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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Beghal v Director of Public Prosecutions [2015] UKSC 49 (22 July 2015) URL: https://www.bailii.org/uk/cases/UKSC/2015/49.html Cite as: [2015] UKSC 49, [2015] 2 Cr App R 34, [2016] AC 88, [2015] HRLR 15, [2015] WLR(D) 330, [2015] 3 WLR 344, [2016] 1 All ER 483 |
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Trinity Term
[2015] UKSC 49
On appeal from: [2013] EWCA Civ 2573
Beghal (Appellant) v Director of Public Prosecutions (Respondent)
before
Lord Neuberger, President
Lord Kerr
Lord Dyson
Lord Hughes
Lord Hodge
JUDGMENT GIVEN ON
Heard on 12 and 13 November 2014
Appellant Matthew Ryder QC Steven Powles Edward Craven (Instructed by Abrahams Law) |
Respondent John McGuiness QC Duncan Atkinson (Instructed by Crown Prosecution Service Appeals Unit) |
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Intervener (Secretary of State for the Home Department) James Eadie QC Jonathan Hall QC (Instructed by Treasury Solicitor) |
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Intervener (Equality and Human Rights Commission) Dan Squires (Instructed by Leigh Day) |
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Intervener (Liberty) Alex Bailin QC Iain Steele (Instructed by Liberty) |
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Intervener (Islamic Human Rights Commission, Muslim Council Britain and Cage Advocacy UK Limited)) Thomas De La Mare QC Ravi Mehta (Instructed by Leigh Day) |
LORD HUGHES: (with whom Lord Hodge agrees)
The statutory power
"2(1) An examining officer may question a person to whom this paragraph applies for the purpose of determining whether he appears to be a person falling within section 40(1)(b).
(2) This paragraph applies to a person if -
(a) he is at a port or in the border area, and
(b) the examining officer believes that the person's presence at the port or in the area is connected with his entering or leaving Great Britain or Northern Ireland or his travelling by air within Great Britain or within Northern Ireland.
(3) This paragraph also applies to a person on a ship or aircraft which has arrived at any place in Great Britain or Northern Ireland (whether from within or outside Great Britain or Northern Ireland).
(4) An examining officer may exercise his powers under this paragraph whether or not he has grounds for suspecting that a person falls within section 40(1)(b)."
"(1) In this Part 'terrorist' means a person who -
(a) has committed an offence under any of sections 11, 12, 15 to 18, 54 and 56 to 63, or
(b) is or has been concerned in the commission, preparation or instigation of acts of terrorism."
So the statutory purpose for which the questions may be asked is for determining whether the person appears either to be, or to have been, concerned in the commission, preparation or instigation of acts of terrorism.
(i) to stop; under paragraph 6 the officer may stop the person in order to question him;
(ii) to require production of documents carried; under paragraph 5 the person questioned must give the officer any information in his possession which the officer requests, provide his passport or other document verifying his identity, and hand over any document requested if he has it with him;
(iii) to search; under paragraph 8 the person may be searched, an intimate search is not permitted and a strip search is allowed only when there are reasonable grounds for suspecting concealment of something which may be evidence that the individual falls within section 40(1)(b), and then only on the authority of a second and senior officer;
(iv) to copy and retain material; paragraph 11 (and now paragraph 11A (inserted by the 2014 Act)) contain provisions for the retention of material handed over or found; this includes power to copy and retain electronic data contained on any device carried, the detail of which it will be necessary to consider later;
(v) to detain; under paragraph 6 (and now paragraph 6A (inserted by the 2014 Act)) the officer may detain the person, for the purpose of exercising the questioning power under paragraph 2; by paragraph 6A he may not continue the questioning beyond one hour without invoking the more formal rules which attend detention; these are found in separate provisions in both Schedule 7 and Schedule 8 and include regular reviews by a different officer senior to the examining officer; it is necessary to note that at the time of the appellant's questioning this power to detain was limited to nine hours, but now it is limited to six hours (the latter including the first hour).
