Guest Blog: Beghal v DPP: Schedule 7 of the Terrorism Act 2000 does not engage Article 6 ECHR. Really?

Guest Blog By Super Cyan @Super__Cyan

As already argued in my recent guest blog post I maintain that an individual stopped under Schedule 7 of the Terrorism Act 2000 is entitled to a lawyer.  This guest post concerns the case of Sylvie Beghal v Director of Public Prosecutions ([2013] EWHC 2573 (Admin)) (with excellent summaries here and here) and the engagement of Article 6 of the European Convention on Human Rights (ECHR).

The High Court dismissed an appeal by way of case stated against a conviction for wilfully failing to comply with a duty imposed under or by virtue of Schedule 7 of the Terrorism Act 2000.

The appellant was a French national, ordinarily resident in the United Kingdom, whose husband is currently in custody in France in relation to terrorist offences. On 4 January 2011 following a visit to her husband, she returned to the UK with her three children, arriving at East Midlands Airport, at around 20.05 on a flight from Paris. At the UK Borders Agency desk she was asked to remain. Officers from Leicestershire Constabulary subsequently conducted an examination under Schedule 7 (para 7).

Paragraph 8 of the judgment in Beghal sets out the material facts as following:

i)                    The appellant was not formally detained or arrested.

ii)                   She was told this and that she was not suspected of being a terrorist, she was told the police needed to speak to her to establish whether she fell within s.40(1)(b) of the Terrorism Act 2000.

iii)                 The appellant was taken into an examination room with her luggage taken into another room to be searched.

iv)                 The appellant requested to consult a lawyer and asked to have an opportunity to pray. The officers indicated she would be able to speak to her lawyer in 15 minutes.

v)                  After praying the appellant was advised she could telephone her lawyer after she had been searched.

vi)                 The appellant was then allowed to speak to her lawyer via telephone. The officers made it clear that they would not delay examination questioning pending the arrival of her lawyer.

vii)               The appellant was then questioned in the absence of her lawyer. She indicated that she would only answer questions after her lawyer arrived.

viii)              The appellant did not provide answers to most of the questions asked.

ix)                 When the examination was over the appellant was cautioned and reported for the offence of not complying with her duties under Schedule 7, by refusing to answer questions.

x)                  The appellant’s lawyer arrived after the examination had finished, but the officers did not seek to question the appellant again in the presence of her lawyer.

The appellant’s lawyer arrived 40 minutes after she was cautioned (para 9).

Article 6(1) ECHR provides that: ‘In the determination of…any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…’ while Article 6(3)(c) states that: ‘Everyone charged with a criminal offence has the following minimum rights:…(c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;’.

Article 6(2) ECHR was also relevant in this case (para 27), but it does not necessarily need to be dealt with because if Article 6 ECHR can be said to be engaged, then Article 6(2) would also apply.

Before the High Court the essential question was whether Article 6 ECHR had been engaged, and if so whether it had been violated (para 115). The High Court then considered the relevant authorities of the European Court of Human Rights (European Court) regarding Article 6’s applicability (paras 116-124). The High Court adopted Lord Hope’s observation in Ambrose v Harris ([2011] UKSC 43) where his Lordship noted in relation to the engagement of Article 6 that: ‘[A] substantive approach, rather than a formal approach, should be adopted. It should look behind the appearances and investigate the realities of the procedure in question. This suggests that the words “official notification” should not be taken literally, and that events that happened after the moment when the test is to be taken to have been satisfied may inform the answer to the question whether the position of the individual has been substantially affected.’(para 62)

In Beghal the High Court concluded ‘that the Schedule 7 examination of the Appellant did not engage Art. 6’ (para 125) because she was not suspected of being a terrorist (para 127) and the examination was not an inquiry preparatory to criminal proceedings (para 129).

This is an unsatisfactory construction of Schedule 7. The problem here is not in the High Court concluding that there was no violation of Article 6 ECHR, but with the premise that Article 6 ECHR is not engaged at all. The Grand Chamber in Imbrioscia v Switzerland (Application no. 13972/88 [1993] ECHR 56 (para 36)) noted that: ‘Certainly the primary purpose of Article 6 (art. 6) as far as criminal matters are concerned is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge”, but it does not follow that the Article (art. 6) has no application to pre-trial proceedings.’ (my emphasis)

It would seem that Eckle v Germany (Application no. 8130/78 [1982] ECHR 4 (paras 73-75)) does not apply here because there was no official notification of suspicion. But as was held in Foti v Italy (Application no. 7604/76; 7719/76; 7781/77; … [1982] ECHR 11 (paras 52-53)) what constitutes a ‘charge’ is practical measures which carry the implication of allegation which can substantially affect the situation of the suspect. This is where the claim failed, for the High Court did not agree that on the facts the appellant was substantially affected by the conduct of the police. This is where I respectfully diverge.

