On 28 February 2019, the European Court of Human Rights gave its judgment in Beghal v United Kingdom, in which it unanimously held that there had been a violation of Sylvie Beghal’s right to respect for private and family life, enshrined in Article 8 of the European Convention on Human Rights (“ECHR”).

The case concerns the power of police to stop and question travellers at ports and airports in Britain without the requirement for reasonable suspicion.

This post will provide a short description of the facts of the case and briefly set out the legal arguments put forward by both sides. It will then argue that, as some areas of the current terrorism legislation remain largely untested (e.g. power to seize sensitive electronic information outside the journalistic context), and with the introduction of new powers in the recent Counter-Terrorism and Border Security Act 2019, Beghal is unlikely to be the end of the story on no-suspicion stop and question powers.

The facts in Beghal

The applicant, Sylvie Beghal, is a French national living in Leicester, United Kingdom. On 4 January 2011, she arrived at East Midlands Airport following a visit to her husband, Djamel Beghal, who is in prison in France for terrorism offences. Upon arrival, she was stopped under the infamous Schedule 7 of the UK Terrorism Act 2000, a piece of counter-terrorism legislation which gives British police and immigration officers the power to stop, search and question passengers at international points of border-crossing (ports, airports and international rail terminals).

Such powers are to be exercised for the purpose of determining whether the person “appears to be concerned or to have been concerned in the commission, preparation or instigation of acts of terrorism” – and can be exercised without any suspicion of involvement of terrorism. If someone fails to co-operate he or she is deemed to have committed a criminal offence and could face up to three months in prison, a fine or both.

After being stopped, Sylvie Beghal was taken to an interrogation room and given the opportunity to call a lawyer. She was searched, and her luggage was searched too. She was told that she was not under arrest, but would be questioned under Section 7. She told the officers that she would only answer questions after her lawyer arrived, but the lawyer took a few hours to arrive and the officers started the examination. Thereafter, she was asked a number of questions about her family, her financial circumstances and her recent visit to France. She refused to answer most of those questions. She was later charged with wilfully failing to comply with a duty under Schedule 7.

Legal arguments: was the interference ‘in accordance with the law’?

The fact that there had been an interference with Ms Beghal’s right to respect for private life was not contested by the UK Government. The question, therefore, was whether such an interference was “in accordance with the law”.

The applicant argued that it was not in accordance in the law, because the powers under Schedule 7 were not sufficiently circumscribed and did not provide adequate safeguards against abuse:

• The absence of any requirement for objective grounds for suspicion, or even subjective suspicion, meant that an officer could exercise powers based on no more than a hunch, which in turn gave considerable scope for extraneous factors and motives – such as biases and ingrained stereotypes – to influence how an officer selected individuals to stop and question.
• In Gillan and Quinton v UK, sections 44 and 45 of the 2000 Act (which set out a power to stop and search exercisable in relation to any person anywhere in the street), had already been held not to be in accordance with the law despite having a narrower purpose and scope of application, and despite not allowing as intrusive a search as the one permitted under Schedule 7.
• The Code of practice in force at the time of the applicant’s examination did not tell examining officers how to determine whether the exercise of Schedule 7 powers was proportionate, nor did it require them to keep to a minimum all interferences with fundamental rights.
• Although individuals were entitled to consult a solicitor, that did not prevent arbitrary selection in the first place, and in any case officers were permitted to interrogate a person in the absence of their solicitor anyway (which is what happened to Sylvie Beghal).
• There was no requirement for officers to explain the reasons why a particular individual has been selected for examination, and no obligation to record such reasoning either.
• Because the lawful exercise of the powers was not conditional on any suspicion (reasonable or otherwise), the scope for using judicial review proceedings to challenge the decision was extremely limited.

The Government argued the following:

• The power was focussed on entry and exit points to the United Kingdom, which were the first line of defence against the entry and exit of terrorists, and as such they provided a unique opportunity to target checks where they were likely to be the most effective.
• There were sufficient effective safeguards in the operation of the scheme to meet the requirements of legality. The Government cited a list of factors demonstrating the existence of such safeguards, such as the restriction on the duration of the interview and on the type of search, the availability of judicial review, and the continuous supervision of the scheme by an Independent Reviewer.
• There was no evidence that the powers had been used in a racially discriminatory fashion, and such a use was expressly prohibited by the Code of Practice.