"(1) A person commits an offence if he -
(a) wilfully fails to comply with a duty imposed under or by virtue of this Schedule;
(b) wilfully contravenes a prohibition imposed under or by virtue of this Schedule; or
(c) wilfully obstructs, or seeks to frustrate, a search or examination under or by virtue of this Schedule."
The penalty available is a fine and/or imprisonment with a maximum of three months, together of course with the generally available lesser penalties of discharge or community orders; an amendment passed in 2003 to increase the maximum imprisonment to 51 weeks has never been brought into force.
The appellant's case
History of the power
(i) searches were confined to non-intimate searches, with the restrictions on strip searches described above introduced (para 8(3) to (7));
(ii) the power to take blood and urine samples was removed;
(iii) a person detained was ensured the right to have a third person informed, when detained at the port as well as if taken to a police station (Schedule 8 paragraph 6(1))
(iv) similarly all persons detained were ensured the right to consult a solicitor, and the questioning is now to be postponed until his arrival unless that would prejudice the inquiry being made (Schedule 8 paragraph 7A);
(v) A new requirement for periodic review of detention by a senior officer was introduced (Schedule 8, Part 1A); and
(vi) the power to retain documents or data was supplemented by a specific power to copy them, with the same limit to seven days or during a criminal or deportation inquiry.
The Code of Practice
(i) examining officers must be specially trained and authorised for the purpose and must normally be police officers; an immigration or customs officer is in effect to be used only exceptionally and when specifically designated by the Secretary of State after consultation with the chief officer of police on both his training and the proposal for his designation (paras 8 to 13);
(ii) officers are advised that it will often be helpful to ask initial screening questions without compulsion and that this may avoid the need for the exercise of Schedule 7 powers (para 20);
(iii) emphasis is placed upon the need to avoid discrimination and/or arbitrary action, by selecting persons only for the statutory purpose; selection must not be based solely upon the ethnic background or religion of the individual but rather must be informed by considerations relating to the threat of terrorism (paras 18-19);
(iv) persons questioned must be informed clearly of the statutory basis for what is being done and of the procedure for feedback or complaint (para 22);
(v) if a person questioned but not detained asks to notify a third party and/or to consult a solicitor, these requests should be granted (paras 41-42);
(vi) records must be kept of the fact and duration of each examination and detention and, from April 2015 when the equipment will be in place, examinations of those in detention must be audio-recorded (paras 43 and 66-68);
(vii) guidance is given as to when it may be appropriate to exercise the power of detention; essentially this will be when detention is made necessary by lack of co-operation; officers are instructed that if questioning is to last longer than an hour, formal detention must take place before the hour elapses (paras 45-46).
Use of the power
The independent reviewer: recent reports
(a) in providing evidence which assists in the conviction of terrorists;
(b) in furnishing intelligence about the terrorist threat;
(c) in disrupting and deterring terrorist activity; and, as an ancillary benefit;
(d) in enabling the recruitment of informants.
"If Schedule 7 is being skilfully used, therefore, one would expect its exercise to be ethnically "proportionate" not to the UK population, nor even to the airport-using population, but rather to the terrorist population that travels through UK ports.
I have no reason to believe that Schedule 7 powers are exercised in a racially discriminatory manner. The so-called 'disproportionality' identified by the EHRC is not evidence (and not suggested to be evidence) of this. What matters is that Schedule 7 should be operated responsively to the terrorist threat. The ethnicity figures are not indicative of a failure to do this."
(a) that detention should be permitted only when a senior officer is satisfied that there are (subjectively judged) grounds for suspicion that the person falls within section 40(1)(b);
(b) that a similar condition should govern the copying and retention of data downloaded from electronic devices; and
(c) that a statutory bar be introduced on the admission of anything said in a Schedule 7 interview in any subsequent criminal trial.
The different powers
Port questioning and search: article 8
In accordance with the law
"The court recalls its well established case-law that the wording 'in accordance with the law' requires the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention and inherent in the object and purpose of article 8. The law must thus be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual if need be with appropriate advice to regulate his conduct. For domestic law to meet these requirements, it must afford adequate legal protection against arbitrariness and accordingly indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise (see Malone v United Kingdom 1984 7 EHRR 14, paras 66-68; Rotaru v Romania (2000) 8 BHRC 449, para 55; and Amann v Switzerland (2000) 30 EHRR 843, para 56)."
