April 18, 2019
By John Ip, University of Auckland Faculty of Law
On 28 February 2019, the First Section Chamber of the European Court of Human Rights (ECtHR) delivered its decision in Beghal v United Kingdom, a de facto appeal from a 2015 UK Supreme Court decision concerning the question of whether Schedule 7 to the Terrorism Act 2000 was incompatible with various rights under the European Convention on Human Rights. The ECtHR concluded unanimously that the applicant’s right to respect for private and family life under Article 8 had been infringed.
Schedule 7 permits authorized officers to stop, question and detain persons at ports and airports in order to determine whether such persons appear to be or to have been concerned in the commission, preparation, or instigation of acts of terrorism. Use of Schedule 7 is not contingent upon reasonable suspicion that the person is involved in terrorist activity. A person examined under Schedule 7 is obliged to provide any information or documents requested, their belongings are subject to search, and any material handed over or found, including data stored on any electronic devices, may be retained. Schedule 7 also includes a power to detain (for up to nine hours at the time this case arose).
In January 2011, the applicant, Sylvie Beghal, was stopped and questioned under Schedule 7 at East Midlands Airport, having returned from Paris after visiting her husband, a French national in custody for terrorist offences. She was informed that police wished to speak to her to establish whether she might be concerned in the commission, preparation, or instigation of acts of terrorism. She kept her youngest child with her during the examination, and sent her two older children out to be met in the arrival hall. Her luggage was taken away and searched. Beghal requested the opportunity to consult a lawyer and to pray. She prayed, was searched, and then spoke to her lawyer by telephone. However, she was told that her examination would not be delayed to allow her lawyer to arrive. She informed the examining officers that she would not answer questions without her lawyer present. Nonetheless, the officers questioned her about personal matters and her trip to France. She refused to answer most of the questions. The examination concluded after about 30 minutes, and she was allowed to leave.
Subsequently, Beghal was charged and pleaded guilty to the offence of wilfully failing to comply with a duty imposed by Schedule 7. She appealed based on the claim that Schedule 7 was incompatible with Article 5 (the right to liberty), Article 8 (the right to respect for private and family life) and Article 6 (the privilege against self-incrimination). Her appeal reached the UK Supreme Court, where it was dismissed by a majority of 4 to 1.
The point of difference between the decisions of the ECtHR and UK Supreme Court concerns the issue of legality for the purposes of Article 8. The ECtHR did not consider it necessary to examine Beghal’s Article 5 complaint (the UK Supreme Court had found no breach of Article 5), and ruled that Article 6 was not engaged given that the applicant had neither been arrested nor charged with any criminal offence (the UK Supreme Court had held the same).
With regard to Article 8, the ECtHR observed that Schedule 7 powers were not analogous to ordinary immigration powers which any reasonable traveller might expect to be subject to. In any case, the UK government conceded that Beghal’s examination under Schedule 7 amounted to an interference with her rights under Article 8. The question then became whether this interference could be said to be “in accordance with the law”. The Court laid out the applicable general principles, which require the measure in question to “have some basis in domestic law and to be compatible with the rule of law”. Accordingly, the law must be “adequately accessible and foreseeable” such that an individual can regulate her conduct. Additionally, “[f]or 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.”
As applied to Beghal’s case, the question for the Court was whether “the safeguards provided by domestic law sufficiently curtailed the powers so as to offer her adequate protection against arbitrary interference with her right to respect for her private life”. The Court addressed this question by considering the following matters: the geographic and temporal scope of Schedule 7; the discretion afforded to the authorities in exercising the powers under Schedule 7; any limits on the interference occasioned by the exercise of the powers; the possibility of judicial review; and the existence of independent oversight.
The Court’s discussion in relation to many of these points referenced the earlier ECtHR decision of Gillan v United Kingdom, which concerned a similar counterterrorism stop and search power under the same legislation. In that case, the ECtHR had held that the relevant legislative provisions fell short of the requirements of being “in accordance with the law”, with the result that there was a violation of Article 8. These periodic references to Gillan appeared despite the Court itself stating that the relevant inquiry was not how Schedule 7 compared to the stop and search power at issue in that case, but rather “whether the Schedule 7 scheme, assessed as a whole, contains sufficient safeguards to protect the individual against arbitrary interference”.