The Court found that the legislation in force at that time had not been sufficiently circumscribed, nor were there adequate legal safeguards against abuse. In particular, people could be subjected to examination for up to nine hours and compelled to answer questions without being formally detained or having access to a lawyer.

To reach this conclusion, the Court considered the following factors:

1. Geographic and temporal scope of the powers: The Court found that the wide scope of application of Schedule 7 (applying at all ports and border controls) did not in itself run contrary to the principle of legality. Consideration was also given to “the very real threat that Contracting States face on account of international terrorism” and the need to control international movement of terrorists.
2. Discretion afforded to the authorities in deciding if and when to exercise the powers: The existence of a requirement of reasonable suspicion is an important factor in assessing the lawfulness of a power to stop and question or search a person, but the lack of such a requirement does not in itself render the exercise of the power unlawful. The Court gives Member States a wide margin of appreciation in matters relating to national security, and noted that there was clear evidence that the Schedule 7 powers have been “of real value in protecting national security”. Interestingly, the Court seemed to make a case against the requirement for reasonable suspicion, by pointing out that such a requirement could actually lead to terrorists avoiding the deterrent threat of Schedule 7 “by using people who had not previously attracted the attention of the police (“clean skins”)” and noting that “the mere fact of a stop could alert a person to the existence of surveillance”.
3. Any curtailment on the interference occasioned by the exercise of the powers: Individuals could be subjected to examination for up to 9 hours, without any requirement of reasonable suspicion, without being formally detained, and without having access to a lawyer. The only ‘curtailment’ at the time of the applicant’s examination was therefore this 9-hour time limit.
4. Possibility of judicial review: The Court found that the absence of a requirement of suspicion made it difficult to challenge the lawfulness of the decision to exercise Schedule 7 powers.
5. Independent oversight of the use of the powers: The use of the powers is subject to independent oversight by the Independent Reviewer of Terrorism Legislation. Although the Court noted the Reviewer’s important role in providing unbiased, scrutinised oversight, it found that such oversight was not capable of compensating for the otherwise insufficient safeguards applicable to the operation of the Schedule 7 regime (noting, for example, that a number of important recommendations had not been implemented by the UK Government).

Do recent changes to Schedule 7 powers make Beghal v United Kingdom moot?

The writing had been on the wall for the most extended of Schedule 7 powers long before the Court’s judgment in Beghal v United Kingdom. The powers were facing a number of legal challenges and, in 2013, the UK Supreme Court raised serious concerns about the potential for “serious invasions of personal liberty” due to a lack of safeguards.

As a result, in 2014 significant changes were made to Schedule 7 with the aim of reducing the potential scope for interference with individuals’ rights while retaining operational effectiveness. This included limiting the maximum period of interview from 9 hours to 6 hours, providing for specific training for officers, and providing for specific protection for information benefiting from attorney-client privilege or journalistic material.

In the 2016 Miranda judgment, although the exercise of the Schedule 7 stop power in relation to Mr Miranda was deemed lawful, the Court of Appeal found that the stop power, if used in respect of journalistic information or material, was incompatible with Article 10 of the ECHR (freedom of expression) as it was not prescribed by law.  Again, judges warned that Schedule 7 appeared too arbitrary and lacked safeguards.

It would be easy to dismiss Beghal v United Kingdom as moot: Britain has changed its law since the relevant events occurred, hasn’t it? Indeed, throughout the judgment, the Court confirms it has only had regard to the Schedule 7 power to examine “as it was at the time the applicant was stopped” (see paragraph 110).

The UK Government is likely to argue that any flaw in the legislation has been remedied already, but the rest of paragraph 110 tells another story: “[The Court] 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” (emphasis added).

This warning wasn’t lost on former Independent Reviewer David Anderson QC, who noted on Twitter: “the end of paragraph 110 contains a significant sting in the tail, flagging for future attention the use of more advanced no-suspicion powers not used in this case, e.g. to detain and to download devices”.

Data mining of electronic devices under Schedule 7 remains largely untested

In 2017, Muhammad Rabbani, the director of campaigning group Cage, was prosecuted after refusing to hand over the passwords of his mobile phone and computer when stopped by police at Heathrow Airport.

