HAKAN CIFCI v CROWN PROSECUTION SERVICE

The statutory purpose of a Schedule 7 stop and examination and the question of unlawful discrimination are distinct. A stop may have the statutory purpose of determining whether a person appears to be involved in terrorism, yet still be unlawful if a protected characteristic had a significant influence on the decision to stop. Where evidence raises a credible issue of discrimination, the prosecution must satisfy the criminal court so that it is sure that the stop was not unlawfully discriminatory. Legitimate political belief is protected, but questions about political beliefs may properly be asked where they are directed to determining whether the belief or associated conduct indicates terrorism.

The appellant was convicted by the Chief Magistrate of wilfully obstructing a Schedule 7 examination by refusing to provide PINs and passwords for electronic devices. The High Court considered an appeal by way of case stated concerning the relationship between the statutory purpose of Schedule 7 to the Terrorism Act 2000 and unlawful discrimination based on political belief under the Equality Act 2010.

The Chief Magistrate had treated those issues as a binary question and concluded that the stop was lawful because it was undertaken for the statutory purpose. The central issues were whether that interpretation of Rabbani v Director of Public Prosecutions was correct and whether, on the evidence, the stop was discriminatory.

The appeal was dismissed. Although the Chief Magistrate had erred in law by treating statutory purpose and discrimination as a binary choice, the High Court held that the conclusion reached on the evidence was open to him.

1. Lawfulness of Schedule 7 powers. The powers are broad and intrusive. A conviction under para 18(1)(c) of Sch.7 requires a lawful search or examination. Lawfulness requires both compliance with the statutory purpose in para 2(1) and compliance with the prohibition on unlawful discrimination under the Equality Act 2010.
2. Separate questions. The court must ask: first, whether the purpose of the stop was the statutory purpose; and secondly, whether the appellant’s protected characteristic had a significant influence on the decision to stop. The questions are separate and both must be addressed.
3. Burden and standard. Once evidence raises the issue of unlawful discrimination, the Crown must satisfy the court, to the criminal standard, that there was no unlawful discrimination. The applicable approach is that stated in Nagarajan: a protected characteristic need not be the sole or principal reason; a significant influence is sufficient.
4. Political belief and terrorism. Legitimate political belief is protected, and it must be distinguished from terrorism. However, an officer may ask nuanced questions about political beliefs to determine whether they are legitimate or are directly relevant to a link with terrorism. The questions asked here were properly directed to determining whether the appellant was a terrorist within s.40 of the Terrorism Act 2000, and therefore supported the statutory purpose.
5. Rabbani was distinguishable on the facts and did not determine the prosecution’s obligations where evidence raised unlawful discrimination. The disclosure challenge could not properly be pursued through this case-stated appeal under s.111(1) of the Magistrates’ Courts Act 1980, and the suggested effect of further disclosure was speculative.

1. High Court (Queen's Bench Division), Divisional Court: appeal by way of case stated dismissed. The court held that the Chief Magistrate had misinterpreted Rabbani but was entitled to conclude that the stop was lawful and non-discriminatory on the evidence.
2. Westminster Magistrates’ Court: the appellant was convicted of wilfully obstructing a Schedule 7 examination.