, copying and retention of electronic data under paragraph 11/11A is compatible with article 8; and (iv) whether the common law privilege against self-incrimination or article 6 precludes compulsion to answer under Schedule 7.

Court’s reasoning: The majority accepted the statutory purpose (to determine whether a person appears to fall within section 40(1)(b)) and recognised the utility of Schedule 7 for prevention, intelligence and disruption of terrorism. On legality the majority distinguished Gillan v United Kingdom on factual and structural grounds: Schedule 7 is confined to ports, targeted to a statutory purpose, subject to a Code of Practice, record-keeping, Independent Reviewer oversight and judicial review, and has shown declining, supervised use. On proportionality it applied the four-part test (importance of the objective; rational connection; whether less intrusive measures exist; fair balance) and concluded that the interference is relatively limited at borders and justified by the public interest in countering terrorism. On detention the court held short restraint to allow completion of questioning is generally permissible and there was no article 5 breach on the facts; longer detention beyond what is necessary requires objectively demonstrated suspicion. On electronic data the court recognised serious intrusion from retention and invited further scrutiny if those issues arise directly. On self-incrimination the majority held that either Parliament intended the privilege to yield to Schedule 7’s public‑interest information gathering or, in practice, section 78 PACE and article 6 render use of compelled answers in prosecution inadmissible so that there was no real and appreciable risk of prosecution; thus article 6 was not breached in the appellant’s case.

Additional points: The majority emphasised the role of the Independent Reviewer and Code of Practice as safeguards and noted recent statutory amendments (Anti-Social Behaviour, Crime and Policing Act 2014) reducing detention limits and expanding safeguards. Lord Kerr dissented, concluding that the powers are too broad and allow arbitrary or discriminatory use, fail the legality test as explained in Gillan, and that compulsion to answer breaches the privilege against self-incrimination and article 6.

Appeal dismissed by majority. The majority held that Schedule 7 questioning and search are interferences with article 8 but are "in accordance with the law" and proportionate given their narrow border context, statutory purpose (to determine whether a person appears to fall within section 40(1)(b) of the Terrorism Act 2000), the Code of Practice, Independent Reviewer oversight and judicial remedies; detention for the time reasonably necessary to complete Schedule 7 inquiries did not breach article 5 on the facts, and compelled answers are unlikely to be admissible in criminal trials because of section 78 PACE and article 6 considerations. Lord Kerr dissented and would have declared Schedule 7 incompatible with articles 5, 6 and 8 on grounds of over-breadth, potential arbitrariness and infringement of privilege against self-incrimination.

On appeal from the Administrative Court: [2013] EWHC 2573 (Admin). The Divisional Court and lower courts considered related issues (see references in the judgment, including a Divisional Court citation at [2014] QB 607). The Supreme Court heard the appeal and delivered a majority judgment dismissing the challenge and a dissent by Lord Kerr.