In January 2011, Mrs. Sylvie Beghal and her three children were returning from a trip to Paris, where they had been visiting her husband, a French national in custody “in relation to terrorist offences”. As she was passing through East Midlands Airport, the police said they needed to speak to her in order to establish whether or not she was a person concerned in the commission, preparation or instigation of acts of terrorist. She was not arrested and she was told that the police did not presently suspect her of being a terrorist. She was searched. Although she was given permission to speak to her lawyer on the telephone she was told that the questions could not await the lawyer’s arrival.

Mrs Beghal was questioned about her reasons for travel; where she had stayed; whether she had travelled beyond France; who was collecting her from the airport; whether she had ever been arrested; how she had paid for the flights; how long she had lived in England; the details of her parents and siblings; her relationship with her husband; whether she was employed; her nationality and whether she was carrying a cell phone. The questioning lasted for less than half an hour. The whole process, from her being stopped to being told that she could go, lasted for around an hour and forty-five minutes. 

Mrs Beghal refused to answer most of the questions. As a result she was charged with the offense of willful failure to comply with the requirement to answer questions under Schedule 7, paragraph 2 of the Terrorism Act 2000. She pleaded guilty and was sentenced to be conditionally discharged. In her appeal against her conviction, she argued that Schedule 7, paragraph 2 is incompatible with article 8 (right to respect for private/family life) and article 5 (right to liberty) of the European Convention on Human Rights. She also claimed that she had been wrongfully denied a privilege against self-incrimination and sought to rely on the common law and article 6 in that regard.

Schedule 7, paragraph 2 creates a power to stop and question people passing through ports/borders to see whether they appear to be terrorists as defined, i.e. whether they are or have been concerned in the commission, preparation or instigation of acts of terrorism.

Last week the Supreme Court gave judgment in her appeal. They dismissed it. The Court considered the lawfulness of Schedule 7 primarily by reference to the two key powers engaged in her case: (1) the power of port questioning and search and (2) the power of detention. In addition they considered (3) whether Mrs Beghal had been wrongfully denied a privilege against self-incrimination. A summary of their conclusions is as follows.

(1) The power of port questioning and search

  • Since the respondents accepted that questioning and search under compulsion constitutes an interference with the private life of the person questioned, the Court focussed on whether the interference was justified under article 8(2), i.e. they focussed on whether it was (a) in accordance with the law and (b) a proportionate means to a legitimate end.
  • By a 4:1 majority, the Court held that there was no breach of article 8. They took some pains to distinguish Mrs Beghal’s case from the earlier case of Gillan v UK (2010) 50 EHRR 1105 in which the European Court of Human Rights held that the stop and search powers under the Terrorism Act 2000 violated article 8.
  • Lord Hughes gave the main judgment. Lord Hodge agreed with him whilst Lords Neuberger and Dyson made some additional observations in a separate judgment. Lord Kerr dissented.
  • As to (a): the Supreme Court considered not only whether there was a lawful domestic basis for the power (such that the law was adequately accessible to the public and its operation was sufficiently foreseeable) but also whether the law contained sufficient safeguards to avoid the risk that the power would be arbitrarily exercised. They held that the port questioning power was lawful since there were sufficient safeguards against its arbitrary use, primarily in the form of judicial review and the continuous supervision of the Independent Reviewer.
  • As to (b): the Supreme Court assessed proportionality by reference to three questions: is the objective sufficiently important to justify a limitation upon a fundamental right; is the measure rationally connected to the objective and could a less intrusive measure have been adopted? They concluded that the power was proportionate: the level of intrusion into the individual’s privacy was “comparatively light” and was not an unreasonable burden to expect citizens to bear in the interests of preventing/detecting terrorism.
  • In relation to both (a) and (b), and even though Mrs Beghal raised no separate claim of discrimination, the Supreme Court considered the potential for discriminatory application of the powers. They relied upon a June 2012 report of the Independent Reviewer for the conclusion that the risk was “not a substantial one”. However they suggested that the 2014 Code of Practice, which relates to the exercise of powers under the Terrorism Act 2000, needed to be amended to make clear “that neither ethnic background nor religion can (separately or together) be the sole criterion for selection, unless present in association with known terrorist profiles or with other relevant characteristics, such as age, mode of travel, destination or origin.”

(2) The power of detention

  • By a 4:1 majority, the Supreme Court held that there was no breach of article 5. Lord Kerr dissented.
  • The majority observed that it was not clear whether Mrs Beghal had been deprived of her liberty for an hour and forty five minutes, as opposed to suffering a restriction on her freedom of movement (which is not protected by article 5).
  • However, on the assumption that article 5 was engaged, they held that it was for no longer than was necessary for the completion of the process and was, therefore, proportionate and lawful.

(3) The privilege against self-incrimination

  • Two related questions were considered: (a) whether Mrs Beghal could rely on the common law privilege against self-incrimination when questioned under Schedule 7 and (b) whether Mrs Beghal was, in any event, provided with the privilege by article 6, ECHR.
  • Once again, the Court was split 4:1, with Lord Kerr dissenting.
  • As to (a): after observing that the common law privilege could be excluded by statute, either expressly or by necessary implication, the majority said the privilege did not apply to Schedule 7. This was since the “reality” was that those powers would be “rendered very largely nugatory” if the privilege applied and since the risk of prosecution based on answers to Schedule 7 questioning “is not a real and appreciable one”. Thus, the Supreme Court held that there was no wrongful denial of the common law privilege against self-incrimination.
  • As to (b): the Supreme Court held that article 6 had not been engaged since the trigger for the privilege (being “charged” with a criminal offence, as that word is understood in ECHR case law) was absent in Mrs Beghal’s case. Therefore, there was no article 6 breach.