Supreme Court justice makes ‘blistering attack’ on police power to stop and question under Terrorism Act

Lord Kerr

A justice of the UK Supreme Court has raised concerns about UK anti-terror laws that give police the power to stop and question people leaving or entering the country.

Lord Kerr said there was no “reasoned justification” for giving the police these powers.

The dissenting judge made the comment in a case in which a Muslim woman, whose husband was a convicted terrorist, claimed her human rights had been breached after she was stopped by police upon arrival at East Midlands airport in 2011 under the authority of schedule seven of the Terrorism Act 2000.

President of the Supreme Court Lord Neuberger, sitting with Lord Kerr,Lord Dyson, Lord Hughes and Lord Hodge dismissed Sylvie Beghal’sclaim by a majority of 4-1.

The majority stated the schedule seven powers were “proportionate” and that searching and questioning people who arrived in the country was “rationally connected” to tackling terrorism.

However, Lord Kerr said he would have allowed the appeal.

He said: “Of course it is true that the threat of terrorism is substantial and should not be downplayed.

“But that undoubted truth should not mask or distort the obligation to dispassionately examine the aptness of measures taken to deal with it.

“If they are to be seen as no more than necessary, the powers under schedule seven must be capable of withstanding scrutiny of their rationale.

“In my view, no reasoned justification has been proffered for investing examining officers with a power to stop, search, question and detain anyone passing through a port and for making those who refuse to answer questions amenable to the criminal law.”

Lord Kerr added that people who did not answer questions might be jailed and said the use of powers under schedule seven was a substantial interference with people’s article 8 right to privacy under the European Convention on Human Rights.

He added: “A person stopped under this provision is required to answer questions even though they may not have had the benefit of legal advice.

“Individuals may have many reasons why they do not want to answer questions as to their movements and activities. These reasons are not necessarily or invariably discreditable. Some may be apprehensive about answering questions without a lawyer being present or may lack a full understanding of the significance of refusing to answer.

“The fact that they are open to criminal sanction, which could include imprisonment, for failing to answer questions, renders the exercise of these powers a significant interference with Article 8 rights, in my opinion.”

Lawyers for Mrs Beghal said that although she was disappointed with the outcome she took comfort from the justice’s “blistering attack” and that she would appeal to Strasbourg.

Natalia Garcia, of Abrahams Law, said: “This is the first case in which the question of whether schedule seven is compatible with fundamental rights has been considered.

“Mrs Beghal is disappointed that the court found no incompatibility and will be appealing to the European Court.

“The police did not suspect Mrs Beghal of any crime yet they held her at the airport and questioned her with no right to have a solicitor present and no right to silence.

“She had her children with her when she arrived including a small infant, and said she would not answer any questions until her solicitor arrived.

“Refusal to answer questions under schedule seven in any circumstances is a criminal offence to which no defence is allowed in law.”

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