B e f o r e :
LORD JUSTICE IRWIN MR JUSTICE FOSKETT ____________________
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Henry Blaxland QC and Nikolaus Grubeck (instructed by Birnberg Peirce Ltd) for the Appellant Tom Little QC (instructed by The Crown Prosecution Service) for the Respondent Hearing dates: 3 May 2018 ____________________
HTML VERSION OF JUDGMENT APPROVED ____________________
Crown Copyright ©
Lord Justice Irwin:
Introduction
This is an appeal by way of case stated by the Appellant from his conviction before the Chief Magistrate, sitting in the Westminster Magistrates' Court on 25 September 2017, for an offence of wilfully obstructing or seeking to frustrate a search or examination contrary to paragraph 18(1)(c) of Schedule 7 to the Terrorism Act 2000.
On 20 November 2016, at around 6:30am the Appellant was made the subject of a Schedule 7 Terrorism Act 2000 stop and search at Terminal 4 at Heathrow Airport. The Appellant is and was the international director and managing director of the organisation CAGE, which organisation specialises in supporting and advising individuals in respect of the terrorism laws. After answering some questions, the Appellant refused to provide the PIN and password for his mobile phone and laptop computer. That refusal was the basis of his conviction.
The Facts
The Chief Magistrate gave a written judgment at the close of the prosecution case addressing three submissions on behalf of the Appellant, and then gave a further judgment at the conclusion of the hearing, on convicting the Appellant. She incorporated each into her case stated. This court is bound by the facts set out in the case stated.
The judgment on conviction makes it clear that the Appellant was stopped by first one and then by a second officer. Both gave evidence to the Chief Magistrate. At the start of the process the Appellant was given a written notice which explained the examining officers' powers. As part of the stop he was asked for the PIN number and password of his mobile phone and his Apple computer. He refused to provide them, and said it was against his Article 8 rights. It was not in issue but that the Appellant, because of his occupation, was knowledgeable about the provisions of the Terrorism Act 2000 and as to his own rights under the European Convention on Human Rights.
The Chief Magistrate found that the first officer who stopped the Appellant had "only the vaguest idea of what CAGE did". In her case stated, she "accepted that the stop was not random, but targeted in some way".
There was a formal interview conducted by the officers who stopped the Appellant at the airport, after the Appellant had spoken to his solicitor. It may be helpful at this point to quote verbatim from the facts as set down in the judgment by the Chief Magistrate:
The Chief Magistrate went on to point out in her ruling what the Appellant had not said:
The judgment recites how the Appellant was later interviewed at the police station by other officers. At that stage he gave a prepared statement in which he said that he was content to comply with the request, but that the contents of the devices affected the privacy and confidentiality of others, including the fact that his work –
There followed correspondence between the Appellant's solicitors and police as to whether independent counsel could be appointed who could be given access to the devices, but in the event that did not take place. The Appellant was charged in May 2017.
The Chief Magistrate then noted the Appellant's evidence to her. He confirmed his occupation. He was of good character and has a family with two young children. She made it explicit that she bore his good character in mind, both as diminishing the likelihood that he would commit the offence and as supporting his credibility. The Chief Magistrate went on to record his evidence as follows:
The Appellant confirmed in cross-examination that he had deliberately not provided the PIN numbers and password to the examining officers when, as the Chief Magistrate found, they had lawfully required him to do so.
The Chief Magistrate concluded that there was "no doubt that the Defendant obstructed the police in not giving them the requested PIN and password". She rejected the submission on behalf of the Appellant that, since the Appellant had been asked on at least two previous occasions for his PIN and password and had declined, and had not been prosecuted, "it could not be said it was a wilful obstruction on this occasion". This argument was not repeated to us. The Chief Magistrate concluded that the Appellant –
In my view, therefore, the factual position here is very clear. Although the Chief Magistrate accepted that the Appellant had acted as he did so as to protect the information of others, he did not say so at the time. Indeed, he never said so until after the offence (if it was an offence) was complete and he was arrested. On the contrary, at the time he told the examining officers that he was seeking to protect his own privacy. At no stage during the relevant period did the Appellant mention the confidentiality of others, or material relevant to journalism, or material protected under other legislation. The submissions of both parties must be examined against that factual backdrop.
