Legislation that allows with no suspicion the interrogation of a passenger up to 9 hours and an obligation to answer the questions of the authorities without being detained and without the presence of a lawyer violates the respect for his private life

JUDGMENT

Beghal v. United Kingdom 01.03.2019 (no.4755/16)

see here

SUMMARY

The case concerned the use of counter-terrorism legislation giving immigration officers the power to
stop, search and question passengers at ports, airports and international rail terminals. The
applicant, Sylvie Beghal, had been stopped and questioned at East Midlands Airport in 2011.
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.

In reaching that conclusion the Court did not consider amendments since made to the legislation. In
particular, as of 2014, border officials have been required to take a person into detention if they
wish to examine him or her for longer than an hour, to only commence questioning after the arrival
of a solicitor, and to release those being questioned after six hours.

No award of damages was made to the applicant as the Court considered that the finding of a
violation was sufficient.

PROVISIONS

Article 8

PRINCIPAL FACTS

The applicant, Sylvie Beghal, is a French national who was born in 1969 and lives in Leicester (United
Kingdom).

On 4 January 2011 Mrs Beghal arrived at East Midlands Airport following a visit to her husband, who
was in prison in France for terrorism offences. Her flight landed at 8.05pm.

She was stopped under counter-terrorism legislation, namely Schedule 7 of the Terrorism Act 2000,
giving police and immigration officers the power to stop, search and question passengers at ports,
airports and international rail terminals. The legislation does not require prior authorisation and the
power to stop and question may be exercised without suspicion of involvement in terrorism.

Mrs Beghal was told by border officials that she was not under arrest and that they did not suspect
her of being a terrorist, but that they needed to speak to her to establish if she might be “a person
concerned in the commission, preparation or instigation of acts of terrorism”.

After being given time to pray, she was searched, allowed to speak with her lawyer by telephone and
then taken to an examination room where she was questioned for about 30 minutes. She refused to answer questions without her lawyer present. She was told that she was “free to go” at around 10 p.m.

She was subsequently charged with, in particular, wilfully failing to comply with a duty under
Schedule 7. She pleaded guilty in December 2011 and was conditionally discharged.

She challenged the powers given to the police under Schedule 7 before both the High Court and the
Supreme Court, alleging a violation of her rights under the European Convention. However, the
national courts found in particular that the Schedule 7 powers were “in accordance with the law”
and proportionate. In reaching this conclusion, the Supreme Court considered the law as it stood on
the date of its examination and therefore took into account amendments to the legislation which
had been made in 2014 by the Anti-Social Behaviour, Crime and Policing Act 2014 and the updated
Code of Practice. Those amendments included requiring examining officers to take a person into
detention if they wished to examine him or her for longer than an hour, to only commence
questioning after the arrival of a solicitor, and to release those being questioned after six hours.

THE DECISION OF THE COURT 

Article 8 (right to respect for private and family life)

The Government conceded, and the Court therefore accepted, that there had been an interference
with the applicant’s right to respect for her private and family life.

The Court went on to examine whether the scheme had contained sufficient safeguards to protect
the applicant against arbitrary interference at the time she had been stopped at East Midlands
Airport.

It considered that the scope of the Schedule 7 powers and the discretion given to examining officers
to exercise them had been broad. In particular, the powers had been permanently applied at all
ports and border controls and border officials had not been required to demonstrate that they had a
reasonable suspicion that a person had been involved in terrorism.

The wide scope of the powers and the absence of a requirement of “reasonable suspicion” did not in
themselves though run contrary to the principle of legality, bearing in mind the very real threat of international terrorism currently faced by Contracting States. Indeed, there was clear evidence that
the Schedule 7 powers had been of real value in protecting national security and had not, in fact,
been abused. In 2011, for example, only 0.03% of passengers travelling through ports had been
examined under Schedule 7.

However, there were other factors which meant that the legislation had not been sufficiently
circumscribed nor were there adequate legal safeguards against abuse in 2011. 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. Furthermore, the possibility to seek judicial
review of the exercise of the Schedule 7 powers was limited because the border official was not
obliged to show “reasonable suspicion”.

Taking into account those insufficient safeguards, considered together with the absence of any
requirement of “reasonable suspicion”, the Court found that at the time the applicant had been
stopped the Schedule 7 powers had not been “in accordance with the law”. It followed that there
had been a violation of Article 8 of the Convention.

In reaching that conclusion the Court – unlike the Supreme Court – did not consider the
amendments to the legislation in 2014 by the Anti-Social Behaviour, Crime and Policing Act 2014 and
the updated Code of Practice.

Nor had the Court examined the power to detain under Schedule 7, which had the potential to result
in a much more significant interference with a person’s rights under the Convention.

Article 5 (right to liberty and security)

The Court considered that there was no need to examine the applicant’s complaint under Article 5
as it was based on the same facts as her Article 8 complaint.

Article 6 (right to a fair trial)

The applicant argued that the exercise of coercive police powers to compel her to provide answers
that might have been incriminating, without any assurance that her answers would not be used
against her in a criminal trial, had breached her Article 6 rights.

The Court, however, found that the applicant had neither been arrested nor charged with any
criminal offence. The mere fact that she had been selected for examination could not be understood
as meaning that she had been suspected of involvement in any criminal offence. On the contrary,
police officers had explicitly told her that she was not under arrest and that the police did not
suspect her of being a terrorist.

The Court therefore considered that the applicant’s examination under the Schedule 7 scheme could
not engage Article 6 of the Convention and rejected that part of her complaint as inadmissible.

Article 41 (just satisfaction)

The Court held that the finding of a violation constituted in itself sufficient just satisfaction for nonpecuniary damage sustained by the applicant. It awarded 25,000 euros in respect of costs and expenses, to be paid to the applicant’s lawyer(echrcaselaw.com editing).


ECHRCaseLaw

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