In a judgment with implications for the detention of David Miranda, the High Court has today dismissed an appeal against a conviction for wilfully failing to comply with a duty imposed by virtue of Schedule 7 to the Terrorism Act 2000.
The Court rejected the submission that the Schedule 7 powers in question violated the Appellant’s right under Articles 5, 6 and 8 of the ECHR. However, the Court urged consideration of a legislative amendment introducing a statutory bar to the introduction of Schedule 7 admissions in subsequent criminal trials.
Part of the following report is taken from the Court’s press summary, part is based on the judgment itself.
The central (though not sole) issue concerned the compatibility of the powers to “stop, question and detain” contained in Schedule 7 to the Terrorism Act 2000 (“TACT 2000” and “Schedule 7” respectively) with, in particular, Articles 6 and 8 of the European Convention on Human Rights . The appeal thus gives rise to the question of where the balance is to be struck between the rights of the individual and the public interest in safeguarding the country from terrorism.
This is a challenging area for the law, requiring vigilance as to individual liberties while retaining a firm grasp of the practical needs of national security.(para 2)
Factual Background
The appellant is a French national who is ordinarily resident in the United Kingdom. Her husband is currently in custody in France in relation to terrorist offences. On the 4th January, 2011, following a visit to her husband, she returned to this country with her three children, arriving at East Midlands Airport, at around 20.05, on a flight from Paris. At the UK Borders Agency desk she was asked to remain; officers from Leicestershire Constabulary subsequently conducted an examination under Schedule 7.
She was told she was not under arrest and the police did not suspect her of being a terrorist. She was told the police needed to speak to her to establish if she may be a person concerned in the commission, preparation or instigation of acts of terrorism. She was taken to an examination room with her infant child, the other two children being allowed to proceed to Arrivals. Her luggage was taken to another room to be searched. The Appellant requested to consult with a lawyer and later asked to have an opportunity to pray. When she had finished praying, she was interviewed about her family, her financial circumstances and her recent visit to France. She did not provide answers to most of those questions. When the examination was over she was cautioned and reported for the offence of failing to comply with her duties under Schedule 7 by refusing to answer any questions.
On 12 December 2011, at Leicester Magistrates’ Court she pleaded guilty to one charge of wilfully failing to comply with a duty imposed under or by virtue of Schedule 7, contrary to para. 18(1)(a) of that Schedule. In this appeal, by way of case stated, that court asked
1) whether it had erred in law in refusing to stay the proceedings against the Appellant on the basis that her prosecution for failure to comply with a duty under Schedule 7 of the Terrorism Act amounted to a breach of her rights under Articles 5, 6 and 8 of the ECHR (including her rights of access to a lawyer, the privilege against self-incrimination and right to privacy and family life)?
2) whether it had erred in law in refusing to stay the proceedings against the Appellant on the basis that her prosecution for failure to comply with a duty under Schedule 7 of the Terrorism Act
Her appeal was dismissed.
Reasoning of the Court
Issue I (Articles 8 and 5, ECHR and Rights to Freedom of Movement)
Lord Justice Gross, giving the judgment of the Court, in relation to the Article 8 argument, concluded that the Schedule 7 powers were neither arbitrary nor disproportionate. As expressed in Bank Mellat, a fair balance had been struck between the rights of the individual and the interests of the community.
This conclusion was also dispositive of the argument in relation to Article 5.
As to the freedom of movement argument for the appellant as an EU citizen, Lord Justice Gross acknowledged that these rights were important, and served to counter any argument that the Schedule 7 powers bit only on individuals who chose to travel. That said, it seemed clear to him that the argument as to freedom of movement rights was subsumed into the debate under Articles 5 and 8, and, to an extent, Article 6, and served to shape the context of that debate. Therefore this particular argument did not require further and independent consideration (para 114).
Issue II (Article 6, ECHR)
Two principal issues were canvassed under this heading. First, whether the appellant’s Article 6 rights were engaged by the exercise of the Schedule 7 powers of examination. Secondly, if Art. 6 was engaged, whether the Appellant’s Article 6 rights were violated.
The Court concluded that Article 6 was not engaged by the Schedule 7 examination. This conclusion was itself fatal to the appellant’s appeal under Article 6. (para 133)
The Court went on to consider whether the Appellant’s rights under Article 6 were violated – on the assumption, contrary to its primary view, that those rights were engaged. Even if Article 6 had been engaged, the safeguard provided by s.78 of the Police and Criminal Evidence Act was sufficient to prevent a violation. (para 139)
Lord Justice Gross LJ added:
It is one thing to conclude that the Schedule 7 powers of examination neither engage nor violate a defendant’s Art. 6 rights; it is another to conclude that there is no room for improvement. For our part, we would urge those concerned to consider a legislative amendment, introducing a statutory bar to the introduction of Schedule 7 admissions in a subsequent criminal trial. The terms of any such legislation would require careful reflection, having regard to the legitimate interests of all parties but, given the sensitivities to which the Schedule 7 powers give rise, there would be at least apparent attraction in clarifying legislation putting the matter beyond doubt. (para 146)
This was followed by a postscript in which Gross LJ stressed that the court had concluded that the Schedule 7 powers of examination survived the challenges advanced before it.
In short, the balance struck between individual rights and the public interest in protection against terrorism does not violate the fundamental human rights in question. As already touched upon in the context of Article 6, it does not follow that there is no room for improvement. (para 147)
Sign up to free human rights updates by email, Facebook, Twitter or RSS