HAKAN CIFCI v CROWN PROSECUTION SERVICE

The Divisional Court considered an appeal by way of case stated from a conviction under paragraph 18(1)(c) of Schedule 7 to the Terrorism Act 2000 for wilfully obstructing a Schedule 7 examination by refusing to provide device PINs and passwords. The court held that where evidence arises that a protected characteristic (here a political belief) may have influenced the decision to stop, the Crown must satisfy the court to the criminal standard that the stop did not involve unlawful discrimination under the Equality Act 2010 (sections 10 and 13). The Chief Magistrate erred in treating the question of discrimination as a single binary issue subsumed into whether the stop was for the Schedule 7 statutory purpose (paras 2(1), 5 and s.40 TA 2000), but on the facts the Divisional Court was satisfied that the questions asked by the examining officer were properly directed to determining whether the appellant fell within the definition of terrorist and that there was no unlawful discrimination. The appeal was therefore dismissed.

This appeal by way of case stated arose from the appellant's conviction at Westminster Magistrates' Court for wilfully obstructing a Schedule 7 search or examination by refusing to disclose PINs and passwords for electronic devices seized during a stop at St Pancras. The Chief Magistrate convicted after finding the stop had been carried out by accredited officers for the statutory purpose in Sch.7 (to determine whether a person appears to be a terrorist) and that the stop was not discriminatory. The appellant argued that questions about his political beliefs (support for Kurdish self-determination) demonstrated a real possibility that his protected political belief had a significant influence on the decision to stop him and relied on Nagarajan to say discrimination may be made out where a protected characteristic is a "significant influence".

The High Court considered two framed questions from the case stated: (i) whether the Chief Magistrate was correct to treat any issue of discrimination as to be decided within the single question of whether the stop served the statutory purpose (relying on Rabbani); and (ii) if so, whether the Chief Magistrate could properly find on the evidence that there was no unlawful discrimination. The court emphasised that Sch.7 powers are intrusive and must be exercised lawfully and proportionately, and that unlawful discrimination under the Equality Act 2010 will render a stop unlawful for Schedule 7 purposes.

The court held (i) the Chief Magistrate was wrong in law to treat the matter as a binary question: the court must ask separately whether (A) the stop was for the Schedule 7 statutory purpose and (B) whether the appellant's protected characteristic had a significant influence on the decision to stop. It accepted that Rabbani established that where no issue of discrimination is raised, basic evidence of accreditation and statutory purpose may suffice, but Rabbani did not govern cases where evidence suggests possible unlawful discrimination. The court applied Nagarajan's "significant influence" formulation to the second question.

On the facts the court found the officer's questions about political beliefs were properly directed to the statutory enquiry whether the appellant might be a terrorist under s.40 TA 2000, and although the Chief Magistrate had erred in his legal analysis, he would nonetheless permissibly have found that the Crown satisfied the criminal standard that there was no unlawful discrimination. A separate submission about nondisclosure of additional material was rejected as not being appropriately raised in the case stated appeal and speculative.

Appeal dismissed. The Chief Magistrate erred in law by treating discrimination as necessarily subsumed within the single question of whether the stop was for the statutory purpose under Schedule 7. The court held that two separate questions must be asked: (1) whether the stop was for the Schedule 7 statutory purpose and (2) whether the appellant’s protected characteristic had a significant influence on the decision to stop. Notwithstanding that error, the Divisional Court concluded on the evidence that the officer’s questions were properly directed to the statutory purpose and that the Crown had satisfied the court to the criminal standard there was no unlawful discrimination; the conviction therefore stood.

Conviction in Westminster Magistrates' Court (Chief Magistrate Paul Goldspring) for an offence under paragraph 18(1)(c) of Schedule 7 to the Terrorism Act 2000; a case stated was produced under section 111 Magistrates' Courts Act 1980 asking two questions of law. The Divisional Court (Nicola Davies LJ and Jay J) heard the appeal and handed down judgment at [2022] EWHC 1676 (Admin).