"Of still further concern is the breadth of the discretion conferred on the individual police officer. The officer is obliged, in carrying out the search, to comply with the terms of the Code. However, the Code governs essentially the mode in which the stop and search is carried out, rather than providing any restriction on the officer's decision to stop and search. That decision is, as the House of Lords made clear, one based exclusively on the "hunch" or "professional intuition" of the officer concerned. Not only is it unnecessary for him to demonstrate the existence of any reasonable suspicion; he is not required even subjectively to suspect anything about the person stopped and searched. The sole proviso is that the search must be for the purpose of looking for articles which could be used in connection with terrorism, a very wide category which could cover many articles commonly carried by people in the streets. Provided the person concerned is stopped for the purpose of searching for such articles, the police officer does not even have to have grounds for suspecting the presence of such articles. As noted by Lord Brown of Eaton-under-Heywood in the House of Lords [at para 74], the stop-and-search power provided for by section 44, 'radically ... departs from our traditional understanding of the limits of police power'."
"10.27 As an island nation it has long been the British way to concentrate controls at its national frontiers, and to maintain a correspondingly greater freedom from random checks inland. This is not always the practice adopted in continental countries which have long land frontiers. But our geography gives us a unique opportunity to target checks where they are likely to be most effective; namely at the 'choke points' provided by our ports and airports. That, of course, is where immigration and customs controls are also to be found. But it is only by virtue of the PTA [ie the then Prevention of Terrorism (Temporary Provisions) Act 1989] that the police have any power to stop and question people passing through ports. Immigration checks on EU nationals having in most eases been reduced to a simple passport check, only a separate police check is likely to identify a terrorist suspect if he is a national of an EU country."
Lord Lloyd added at para 10.47 that the port powers were among the less controversial of the provisions in the statute and that very few of those who submitted evidence to him took exception to them. Those who did were comprised chiefly of those who were regular travellers to and from Ireland, who might at that time experience frequent questioning, together with pilots who wished to use airfields which were not authorised and port operators who wished to speed up the movement of travellers through their domains.
"People do not expect to be able to cross international borders free from scrutiny. Consequently, travellers seeking to cross national boundaries fully expect to be subject to a screening process. This process will typically require the production of proper identification and travel documentation and involve a search process "
Of course, the powers there under consideration differed from the present, as did the grounds for their exercise. The relevance of the cases is the recognition that public expectations are different at borders and that the intrusion represented by checks, questioning and searches is less than it is elsewhere.
(a) Although there was an authorisation procedure for designation of a particular area, it depended only upon the senior police officer determining that such designation was "expedient", which, unlike a test of necessity, betokened no assessment of proportionality (para 80).
(b) Although authorisation required the approval of the Secretary of State, he had no power to alter the geographical scope of it, nor was there any evidence that he ever altered the time limit (para 80).
(c) Much more significantly, for some years there had been, in the Metropolitan Police district, continuous rolling authorisations for the whole of the area, with each 28 day period being succeeded immediately by another (para 81). The result was that in the whole of Greater London any person might be subject to stop and search anywhere in the streets at any time. The same did not apply in other cities even when there might be specific reason for heightened terrorist alert (para 40). There was thus every sign that the authorisations were not responsive to particular calls for them, as they were clearly intended to be. This misuse of authorisations had been identified by the then Independent Reviewer, Lord Carlile, in 2002. It contrasted with the position at the time of Lord Lloyd's inquiry six years earlier, when he had reported (at para 10.22) that the power was used "with great discretion".
(d) The evidence recorded by the Independent Reviewer showed a rapidly mushrooming use of the power of stop and search, from about 33,000 in 2004/2005 to triple that (117,000) in 2007/2008 (para 83).
(e) The Independent Reviewer was an additional safeguard but although he had been calling for some years for the power to be used less, this had not been heeded (para 82).
