Schedule 7 and the Erosion of Privilege

The European Convention on Human Rights and Fundamental Freedoms (ECHR) was once likened to a ‘living tree capable of growth and expansion within its natural limits’. And grown it has. Fed facts by the populace of Europe and watered by learned judges, its initially frugal articles have since blossomed into fuller, more nuanced provisions.

Article 6 is a prime example. It protects our right to a fair hearing. This includes a right to have a lawyer, to call our own witnesses and examine those against us, and to be presumed innocent until proven guilty. Conspicuously absent, however, is the privilege against self-incrimination; an entitlement forged by the judiciary of the United Kingdom long before the ECHR came to be. Initially, it was hardly used in Britain. Defendants were not permitted representation, meaning that a failure to respond to incriminating evidence was fatal. Once the prohibition on counsel was relaxed the privilege was used with increasing frequency. Today, the common law principle is engaged whenever there is a real and appreciable risk of criminal proceedings being brought.

Given its omission from the ECHR, when Mr Funke asked the European Court of Human Rights (ECtHR) in 1993 to find a violation of article 6, after French authorities subjected him to a fine which exponentially increased all the while he refused to cooperate, few were holding out hope for a judgement in his favour. Despite all odds the Court found that he had every right under article 6 not to contribute to incriminating himself. By virtue of the Human Rights Act 1998, there are now two parallel principles protecting our right to insist that the prosecution prove the case against us.

Mrs Beghal's Case

Unfortunately, our ancient privilege is under threat. In Beghal v. Director of Public Prosecutions [2016] UKSC 49 Mrs Sylvie Beghal was travelling back from France where her husband, a man previously convicted of a terrorism offence, lived. She returned on 4 January 2011 and was taken aside at the airport by officers who proceeded to ask her a number of questions relating to her trip. Her lawyer was not present. They explained that although she was not a suspect they were asking her questions to determine whether or not she was a person concerned with the commission, preparation or instigation of terrorism.

The officers had relied on schedule 7 of the Terrorism Act 2000; a collection of ‘breathtakingly broad’ powers conferred on the police to stop people passing through airports, question and search them and even detain them for up to nine hours at the time Mrs Beghal was questioned (although this has since been reduced to six). Under schedule 7 there is no requirement that the officers even have a suspicion that the person be concerned with terrorism.

Mrs Beghal refused to answer most of the questions and was prosecuted for non-cooperation. While ultimately conditionally discharged, she faced a potential three-month prison sentence for failing to answer the officers’ questions. Her appeal against conviction eventually made it to the Supreme Court where she claimed, among other things, that her privilege against self-incrimination had been violated.

The Judgement

Lord Hughes, giving the leading judgement, concluded that a trial judge’s power to exclude evidence where its inclusion would be unfair makes it nigh on impossible for a prosecution to succeed based on schedule 7 questioning. He went further, explaining that article 6 was not engaged because Mrs Beghal was not charged with any offence.

In an incisive dissent, Lord Kerr points out the flaw in his brother judge’s reasoning. ‘[T]he protection afforded by the privilege’ he asserts ‘is against the risk of prosecution rather than conviction’. As such, while Mrs Beghal might have been able to get the evidence excluded at trial, she would not be able to ensure that she was not prosecuted at all off the foot of that evidence. Therefore, she was indeed a suspect and both the common law privilege against self-incrimination and article 6 were violated.

Lord Kerr’s approach must be correct. There is no clearer evidence of Parliament’s intent on the matter than their refusal to implement the recommendation made by David Anderson QC, the Independent Reviewer of Terrorism Legislation, that a statutory bar be included, precluding the use of any incriminating answers as part of a subsequent trial.

Comment

While it is easy to sympathise with the officers’ desire to quiz Mrs Beghal specifically after she visited a convicted terrorist, the fact that schedule 7 doesn’t require even a whiff of suspicion means that officers effectively have carte blanche, making the provision ripe for abuse. In fact, a similar power was found to be incompatible with the right to respect for ones private and family life back in 2010. One study also suggests that people of Asian descent are much more likely to be stopped and are usually detained for far longer than their white counterparts, raising legitimate concerns about ethnic profiling.

The risk of abuse is magnified if one accepts the Supreme Court’s logic that those detained under schedule 7 have not been charged. As Liberty noted in their intervention in Beghal, where they are not officially charged an

"unscrupulous officer [could] deliberately … delay charging or arresting a person stopped under Sch. 7, so as to use his compulsory powers, obtaining evidence which is admissible in criminal proceedings, with no privilege against self-incrimination or even the protection of a caution"

In the end, the question is far bigger than just Mrs Beghal. It is about how far the government can acceptably erode our rights and privileges in the name of counter-terrorism. I would suggest that the schedule 7 powers go beyond the pale. They are over-broad, liable to create a climate of impunity in relation to ethnic profiling and destroy age-old rights and privileges without creating any additional safeguards.

Although factually Mrs Beghal’s case is perhaps not an ideal one on which to rest such a crucial appeal, she is likely to take a trip to Strasbourg and I hope that for the sake of the broader public interest she will find favour with the European Court.