Facts of the Beghal case
In a decision handed down a few weeks ago in Beghal v United Kingdom (App. no.4755/16), the Grand Chamber of the European Court of Human Rights (ECtHR) found that the UK’s anti-terrorism regime of port and border controls, as they existed in 2011, were in violation of the European Convention on Human Rights (ECHR). The applicant, a French national resident in the UK, was stopped pursuant to these control provisions when returning from a visit to her husband, who was in custody in France in relation to terrorist offences. She was taken to a room where she was searched and questioned, without being formally detained. She refused to answer questions in the absence of her lawyer who did not arrive until after she had been released. She was subsequently convicted of the offence of failing to comply with her duty under the control provisions. She challenged her treatment as a breach of her rights under Article 5 (right to liberty), Article 6 (right to a fair trial) and Article 8 (right to privacy) of the ECHR. She lost in the High Court and the Supreme Court, before proceeding to the ECtHR.
The port and border controls were first introduced by the Prevention of Terrorism (Temporary Provisions) Act 1974 in respect of persons travelling either way between Ireland (North and South) and Britain. They were highly controversial for many decades, as they were considered to be used arbitrarily and oppressively against Irish people. The current controls, which are even broader and more intrusive than the 1974 version, are provided by Schedules 7 and 8 of the Terrorism Act 2000 (as amended). They are equally controversial as it is widely believed that they are applied arbitrarily and disproportionately against people of Asian ethnicity. Although amendments have been effected in 2014 and 2019, the ECtHR in Beghal considered the regime as it was at the time of her stop and examination in 2011. Before the decision in Beghal was handed down, an amended Code of Practice incorporating the 2019 changes was put out for consultation until 5th April.
Schedule 7 empowers a police officer (among others) to stop, question, search and detain a person passing through a UK port or border for the purpose of determining whether she may be, or has been, concerned in any act of terrorism. Critically, no prior authorisation or suspicion is required. The officer can exercise the powers at random. The person stopped is obliged to answer relevant questions, although she has no right of access to a solicitor unless formally detained (see below). A search of the person (and vehicle where relevant) can extend to goods and articles, including a mobile phone or laptop. Indeed, the downloading of the contents of mobile phones and other digital devices is a regular feature of these searches. Articles and goods can also be retained for examination, and copies made of material in them, in certain circumstances. Legally privileged or journalist materials should not be retained, but materials can be examined to determine whether they come within either of those categories. Articles or materials containing legally privileged or journalist materials can also be retained and copied to separate out the protected material.
It is an offence, punishable by a custodial sentence, for a person to refuse to cooperate with an examination under these provisions. At the time of the Beghal examination, there was no express prohibition on the fruits of the compulsory questioning being used against the person in any subsequent criminal proceedings for a terrorism-related offence. This has since been changed by amendments effected in 2019, so that such answers cannot normally be used against her in respect of offences other than failing to cooperate with the examination.
At the time of the applicant’s stop and examination, there was no specified time limits on the duration of the examination; although any follow-on detention could not last longer than nine hours. Pursuant to the 2014 amendments, a person stopped must be formally detained if the examination lasts beyond one hour. The detention regime, as provided for by Schedule 8, stipulates that it can last for up to 6 hours and is subject to periodic review. The detained person can be measured, photographed and otherwise subjected to reasonable steps to ascertain her identity. She can also be fingerprinted, and a DNA sample taken, without her consent. She can be questioned further, but has a qualified right of access to a solicitor. The questioning should not normally commence until after the arrival of the requested solicitor. Prior to the 2019 amendments, a senior police officer could issue a direction to the effect that the consultation with the solicitor in an individual case must be held within the sight and hearing of a police officer of at least the rank of inspector. That has been replaced in the 2019 amendments by a provision empowering a senior police officer to deny the detained person her personal choice of solicitor.
Article 8 ECHR
Article 8 ECHR protects a person’s right to her private and family life, her home and her correspondence. However, it is not an absolute right. It can be restricted by measures which are in accordance with law and are necessary in a democratic society in the interests of national security or for the prevention of crime etc. It was accepted in Beghal that the application of the Schedule 7 stop and examination power interferes with the applicant’s right to privacy. The key issue was whether it was “in accordance with law”.
Obviously, Schedule 7 has the appearance of law insofar as it is enacted as an integral part of the Terrorism Act 2000. That, however, is not sufficient in itself to satisfy the requirement of being “in accordance with law”. The firmly established jurisprudence of the ECtHR also requires the substance of the enacted law to be compatible with the rule of law. Accordingly, it must be adequately accessible and foreseeable, and formulated with sufficient precision to enable the individual to regulate her conduct in compliance. Where the legislative provisions in question confer discretion on an executive authority (such as a police officer) to encroach on the fundamental rights of an individual, those provisions must prescribe the scope of that discretion with sufficient clarity. It would be contrary to the rule of law to grant a police officer an unfettered discretion which could be used to subject the individual’s rights to arbitrary interference.
The Schedule 7 power of stop and examination raises an acute issue of compliance with the rule of law, as it can be exercised randomly against any person without the need for a prior suspicion that the person had an association with acts of terrorism. In its previous decision in Gillan and Quinton v UK (2010), the Court had identified the absence of a “reasonable suspicion” requirement as a critical factor in finding that the police power to stop and search under section 44 of the Terrorism Act was in breach of Article 8 ECHR. In Beghal, by comparison, it acknowledged the importance of the reasonable suspicion standard, but went on to state that its presence is not always essential to avoid arbitrariness in the exercise of the Schedule 7 powers. The Court will look at the scheme as a whole in order to determine whether those powers can be exercised in an arbitrary manner contrary to the rule of law and Article 8.