(f) The Independent Reviewer had, moreover, found that "poor and unnecessary use" of section 44 abounded, and he reported evidence of cases where the person stopped was so obviously far from any known terrorist profile that there was, realistically, not the slightest possibility that he or she was a terrorist, and there was no other reason for the stop (para 84). He had concluded that the evidence showed that section 44 was in some cases being used unacceptably as an instrument to aid non-terrorism policing (para 43).
(g) There was evidence of the section 44 power being used in a discriminatory fashion against black and Asian persons and indeed of a practice developing of stopping white people for no other reason than to produce greater racial balance in the statistics (para 85).
(h) There was a real risk of the section 44 power being misused against demonstrators and protestors in breach of articles 10 or 11 (para 85).
(i) the restriction to those passing into and out of the country;
(ii) the restriction to the statutory purpose;
(iii) the restriction to specially trained and accredited police officers;
(iv) the restrictions on the duration of questioning;
(v) the restrictions on the type of search;
(vi) the requirement to give explanatory notice to those questioned, including procedure for complaint;
(vii) the requirement to permit consultation with a solicitor and the notification of a third party;
(viii) the requirement for records to be kept;
(ix) the availability of judicial review; the contention of the appellant and of Liberty that judicial review would be ineffective is overstated; judicial review is available if bad faith or collateral purpose is alleged, and also via the principle of legitimate expectation where a breach of the Code of Practice or of the several restrictions listed above is in issue; courts are well used to requiring police officers to justify their actions and to drawing the correct inference if there is material to do so; use of the power for a collateral purpose, such as to investigate a non-terrorism suspected offence, would be likely to become apparent, as it did in the case of section 44 see para 41(f), (g) and (h) above.
(x) the continuous supervision of the Independent Reviewer is of the first importance; it very clearly amounts to an informed, realistic and effective monitoring of the exercise of the powers and it results in highly influential recommendations for both practice and rule change where needed.
Proportionality
(i) is the objective sufficiently important to justify limitation upon a fundamental right?
(ii) is the measure rationally connected to the objective?
(iii) could a less intrusive measure have been adopted?
(iv) has a fair balance been struck between individual rights and the interests of the community?
Detention: article 5
Inspection, copying and retention of electronic data
Self-incrimination and article 6
(a) could the appellant avail herself of the common law privilege against self-incrimination when questioned under Schedule 7 or is that privilege inapplicable either because it is by necessary inference abrogated by the statute or because in the case of a person questioned under its powers no sufficient risk existed of the answers being used in criminal proceedings against either that person or her spouse?
and
(b) was the appellant in any event provided with a privilege against self-incrimination by article 6 of the ECHR?
In the Divisional Court the appellant's case seems to have been argued almost entirely upon the second of these questions, but the first was fully raised in this court and should be addressed first.
"Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual."
Conclusion
LORD NEUBERGER AND LORD DYSON:
"[w]hilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice."
In the same case, the Grand Chamber said at para 59 that lawfulness "implies qualitative requirements in the domestic law such as foreseeability and, generally, an absence of arbitrariness".
LORD KERR: (dissenting)
Legality
"76. the words, 'in accordance with the law' require the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention and inherent in the object and purpose of article 8. The law must thus be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual - if need be with appropriate advice - to regulate his conduct.
77. For domestic law to meet these requirements it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise. The level of precision required of domestic legislation - which cannot in any case provide for every eventuality - depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed" (emphasis supplied)
"... First, an authorisation under section 44(1) or (2) may be given only if the person giving it considers (and, it goes without saying, reasonably considers) it expedient 'for the prevention of acts of terrorism'. The authorisation must be directed to that overriding objective. Secondly, the authorisation may be given only by a very senior police officer. Thirdly, the authorisation cannot extend beyond the boundary of a police force area, and need not extend so far. Fourthly, the authorisation is limited to a period of 28 days, and need not be for so long. Fifthly, the authorisation must be reported to the Secretary of State forthwith. Sixthly, the authorisation lapses after 48 hours if not confirmed by the Secretary of State. Seventhly, the Secretary of State may abbreviate the term of an authorisation, or cancel it with effect from a specified time. Eighthly, a renewed authorisation is subject to the same confirmation procedure. Ninthly, the powers conferred on a constable by an authorisation under sections 44(1) or (2) may only be exercised to search for articles of a kind which could be used in connection with terrorism. Tenthly, Parliament made provision in section 126 for reports on the working of the Act to be made to it at least once a year, which have in the event been made with commendable thoroughness, fairness and expertise by Lord Carlile of Berriew QC. Lastly, it is clear that any misuse of the power to authorise or confirm or search will expose the authorising officer, the Secretary of State or the constable, as the case may be, to corrective legal action."