In relation to geographic and temporal scope, the Court observed that Schedule 7 was “wide in scope” given its permanent application at ports and airports, although this did not in itself mean Schedule 7 failed to meet the principle of legality. The Court further acknowledged the threat of terrorism and the importance of border security measures as counterterrorism measures. Regarding the question of discretion, the Court acknowledged that examining officers enjoy an extremely broad discretion given Schedule 7’s lack of a reasonable suspicion requirement as well as the broad definition of terrorism in UK law. However, although a reasonable suspicion requirement was an important consideration in assessing lawfulness, the absence of such a requirement was not dispositive. Here the Court noted several countervailing points, beginning with the margin of appreciation afforded to states in matters of national security. It referred also to “clear evidence” that Schedule 7 was an effective security measure, and stated that, if a reasonable suspicion requirement was required, it would compromise the effectiveness of Schedule 7. Further, the Court observed that Beghal had not been formally detained, meaning that only the preliminary power to question and search a person was in issue. Moreover, examining officers were given guidance about how to exercise their discretion in the form of a Code of Practice, and the reports of the Independent Reviewer of Terrorism Legislation did not indicate that Schedule 7 was being abused.
Regarding limits on the interference occasioned by the exercise of the powers, the Court took note of various reforms put in place by the Anti-social Behaviour, Crime and Policing Act 2014, including the reduction in the maximum period of detention to six hours and the requirement that a person be formally detained if their examination is to exceed one hour. However, as the Court noted, at the time of Beghal’s examination the “only safeguard capable of curtailing the interference occasioned by the exercise of those powers was the requirement that she be released not later than the end of a period of nine hours from the beginning of the examination”.
In relation to the final two points, the possibility of judicial review and the availability of independent oversight, things appeared to take a decisive a turn against the UK government. Despite having earlier stated that the lack of a requirement of reasonable suspicion did not mean that Schedule 7 failed the test of lawfulness, the lack of such a requirement ultimately proved significant in that it made it difficult for the examining officer’s decision to use Schedule 7 to be subject to meaningful judicial scrutiny. With respect to independent oversight, the ECtHR observed that while the oversight provided by the Independent Reviewer should not be discounted, the level of oversight was at a programmatic rather than individual level, meaning that the Reviewer was not in a position to assess the lawfulness of a particular exercise of Schedule 7.
The Court’s discussion of these two safeguards is similar to its discussion in Gillan, where the UK government also relied on them as safeguards in the absence of a requirement of reasonable suspicion for the search power at issue in that case. Interestingly though, the Court in Beghal highlighted a further limitation on the Independent Reviewer. Earlier in its decision, the Court had set out the Independent Reviewer’s recommendations, made over several annual reports, in relation to Schedule 7. More specifically, the Independent Reviewer regarded three issues as outstanding, even after the 2014 reforms, and made the following recommendations: (1) rather than treating Schedule 7 as a monolithic power exercisable without the need for reasonable suspicion, a more granular approach ought to be taken, particularly with respect to powers to retain and copy the contents of phones and computers; (2) admissions made during a Schedule 7 examination ought to be barred from being introduced in a later criminal trial; and (3) there needed to be better safeguards for dealing with electronic data taken from devices as well as sensitive material such as legally privileged documents. Towards the end of its decision, the ECtHR noted that despite the Independent Reviewer’s reports having the attention of high-level decision-makers, the Independent Reviewer’s recommendations sometimes fell on deaf ears, even when those recommendations had the support of parliamentary committees such as the Joint Committee on Human Rights. Consequently, the ECtHR concluded that, while the oversight provided by the Independent Reviewer was “of considerable value”, it was in the end unable to compensate “for the otherwise insufficient safeguards applicable to the operation of the Schedule 7 regime”.
As a result, the ECtHR ruled that at the time of Beghal’s examination, Schedule 7 “was neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse”. Accordingly, it was not “in accordance with the law”, meaning that there had been a violation of Article 8. However, since this was the only violation, and one that related to the “quality of the law in force at the relevant time”, the Court did not see fit to make an award of non-pecuniary damage.
Overall, although the decision technically went in Beghal’s favour, the UK government is likely to regard Beghal as a win. First, there are a number of government-friendly observations in the ECtHR’s decision, such as where it acknowledged the importance of border control as a means of preventing terrorism, and specifically recognised the utility of Schedule 7 as a counterterrorism measure (adopting the observations to that effect by the Independent Reviewer). The Court also was open to the idea of Schedule 7 operating without a reasonable suspicion requirement. It suggested that requiring reasonable suspicion would reduce the efficacy of the power, and stated several times that the lack of a requirement of reasonable suspicion did not in itself mean that a stop and search power would fail to be in accordance with the law — although this latter point perhaps needs to be seen in light of the fact that, in both Beghal and Gillan, the absence of such a requirement undermined the effectiveness of the safeguard of judicial review.
