Terrorism Act questioning and search did not breach individual’s human rights, UK Supreme Court rules

The UK Supreme Court dismissed the appeal by Sylvie Beghal, who brought proceedings arguing that the powers used by officers under Schedule 7 of the Terrorism Act 2000 breached her Article 5 right to liberty, Article 6 privilege against self-incrimination and Article 8 right to respect for private and family life, under the European Convention on Human Rights (ECHR).

President of the Court Lord Neuberger, Lord Kerr, Lord Dyson, Lord Hughes and Lord Hodge heard that the appellant, a French national, arrived at East Midlands Airport on 4 January 2011 with her three children following a visit to her husband.

On arrival Mrs Beghal was stopped by police and, although not formally detained, arrested or suspected of being a terrorist, was told they needed to speak to her to establish whether she was involved in terrorist acts.

Officers from Leicestershire Constabulary subsequently conducted an examination of the appellant, exercising the power under Paragraph 2 of Schedule 7 of the Terrorism Act 2000, which deals with questioning individuals at ports or borders “for the purpose of determining whether he appears to be ”.

Mrs Beghal sent her two eldest children to the arrivals gate and asked for a lawyer – with whom she spoke on the phone.

However, the officers made clear that they would not delay the examination pending the arrival of her lawyer and she was searched and in the absence of a solicitor.

During less than half-an-hour of questioning she was asked, amongst other questions, about her relationship with her husband, her reasons for travel, where she had stayed and whether she had travelled beyond France.

She refused to answer most of the questions and was charged with the offence of wilful failure to comply with the requirement to answer questions.

Mrs Beghal later pleaded guilty to this offence and her sentence was a conditional discharge, but she brought proceedings arguing that the Schedule 7 powers breached her rights under Articles 5, 6 and 8 of the ECHR.

The Divisional Court dismissed her claims, prompting her appeal to the Supreme Court, which dismissed the appeal by a majority of 4-1.

Delivering the lead judgment, Lord Hughes said: “There was, rightly, no dispute before us that Schedule 7 questioning and search under compulsion constitutes an interference with the private life of a person questioned. The issue here, accordingly, is whether the interference by questioning and search under compulsion is justified under article 8(2). In order for it to be justified, it must be (1) in accordance with the law and (2) a proportionate means to a legitimate end.”

The court held that the power was “in accordance with the law” as there were “sufficient safeguards” and controls against overbroad and arbitrary use of the power, and that the power was also “proportionate”.

The court also considered that power to detain for six hours fell within Article 5(1)(b) ECHR and involved a greater level of intrusion than questioning and search, but that observed that restricting an individual’s movement in order to exercise the questioning and search power – and for no more than is necessary – “will usually not constitute a deprivation of liberty”.

“Even if it does, it will if it is for no more than is necessary to complete the process, be justified,” Lord Hughes added.

He continued: “To the extent that there was any deprivation of liberty in the present case, it seems clear that it was for no longer than was necessary for the completion of the process. There was no requirement to attend a police station. Accordingly, there was in this case no breach of article 5.”

The court further held that Article 6 had no application as port questioning and search was not part of a criminal investigation and the individual is not a person charged for the purposes of the privilege against self-incrimination.

However, Lord Kerr, dissenting, found that the Schedule 7 powers are “incompatible” with Articles 5, 6 and 8 ECHR as they are not “in accordance with the law”.