The case escalated to the Court of Appeal, with Rabbani’s lawyers relying on the Miranda precedent to argue that the protection owed to journalistic material applied to other categories of protected information. This argument was dismissed by the Court of Appeal, with Lord Justice Irwin noting that the Miranda decision was “expressly and narrowly” centred on Article 10 of the ECHR and freedom of expression for journalism, and that it was “by no means self-evident that identical or (or even similar) considerations arise in respect of other categories of excluded or special procedure information”.

Following the Court of Appeal decision in May 2018, Rabbani said he would appeal the decision at the UK Supreme Court. In an era where phones and computers give individuals the means of carrying a large number of potentially sensitive documents, the case raises important questions regarding the right to privacy and the limits of data mining of electronic devices in the name of counter-terrorism.

Regulating the retention of electronic data downloaded from devices is something that was indeed on the radar of Britain’s terrorism watchdog. In his most recent report dated October 2018, then Independent Reviewer Max Hill QC notes a sharp drop in the number of port stops: from 60,000 in 2012 down to approximately 16,000 in 2017. This remarkable trend is caused no doubt by multiple factors, “which must include better capture of passenger manifest data across the UK, and better use of targeting techniques, even though reasonable suspicion is still not required for a stop”.

But the numbers reveal something else: the proportion of detentions resulting from such examinations is rising. In 2012, around 1% of examinations led to detention. In 2017, a staggering 10.4% of examinations resulted in detention. Although this is not a particularly worrying pattern, and it might in fact simply be a result of rising efficiency in data capturing and targeting, the report nonetheless warns that “important questions remain, including the ongoing issue of satisfactory rules governing the retention of both biometric data taken from individuals and electronic data downloaded from their devices”.

New legislation enacted in February 2019: Schedule 7-type powers for non-terrorist ‘hostile acts’

Finally, one can expect renewed debate over no-suspicion stop and question powers in light of the new Counter-Terrorism and Border Security Act 2019 (the “2019 Act”), which was signed into law on 12 February 2019.

Defining ‘terrorism’ is always a tricky exercise. The 2018 Novichok poisonings in Salisbury, and the question of the perpetrators and their origin, or the question of state sponsorship, have inflamed the issue of what terrorism means – should counter-terrorism legislation include powers to deal with non-terrorist acts that nevertheless threaten the nation?

In reaction to this, the new 2019 Act provides a separate legal regime to deal with “hostile acts”, i.e. non-terrorist acts which threaten national security, threaten the economic well-being of the United Kingdom in a way relevant to the interests of national security, or constitute an act of serious crime. Schedule 3 of the 2019 Act provides for stop and question powers that the Government explicitly notes are “closely modelled on Schedule 7 of the Terrorism Act 2000”.

When it was still only a bill going through the parliamentary process, the 2019 Act was scrutinised by the relevant committee on human rights, which expressed concerns about the stop and search powers at ports and borders:

We expressed concern that Schedule 3 provides for interference with the rights to private life, freedom of expression, and property, yet the powers it gives are dangerously broad. In particular, the definition of ‘hostile act’ is extremely wide and there is no threshold test of suspicion required before a person is detained and examined. In its response, the Government acknowledges that the definition of hostile activity is broad but states that “it is required to encompass the spectrum of threats currently posed to the UK by hostile states, which includes espionage, subversion and assassination”. We would be grateful for more clarity of the Government’s position on the necessity of this ‘no suspicion’ power.

The committee suggested the insertion of a threshold of reasonable suspicion and a requirement that the exercise of the power must be necessary and proportionate. This fell on deaf ears, and the suggested amendments were not included in the draft bill (now the 2019 Act).

Conclusion

In conclusion, Beghal v United Kingdom is unlikely to be the end of the story in terms of challenges to counter-terrorism legislation. With the creation of new stop and search powers, and the unresolved question of the legality of the more advanced powers (such as the power to detain and search electronic devices), Britain would benefit from strong, independent oversight of its counter-terrorism legislation. Shame the position of Independent Reviewer of Terrorism Legislation has been vacant since October 2018, with no indication as to when the next ‘terrorism watchdog’ will be appointed and despite repeated calls from former reviewers.