Second, the ECtHR made clear that it was only addressing the law as it stood at the time of Beghal’s examination, which was prior to the reforms to Schedule 7 made by the Anti-social Behaviour, Crime and Policing Act 2014. The UK government might therefore claim that the issues raised by Beghal have already been satisfactorily addressed and that no further action is necessary. While this might be plausible with respect to the exercise of Schedule 7 in relation to Beghal, it would be premature to give Schedule 7 an entirely clean bill of health. Schedule 7 contains many powers in addition to the power to stop and question, including, notably, the power to detain and powers to retain electronic devices and copy data. In relation to detention, the ECtHR observed that since such a power entails “a greater interference with a person’s rights, and therefore has greater potential for abuse, it may well have to be accompanied by more stringent safeguards”. This is consistent with the view expressed by the UK Supreme Court, which expressed doubt as to whether a six hour detention (the maximum now allowable) could be proportionate given the lack of a requirement for reasonable suspicion. Similarly, with respect to the inspection, copying and retention of electronic data, the Supreme Court observed that “the retention of such data is a considerable intrusion into the private life of the subject, particularly given the volume and content of personal material which is kept nowadays on mobile telephones or portable computers”. Accordingly, the Court endorsed the Independent Reviewer’s call for more safeguards regarding electronic data, and suggested that any retention of data beyond an initial period for inspection and copying ought to require “objectively established grounds for suspicion”.
It just so happens that the facts of Beghal did not implicate the more draconian Schedule 7 powers — in contrast to the case of David Miranda (who was detained for the then-maximum period 9 hours, and had encrypted storage devices seized from him), or the ultimately withdrawn case of Malik v United Kingdom (which involved a four detention and retention of a mobile phone for 8 days). There is also the further example of the appeal by Muhammed Rabbani, arising from his refusal to divulge the PIN and password to his phone and laptop and consequent conviction for wilfully obstructing or seeking to frustrate a search or examination under Schedule 7. Rabbani’s case remains ongoing — he reportedly intends to appeal to the UK Supreme Court — meaning that there is the prospect of at least one more Schedule 7 case, and one that squarely implicates some of Schedule 7’s more invasive powers.
One other development worth noting is the recently enacted Counter-Terrorism and Border Security Act 2019, which has two items of interest with respect to Schedule 7 and Beghal. The first is incidental, with a provision in the Act introducing a statutory bar for admissions made under Schedule 7 in a subsequent criminal trial — thereby finally implementing one of the recommendations from the Independent Reviewer noted above. Second, and more significantly, Schedule 3 to the Act introduces a new suspicionless stop and search power modelled on Schedule 7. Schedule 3 allows an examining officer to question a person at the border “for the purpose of determining whether the person appears to be a person who is, or has been, engaged in hostile activity”. In keeping with the structure of Schedule 7, reasonable suspicion that a person is or has been engaged in hostile activity is not necessary, and there are a host of further powers, including detention and search.
Schedule 3 is officially stated to be a response to the poisoning of Sergei and Yulia Skripal in Salisbury in March 2018 with Novichok, a Russian military-grade nerve agent. The poisoning is widely understood to have been carried out by Russian military intelligence officers with high-level approval from within Russia. But the scope of Schedule 3 extends far more broadly than this, as has been noted by the Joint Committee on Human Rights and other commentators. The key triggering term of “hostile activity” is capaciously defined as the commission, preparation or instigation of a “hostile act” that is or may be carried out for another state or otherwise in the interests of another state. “Hostile act” is in turn defined as an act that “threatens national security”, “threatens the economic well-being of the United Kingdom in a way relevant to the interests of national security”, or “is an act of serious crime”. Both the ECtHR and UK Supreme Court acknowledge that Schedule 7 confers a broad discretion on examining officers. But the sheer breadth of the definition of hostile activity means that the discretion afforded by Schedule 3 may eclipse even that.
Given that Schedule 3 essentially follows the contours of the post-2014 version of Schedule 7, and adds further detail regarding the retention of property and the making and retaining of copies, it is difficult to confidently predict how a court might rule if/when Schedule 3 is challenged. This is all the more so given the many forms a Schedule 3 examination might take (as is the case with Schedule 7). But we can be confident that Beghal will not be the last word on suspicionless stop and search powers in UK law.