"80. The court notes at the outset that the senior police officer referred to in section 44(4) of the Act is empowered to authorise any constable in uniform to stop and search a pedestrian in any area specified by him within his jurisdiction if he, 'considers it expedient for the prevention of acts of terrorism'. However, 'expedient' means no more than 'advantageous' or 'helpful'. There is no requirement at the authorisation stage that the stop-and-search power be considered 'necessary' and therefore no requirement of any assessment of the proportionality of the measure. The authorisation is subject to confirmation by the Secretary of State within 48 hours. The Secretary of State may not alter the geographical coverage of an authorisation and although he or she can refuse confirmation or substitute an earlier time of expiry, it appears that in practice this has never been done. Although the exercise of the powers of authorisation and confirmation is subject to judicial review, the width of the statutory powers is such that applicants face formidable obstacles in showing that any authorisation and confirmation are ultra vires or an abuse of power.
81. The authorisation must be limited in time to 28 days, but it is renewable. It cannot extend beyond the boundary of the police force area and may be limited geographically within that boundary. However, many police force areas in the United Kingdom cover extensive regions with concentrated populations. The Metropolitan Police Force Area, where the applicants were stopped and searched, extends to all of Greater London. The failure of the temporal and geographical restrictions provided by Parliament to act as any real check on the issuing of authorisations by the executive are demonstrated by the fact that an authorisation for the Metropolitan Police District has been continuously renewed in a "rolling programme" since the powers were first granted.
82. An additional safeguard is provided by the independent reviewer. However, his powers are confined to reporting on the general operation of the statutory provisions and he has no right to cancel or alter authorisations, despite the fact that in every report from May 2006 onwards he has expressed the clear view that, 'section 44 could be used less and I expect it to be used less'."
Utility
"75. The court has accepted in past cases that prior judicial control, although desirable in principle where there is to be interference with a right guaranteed by article 8, may not always be feasible in practice; in such cases, it may be dispensed with provided that sufficient other safeguards are in place (see, mutatis mutandis, Klass v Germany (1979-80) 2 EHRR 214, para 56; and Rotaru v Romania, (2000) 8 BHRC 449 para 59). In certain cases, an aggregate of non-judicial remedies may replace judicial control (see, mutatis mutandis, Leander v Sweden (1987) 9 EHRR 433, paras 64-65).
76. In the Netherlands, all pertinent legal texts are in the public domain (compare and contrast para 30 of Gillan). Before the public prosecutor can order police to carry out a search operation, a prior order designating the area concerned must be given by an administrative authority of the municipality, the Burgomaster. That order must in turn be based on a byelaw adopted by an elected representative body, the local council, which has powers to investigate the use made by the Burgomaster of his or her authority (see paras 34-36 above).
77. Review of a designation order, once it has been given, is available in the form of an objection to the Burgomaster, followed if necessary by an appeal to the Regional Court and a further appeal to the Administrative Jurisdiction Division of the Council of State (see para 40 above).
78. The criminal courts have a responsibility of their own to examine the lawfulness of the order and the scope of the authority of the official who gave it. It is a defence for anyone charged with failing to comply with a search order issued by or on behalf of the public prosecutor to state that the order was not lawfully given; the criminal court must answer it in its judgment (see para 41 above)."
The privilege against self-incrimination and article 6
Articles 5 and 8
(a) is the legislative objective sufficiently important to justify limiting a fundamental right?;
(b) are the measures which have been designed to meet it rationally connected to it?;
(c) are they no more than are necessary to accomplish it?; and
(d) do they strike a fair balance between the rights of the individual and the interests of the community?
Conclusion