XX (Appellant) v Director of Public Prosecutions (Respondent) [2015] UKSC 49
- 2015
- United Kingdom
Topics
Membership in a terrorist organisationLegal bases
European Convention on Human Rights United Kingdom: The Terrorism Act 2000Courts
The Supreme Court (UKSC), United KingdomLaws
Right to Liberty Right to a fair trial Right to respect for private and family lifeFacts
On 4 January 2011, Mrs. XX passed through East Midlands Airport with her three children on returning from visiting her husband in Paris, a French national in custody on terrorist offences. She was stopped by police and, although not formally detained, arrested on suspicion of being a terrorist and was told that the police needed to speak to her to establish whether she was involved in terrorist acts. The police did this exercising the power under Paragraph 2 of Schedule 7 of the Terrorism Act 2000, which deals with questioning individuals at ports or borders for the purpose of determining whether they appear to be or to have been concerned in the commission, preparation or instigation of acts of terrorism (para. 40(1)(b) Terrorism Ac, 2000). No reasonable suspicion of a past or future offence is needed. Under other provisions of Schedule 7, officers may also: require the production of documents carried; copy and retain material; and, search and detain (currently for a maximum of 6 hours) individuals. By way of sanction, Paragraph 18 of Schedule 7 of the Terrorism Act 2000 makes it a criminal offence, on pain of fine and/or imprisonment, wilfully to fail to comply with these requirements. A Code of Practice exists for officers exercising these powers. Mrs. XX sent her two eldest children to the arrivals gate, asked for a lawyer (with whom she spoke on the phone) and requested – and was granted – an opportunity to pray. She was searched and in the absence of the lawyer was asked, amongst other questions, about her relationship with her husband, her reasons for travel, where she had stayed and whether she had travelled beyond France. She refused to answer most of the questions and was charged with the offence of wilful failure to comply with the requirement to answer questions. The questions and reporting her for failure to answer them lasted under half an hour. She later pleaded guilty to this offence and her sentence was a conditional discharge. Mrs. XX has brought proceedings arguing that the Schedule 7 powers breached her Article 5 (right to liberty), Article 6 (privilege against self-incrimination) and Article 8 (right to respect for private and family life) rights under the ECHR. The Divisional Court dismissed her claims. Mrs. XX has appealed to the Supreme Court for review.
Legal grounds
Schedule 7 paragraph 2 of the Terrorism Act 2000; Article 5, 6 and 8 of the ECHR.
Findings
The Supreme Court dismisses the appeal by a majority of 4-1. Article 8 was seen to have been fairly overwritten by Schedule 7, as it is legally and proportionately used in the proper location (in this case at a port), requiring reasonable suspicion (which there was), contained a fair balance of individual rights against those of the wider community (justified because temporary detainment of a suspect is proportionately fair to the wide scale damage and disruption of a terror attack). The Schedule 7 powers were not used in a racially motivated manner, the statistics show they are used proportionately to the terrorist population, considering the sources of the terrorist threat that travel through UK ports. Article 5 was proven to have been fairly and lawfully abided by, as the power to detain for the six hours was deemed as falling under Article 5(1)(b) ECHR as well as being as long as necessary and no longer, this therefore is not considered to have been a deprivation of liberty. The potential for Article 6 to be compatible with Schedule 7 was by majority overruled. Specifically, Schedule 7 excludes privilege against self-incrimination as it is by necessary inference abrogated by the words of the statute. Moreover, the risk of prosecution based on answers to Schedule 7 is not a real and appreciable one; in practice section 78 of the Police and Criminal Evidence Act 1984 (“PACE”) would inevitably render such evidence inadmissible.