Rabbani v Director of Public Prosecutions

For a prosecution under Terrorism Act 2000, Schedule 7, the prosecution need not routinely prove the factual intelligence or reasoning that prompted a lawful stop. Further evidence is required only where the legality of the stop is properly put in issue. A random stop and an intelligence-led stop are not subject to different presumptions of legality. The court cannot create a closed material procedure in criminal proceedings where Parliament has not provided one. Challenges to the adequacy of Schedule 7 safeguards or its Code of Practice generally belong in judicial review or compatibility proceedings, not an appeal against conviction. A refusal to provide access required under Schedule 7 may constitute wilful obstruction even where confidentiality is asserted only after the refusal and arrest.

The appellant was convicted by the Chief Magistrate at Westminster Magistrates’ Court of wilfully obstructing or seeking to frustrate a search or examination under paragraph 18(1)(c) of Schedule 7 to the Terrorism Act 2000. During a stop at Heathrow Airport, he deliberately refused to provide the PIN and password for his mobile phone and laptop.

By case stated, he challenged the conviction on three grounds: whether the prosecution had to prove the legality of the stop; whether the Schedule 7 Code of Practice adequately protected confidential material; and whether the offence could be committed before an independent inspection procedure for confidential material existed.

1. Appeal dismissed. The Chief Magistrate made no error of law.
2. The prosecution was not required, as a routine ingredient of the offence, to adduce evidence explaining why an intelligence-led stop had been made. The officers gave basic evidence that the powers were exercised lawfully, by authorised officers and for the statutory purpose. No specific factor had been advanced which called the legality of the stop into question. There was no logical basis for treating a random stop as lawful but requiring additional proof for a stop based on intelligence.
3. The proposed closed hearing and appointment of special counsel were misconceived. R v H concerned exceptional special-counsel arrangements in public-interest-immunity hearings. Al Rawi and Others v The Security Service and Others established that a closed material procedure could not be created by the court under its inherent jurisdiction; such a procedure required parliamentary provision.
4. The appeal was concerned with the conviction, not judicial review of the Schedule 7 powers, a declaration of incompatibility, or the adequacy of policy and guidance. The reasoning in R (Miranda) v Secretary of State for the Home Department was directed narrowly to journalistic material and Article 10. It did not establish that identical safeguards were required for every category of confidential, excluded or special-procedure material.
5. The appellant had not told the examining officers that he was protecting confidential information belonging to others, or that the devices contained excluded or special-procedure material. At the relevant time he relied on his own privacy. His later explanation, and the absence of an independent inspection arrangement, did not prevent the offence from being complete.

• High Court (Administrative Court): appeal by case stated dismissed. The conviction by the Chief Magistrate at Westminster Magistrates’ Court was upheld.