Beghal v. the United Kingdom (Application no. 4755/16)

Key paragraph(s) can be found below the document.

Para 76. While the Court expressly recognised the potential distinction between the “stop and search powers” under section 44 of TACT and “the search to which passengers uncomplainingly submit at airports or at the entrance of a public building” (see Gillan and Quinton, cited above, § 64), Schedule 7 powers were clearly wider that the immigration powers to which travellers might reasonably expect to be subjected.

Para 92. The Schedule 7 powers can only be exercised by police officers at ports and border controls. The majority of the Supreme Court considered that this restriction distinguished the case from Gillan and Quinton, cited above, since the “stop and search powers” under section 44 of TACT could be exercised throughout the whole of the United Kingdom (see paragraph 27 above). However, Lord Kerr, in his dissenting opinion, considered that the Schedule 7 powers were much broader than the “stop and search” powers, since they were not subject to any express authorisation and they were not temporally or geographically limited. As a consequence, they had the potential to affect the 245 million people who pass through the United Kingdom’s ports and borders every year (see paragraphs 33-36 above).

Para 91. Although the Court sees the logic behind the comparison to Gillan and Quinton, the important question is not whether the Schedule 7 powers are wider or narrower than the “stop and search” powers, or how the safeguards which curtail the exercise of both powers measure up, but rather whether the Schedule 7 scheme, assessed as a whole, contains sufficient safeguards to protect the individual against arbitrary interference.

Para 92. In this regard, while the Court would accept that in view of their permanent application at all ports and border controls, the Schedule 7 powers are wide in scope, this does not, in itself, run contrary to the principle of legality. The Court has expressly acknowledged both the very real threat that Contracting States currently face on account of international terrorism (see, for example, Chahal v. the United Kingdom, 15 November 1996, § 79, Reports of Judgments and Decisions 1996‑V; A. and Others v. the United Kingdom [GC], no. 3455/05, § 181, ECHR 2009; A. v. the Netherlands, no. 4900/06, § 143, 20 July 2010; Trabelsi v. Belgium, no. 140/10, § 117, ECHR 2014 (extracts); and Othman (Abu Qatada) v. United Kingdom, no. 8139/09, § 183, ECHR 2012).) and the importance of controlling the international movement of terrorists (see, for example, McVeigh, O’Neill and Evans v United Kingdom (1981) 5 EHRR 71, § 192). Ports and border controls will inevitably provide a crucial focal point for detecting and preventing the movement of terrorists and/or foiling terrorist attacks. Indeed, all States operate systems of immigration and customs control at their ports and borders, and while these controls are different in nature to the Schedule 7 powers, it is nevertheless the case that all persons crossing international borders can expect to be subject to a certain level of scrutiny.

Para 100. At the time the applicant was examined, Schedule 7 provided that a person detained under that power had to be released not later than the end of a period of nine hours from the beginning of the examination (see paragraph 40 above). The Code of Practice further required that the examining officer keep the length of the examination “to the minimum that is practicable”. At the beginning of the examination, the examining officer had to explain to the person concerned either verbally or in writing that she was being examined under Schedule 7 of TACT and that the officer had the power to detain her should she refuse to co-operate and insist on leaving. A record had to be kept of the examination; at the port, if the examination lasted less than one hour, or centrally, if it lasted longer (see paragraph 42 above). However, despite the fact that persons being examined were compelled to answer the questions asked, neither TACT nor the Code of Practice in force at the relevant time made any provision for a person being examined (who was not detained) to have a solicitor in attendance. Consequently, persons could be subjected to examination for up to nine hours, without any requirement of reasonable suspicion, without being formally detained, and without having access to a lawyer.

Para 107. The oversight provided by the Independent Reviewer should not, therefore, be underestimated. Nevertheless, his reviews are invariably ad‑hoc and insofar as he is able to review a selection of examination records, he would not be in a position to assess the lawfulness of the purpose for the stop. Moreover, while his reports are scrutinised at the highest level (the Government in fact publishes its formal response to his annual reports), a number of important recommendations have not been implemented, despite having received support from the Joint Committee on Human Rights and the Home Affairs Select Committee. In particular, the Independent Reviewer has repeatedly called for the introduction of a suspicion requirement for the exercise of certain Schedule 7 powers, including the power to detain and to download the contents of a phone or laptop; and criticised the fact that answers given under compulsion are not expressly rendered inadmissible in criminal proceedings (see paragraphs 57‑60 above). Although the Counter-Terrorism and Border Security Bill contains a bar on the admissibility in court of answers to questions when an individual is stopped at a port or border under Schedule 7 of TACT (see paragraph 63 above), the Government have not introduced any suspicion threshold for the exercise of the power to detain.

Para 108. Therefore, while of considerable value, the Court does not consider that the oversight of the Independent Reviewer is capable of compensating for the otherwise insufficient safeguards applicable to the operation of the Schedule 7 regime.

Para 109. In conclusion, the Court considers that when the applicant was stopped at East Midlands airport in January 2011, the power to examine persons under Schedule 7 of TACT was neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. While it does not consider the absence of any requirement of “reasonable suspicion” alone to have been fatal to the lawfulness of the regime, when considered together with the fact that the examination could continue for up to nine hours, during which time the person would be compelled to answer questions without any right to have a lawyer present, and the possibility of judicially reviewing the exercise of the power would be limited, the Court finds that the Schedule 7 powers were not “in accordance with the law”. It follows that there has been a violation of Article 8 of the Convention.

Para 110. In reaching this conclusion the Court has only had regard to the Schedule 7 power to examine as it was at the time the applicant was stopped. It has not considered the amendments which flowed from the Anti‑Social Behaviour, Crime and Policing Act 2014 and the updated Code of Practice; nor has it considered the power to detain under Schedule 7, which has the potential to result in a much more significant interference with a person’s rights under the Convention.