The ECtHR’s jurisprudence affords States a wide margin of appreciation in matters relating to national security. Citing the reports of the UK’s independent reviewer of terrorism legislation, the Court noted that the Schedule 7 powers were useful in combating the terrorist threat and they were not being abused. It also took note of the published guidance on the use of the powers. This states, among other things, that they must be used proportionately, without unfair discrimination and in a manner that is informed by reference to terrorist indicators. Nevertheless, the Court found that the scope and intrusive nature of the powers were not sufficiently balanced by appropriate protections for the person affected.
A primary concern for the Court was that a person could be stopped and compulsorily examined without reasonable suspicion, with no access to a lawyer, for up to nine hours (as it was at the time). In particular, the lack of a “reasonable suspicion” requirement made it difficult for a person affected to seek judicial review of the exercise of the power. This weakness was not offset by the oversight provided by the independent reviewer. While the Court acknowledged the general value of such oversight, it pointed out that the reviewer was not in a position to assess the lawfulness of the purpose of a stop in any individual case. The net effect was that there were insufficient safeguards to protect against the exceptionally broad discretion being used arbitrarily. Accordingly, the Schedule 7 regime was not “in accordance with law” and was in breach of Article 8 ECHR.
Article 6 ECHR
The Court also addressed the Article 6 (right to a fair trial) aspect. Article 6 ECHR states, in part, “[i]n the determination of .. any criminal charge against him, everyone is entitled to a fair and public hearing .. by an independent and impartial tribunal established by law”. It is firmly established in the jurisprudence of the Court that the protections encompassed by the right to a fair trial are not confined to the treatment of a person after he has been charged with a criminal offence. They can extend back to the point where a person is officially notified by a competent authority (such as the police) of an allegation that he has committed a criminal offence, or from the point at which his situation has been substantially affected by actions taken by the authorities as a result of a suspicion against him. So, the Article 6 protections can apply from the point of arrest. Arguably, they can also apply from an entry, search and seizure or even a stop and search which occurred as integral part of preliminary steps leading to a criminal charge and trial.
The applicant argued that by being subjected to the stop and compulsory examination pursuant to Schedule 7, she was exposed to the risk of her coerced answers being used against her in any possible subsequent prosecution for a terrorism related offence. A key problem, however, is that she was never actually suspected of a criminal offence when stopped and examined pursuant to Schedule 7. The defect that strengthened her case significantly under Article 8 worked against her in claiming the protection of Article 6. In stopping and examining her, the police were merely checking whether she might have been concerned in any acts of terrorism. They had not reached the point at which they were actively investigating her for being so concerned.
The Court did not exclude the possibility that exercise of the Schedule 7 power could trigger the protection of Article 6 in an appropriate case. It concluded, however, that this was not such a case. The applicant had neither been arrested nor charged with any terrorist related offence. The mere fact that she was stopped and examined did not suggest that she was suspected of any such offence. Nor was she questioned specifically about her involvement in any such offence. Accordingly, there was no basis for triggering Article 6 in her case.
As noted above, the ECtHR in Beghal considered the Schedule 7 regime as it was at the time of the relevant stop and examination in 2011. It is arguable, therefore, that the reforms effected in 2014 and 2019 have cured the defects. Particularly significant in that context is the fact that preliminary questioning can only last up to one hour. Where a person is detained beyond that time, she acquires protections such as the limited right of access to a solicitor. It is also notable that the number of Schedule 7 port stops have decreased steadily from 60,000 in 2012 to under 12,000 in 2018, while the number of follow-on detentions in that period have increased from about 600 to almost 1,850. This pattern could be interpreted as the result of better targeting, fuelled perhaps by the use of the compulsorily acquired passenger manifest data (in the case of persons travelling by plane or ferry). It remains the case, however, that people of Asian ethnicity are much more likely to be stopped than their white counterparts. In the same period, the proportion of the former has increased while the proportion of the latter has decreased.
A strong argument can be made that the reforms have not gone far enough to satisfy ECHR requirements. A key factor here is that parliament has stopped short of introducing the need for the stop and detention powers to be predicated on a prior suspicion in respect of the person concerned. This is despite the repeated recommendations of the independent reviewer of terrorism legislation (and others) for such a reform. Although the ECtHR appears to have retreated somewhat from the need for a reasonable suspicion requirement in these situations, it has also linked any such departure to the need for compensating safeguards for the persons affected. In particular, it has emphasised the importance of the person being able to challenge the justification for the exercise of the powers in her case. This is severely weakened by the absence of a prior suspicion requirement. Moreover, the Independent Reviewer does not provide an adequate compensating safeguard as he cannot review the lawfulness of the stop in any individual case. It may well be, therefore, that the reforms are still not sufficient to satisfy the rule of law and Article 8 requirements.
Finally, it is worth noting that the 2019 Act introduces a parallel regime of examination and detention in respect of travellers at UK ports or borders for the purpose of checking whether they are, or have been, engaged in “hostile activity”. This is largely a response to the ‘Salisbury poisoning’ event. Hostile activity is defined as an act carried out on behalf of (or in the interests of) another State and which threatens national security or the economic well-being of the UK in a manner relevant to national security interests, or which is an act of serious crime. Critically, as with Schedules 7 and 8, the exercise of these powers is not predicated on any prior suspicion against the person stopped or detained.