In Cadder v Her Majesty’s Advocate (Scotland) ([2010] UKSC 43) Lord Hope (at para 27) noted that ‘[d]etention is a form of limited or temporary apprehension on suspicion.’ Although it was pointed out to the appellant that she was not formally detained, the respondent subsequently accepted that actions interfered with Article 5 but was justified (para 113). So although the respondent did not suspect the appellant of being a terrorist, detention could be argued to imply suspicion of some sort. Lord Hope in Cadder also considered the case of Dayanan v Turkey (Application no. 7377/03 French Text [2009] ECHR 2278 (paras 31-32)) where he translated paragraph 32 as stating that an accused must have access to a lawyer from the moment he is deprived of his liberty but accepted that it appeared to go further than the Strasbourg jurisprudence (para 37). In agreeing with Lord Hope (para 106) Lord Clarke’s reasoned in light of Salduz v Turkey (Application no. 36391/02 [2008] ECHR 1542 (para 114)) that: ‘That passage also, to my mind, points to the phrases in Salduz “early access to a lawyer” and “from the first interrogation of a suspect by the police” as being references to the earliest point in time after the person is taken into custody with his liberty having been restricted by the investigating authorities. The reference by the Strasbourg court to equality of arms, at para 53 of its judgment in Salduz, also, in my opinion, supports that approach. Once a person’s liberty is curtailed by the authorities, the balance of power between him and the representatives of the state shifts significantly and, it might be said, requires to be redressed by his having access to a lawyer. (my emphasis)

Lord Clarke made it clear that this did not mean that the right starts as soon as a suspect is questioned by the police in whatever circumstances (para 115). Moreover, it was noted by Lord Clarke that the focus should be on whether, at the commencement of the proposed questioning, the individual’s liberty is significantly restricted by the police. The location where this questioning occurs is not in itself conclusive (para 122).This would strongly suggest that a deprivation of liberty should bring about the engagement of Article 6 ECHR.

In relation to the actual questioning, Lord Hope held that it is not necessary, if access to a lawyer is needed for the right to a fair trial to remain practical and effective that the questioning should amount to an “interrogation” in the formal sense. It need not be a detailed and sustained course of questioning. Questions that the police need to put simply in order to decide what action to take with respect to the person whom they are interviewing are unlikely to fall into this category. But they are likely to do so when the police have reason to think that they may well elicit an incriminating response from him (para 65). Given that the appellant was asked about ‘[h]er relationship with her husband, given his imprisonment for acts of terrorism’ that may well have been the case.

In Rumen Georgiev v Bulgaria (Application no. 27240/04 [2010] ECHR 1507 (para 24) the European Court found that the applicant’s situation was “substantially affected” and he could be considered as subject to a “charge” from the moment when he was questioned by the police and confessed to the theft. Though this line of reasoning included a confession, the European Court in Howarth v United Kingdom (Application no. 38081/97 [2000] ECHR 423 (para 20) noted that the proceedings began when the applicant was first interviewed.

The significance of Aleksandr Zaichenko v Russia (Application no. 39660/02 [2010] ECHR 185) should also not go unnoticed. The European Court noted that not being accused of a criminal offence can still substantially affect the situation of individuals (para 43). Also, the European Court (at para 47) accepted that the situation of the applicant differed from previous authority ‘because the applicant was not formally arrested or interrogated in police custody. He was stopped for a road check.’ Yet the European Court still found a violation of Article 6 (para 60) because the incriminating conduct of the appellant led to a conviction. Zaichenko is also relevant to the point regarding to what might be imposed on a suspect, the European Court held that although the applicant was not free to leave, there was no significant curtailment of the applicant’s freedom of action, which could be sufficient for activating a requirement for legal assistance already at this stage of the proceedings (para 48). What curtailing freedom of action actually means for the present purposes is not certain (para 161). Similarities can be drawn between Zaichenko and Sylvie Beghal as their conduct resulted in a conviction and in Zaichenko, Article 6 ECHR had been engaged because the European Court found a violation.

 

Conclusion

The above discussion is not intended to resolve the question of whether there was a violation of Article 6 ECHR in Sylvie Beghal’s case but to stress that it should have been engaged. The notion that the appellant’s situation was not substantially affected appears to be flawed. The fact that the appellant in the present case was convicted because of her conduct quite simply should have been enough to attract the protection of Article 6 ECHR. The fact that the High Court accepted the seriousness of the situation the appellant faced (para 126), the interference with her liberty, separation from two of her children and the fact that her belongings were searched should have added weight to the High Court’s conclusion that she was ‘charged’ for the purposes of Article 6 ECHR which can be supplemented with authority from Zaichenko which pointed out that an allegation is not necessarily always required to satisfy the substantially affected criterion. Whether or not criminal proceedings ensue is not a satisfactory way to be of the opinion that Article 6 ECHR should not be engaged, because retrospectively this may work against the authorities as they were under no obligation to comply with the ECHR in the first place and because they did not, it resulted in a violation.

This judgment appears to be short-sighted, because the UK government is seeking to amend Schedule 7 with a view to include whether at a port or at a police station an individual can consult a solicitor. But if Article 6 ECHR is not engaged for the purposes of Schedule 7, when an officer refuses to allow a solicitor by way of delay, the UK government would not be required to justify this. This would significantly weaken the procedural protections of Article 6 ECHR. Furthermore, the Grand Chamber in Salduz v Turkey (Application no. 36391/02 [2008] ECHR 1542 (para 55)) stressed that Article 6(1) requires that, as a rule to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction, whatever the justification, must not unduly prejudice the rights of the accused under Article 6. This right would irretrievably be prejudiced if incriminating statements made during police interrogation without access to a lawyer were used for a conviction. The Grand Chamber made very clear that not only reasons must be given, but they must be compelling, and even if they were this would not guarantee that the Court would not find violation. And so to avoid future complications (which it no doubt would) the High Court should have accepted that Article 6 ECHR was engaged. However the High Court proceeded on an alternative basis and the merits of that decision are a matter for another day.