The Statute
The relevant provisions of Schedule 7 to the Terrorism Act 2000 are as follows:
The Grounds
Three questions were asked of the High Court by the Appellant. They are:
i) Whether, in considering whether the offence under paragraph 18(2) Schedule 7 Terrorism Act 2000 has been proved, the prosecution is required to adduce evidence relevant to the legality of the decision to stop and examine a person under Schedule 7.
ii) Whether the Code of Practice for Examining Officers and Review Officers under Schedule 7 Terrorism Act 2000 contains sufficient safeguards to preserve the right to confidentiality of material held by a person who has been stopped in the exercise of the powers under Schedule 7.
iii) Whether the offence could be committed where the defendant failed to permit access to confidential material and no procedure was yet in place to allow independent inspection of the material.
In addressing the first ground, which was in substance the first of the three submissions made to the Chief Magistrate at the close of the Crown case, she concluded that the Crown had indicated there was no further disclosure which it was obliged to make in the light of the defence case. There was nothing known which would either support the defence case, or undermine the prosecution case:
In response to the second submission concerning the code of practice, the Chief Magistrate once again made a relevant ruling at the close of the prosecution case. She said:
It is clear that the Chief Magistrate found no basis for undermining the conviction in this point.
The third ground reads as follows:
It is clear from the passages already quoted from her final ruling that, although the Chief Magistrate accepted the Appellant was protecting confidential material, he never said so before his offence was complete and his arrest had taken place. It is clear that she considered any question of independent inspection of the material to be an afterthought and irrelevant to the conviction.
I turn to consider the grounds advanced in turn.
Ground 1: Evidence of Legality of the Stop
Mr Blaxland began by stressing that the Schedule 7 powers are summary, and intrusive. As the Supreme Court made clear in Beghal v DPP [2016] AC 88 , the powers represent an interference with private life, and must be exercised both lawfully and proportionately: see the judgment of Lord Hughes, at paragraphs 7, 30 to 33 and 43. There must be sufficient safeguards in place to ensure that the power is not exercised arbitrarily. For those reasons, and on general principles, the legality of the stop must be established by the Crown in any prosecution. Mr Blaxland laid particular emphasis on two of the safeguards enumerated by Lord Hughes in paragraph 43:
Mr Blaxland submitted that there was a burden on the Crown in any such case to call evidence to establish the legality of the stop. He submitted that had not been done here. If the search was random, then the legality might be established simply by evidence that the individual conducting the stop was authorised under the Act to exercise the power, and that he or she was doing so within the general purposes of the statute. However where the search was not random, as here, Mr Blaxland submitted that more was required, to demonstrate that the search was not "arbitrary". If there was information or intelligence which could not be communicated to the defendant, then the Court should convene a closed or ex parte hearing, and the interests of the defendant could be safeguarded by the instruction of a special advocate to protect his interests.
In support of this proposition, Mr Blaxland cited the case of R v H [2004] 2 AC 134 , [2004] UKHL 3 , where the House of Lords contemplated "in an exceptional case" the appointment of a special advocate to consider an application for public interest immunity from the disclosure of relevant information.
Mr Tom Little QC for the Crown responded to these submissions in a number of ways. There was no special need to call evidence to establish the legality of the stop. The officers were acting in the execution of duty. There had been no submission of abuse of process before the Chief Magistrate. There was no evidence from the defence which raised a question of illegality of the stop, or even raised a concern which might have called for an answer. There had of course been evidence of the lawful use of the power, in the sense that the powers were exercised by police officers authorised to do so, and exercised for the statutory purpose. There was no call for more evidence. It was illogical for a random search to be regarded as lawful (as Mr Blaxland accepted such a search would be) if a search which was not random called for an explanation in evidence before it could be lawful. The extent of the powers, their lawful basis and the proportionality of the powers were all made clear by the Supreme Court in Beghal.
Moreover, it could not be the intention of Parliament that intelligence should have to be communicated, even in summary form, before the powers of stop and search could be exercised. That was clearly not practical and would frustrate the powers.
