On appeal from:  EWHC 2573 (Admin)
The Supreme Court dismissed the appeal by a majority of 4-1 regarding the Terrorism Act 2000, Sch 7, and whether it violates the ECHR, arts 5, 6, and 8.
The appellant was stopped and searched upon arrival to East Midlands Airport after visiting her husband who was being held in French custody in relation to terrorist offences. Although she was not formally detained, arrested or suspected of being a terrorist, she was told by the Police that they needed to speak to her to establish whether she was involved in terrorist acts. They did this exercising the power under the Terrorism Act 2000, Sch 7, para 2. Upon refusing to answer questions in the absence of her lawyer, she was charged with the offence of wilful failure to comply with the requirement to answer questions. The appellant later pleaded guilty to this offence and her sentence was a conditional discharge. The appellant brought proceedings arguing that the Sch 7 powers breached her rights under the ECHR, arts 5, 6 and 8.
Giving the lead majority judgment, Lord Hughes stated that questioning and search under compulsion undoubtedly constitutes an interference with art 8(1). Interference with this right can be justified if it is “in accordance with the law” as there are sufficient safeguards and controls against overbroad and arbitrary use of this power. Lord Hughes reasoned that the fact that questioning does not require objective grounds for suspicion does not by itself mean that the safeguards are inadequate. He also considered that the power under sch 7 is also proportionate because it is rational to question and search at ports to prevent and detect terrorism; to require reasonable suspicion before using the power would not achieve the same utility in fighting the threat of terrorism; and it represents a fair balance between the individual’s rights and those of the community at large.
In regards to the argument of a breach to art 5, Lord Hughes explained that detention beyond what is necessary to complete the process of questioning and search can only be justified by objectively demonstrated suspicion. However, he stated in this case any deprivation of the appellant’s liberty was for no longer than was necessary for the completion of the process.
In relation to the privilege against self-incrimination under art 6, Lord Hughes held that it was not applicable to these proceedings as the appellant is not a person charged for the purpose of art 6. Lord Hughes also held that there was no wrongful denial of the common law privilege against self-incrimination, as the language and purpose of Sch 7 necessarily implied that Parliament had intended to override the common law right.
Matthew Ryder QC and Edward Craven, Alex Bailin QC and Dan Squires were involved in this case.