Further, the suggestion of a closed hearing with special counsel to resolve this issue was quite untenable. In R v H the House of Lords had contemplated the appointment of special counsel in public interest immunity hearings only as an exceptional measure. The context there was the sensitivity of material sought to be withheld from the proceedings. That was entirely different from a closed hearing in criminal proceedings within which the Crown would establish a necessary ingredient of proving the case.
In my judgment, this Ground fails and fails clearly. There was no basis on which the legality of the stop or the request for the PIN and password was called into question. There was the basic evidence from the officers as I have indicated. I see no basis for a requirement for more.
Further, in the absence of some specific factors being advanced, I can see no logic to the proposition that a random exercise of the powers of stop and search would be lawful, but an exercise of the powers based on intelligence or knowledge of the individual would be unlawful without some evidence of the material which prompted the stop.
As to the suggestion of a closed hearing, in my judgment that is clearly misconceived. The House of Lords in R v H contemplated representation by special counsel only as an exceptional measure in PII hearings and in the rare case even then. And the context of R v H is entirely different from this case, for the reasons given by Mr Little. Moreover, the Supreme Court made clear in Al Rawi and Others v The Security Service and Others [2011] UKSC 34 [2012] 1 AC 5313, it is Parliament alone which could introduce a closed material procedure: that cannot be done by the Court as an exercise of the inherent jurisdiction. That decision led to the Justice and Security Act 2013, which did introduce such procedures, but only in civil proceedings and under very strict pre-conditions and conditions.
Grounds 2 and 3: The Adequacy of the Safeguards
Before I move to consider the submissions advanced, it is helpful to remind myself that we are considering a conviction, not dealing with a judicial review or an application for a declaration of incompatibility with the European Convention of Human Rights. There can be no challenge here to the provisions of the Schedule. This Court cannot opine on the adequacy of policy or drafting of the Code of Practice. This is a criminal appeal.
It is also worth pointing out two further things. The Appellant could have sought to appeal his conviction to the Crown Court. Such an appeal would have proceeded by way of re-hearing, and the Appellant, if he had chosen to do so, could have given fuller evidence of all the relevant events. Secondly, the Appellant did issue, and then withdrew, judicial review proceedings arising out of these events. He has had the opportunity to deploy one of the key safeguards expressly mentioned by Lord Hughes in Beghal but, no doubt after careful consideration, has chosen not to carry on with that course.
On these two linked questions, or Grounds, Mr Blaxland began by citing the well-known case of R (Miranda) v Secretary of State for the Home Department [2016] EWCA Civ 6 , [2016] 1 WLR 1505 . That case concerned the exercise of Schedule 7 powers in relation to the husband of a journalist Mr Glenn Greenwald, who was carrying journalistic materials belonging to Mr Greenwald when he, Mr Miranda, was stopped at Heathrow Airport. The case turned on the suggested incompatibility of the Schedule 7 powers with Article 10 of the ECHR. The matter is dealt with in the judgment of Lord Dyson MR (with whom Richards and Floyd LJJ agreed), the relevant paragraphs being 94 to 118.
It is not necessary for me to traverse that judgment in any detail. The reasoning is clearly focussed on journalistic material and on Article 10. Lord Dyson's conclusion is that the constraints on the exercise of the powers "do not afford effective protection of journalistic rights" (paragraph 113). Lord Dyson observed that such material has better protection under "other legal regimes", citing sections 11 to 14 of the Police and Criminal Evidence Act 1984 (PACE), where "journalistic material" falls within the categories of "special procedure material" or "excluded material", and similar protections arise in Schedule 5 to the Terrorism Act 2000 (judgment, paragraphs 116 and 117).
Mr Blaxland took us to the relevant provisions of PACE affecting search and seizure:
Some months before the Supreme Court judgment in Miranda , the Home Office Code of Practice governing Schedule 7 was amended. The relevant amended passage reads:
After the judgment in Miranda , the National Police Chief's Council issued " New Guidance on Schedule 7 Code of Practice ". This addressed the same concerns in slightly different language, explicitly responding to Miranda :
There then follows a passage of guidance as to what is "journalistic material".
It is finally relevant to record that the explanatory leaflet which was given to the Appellant makes no mention of journalistic material, confidential material garnered in the course of any trade, business or profession, "excluded" material or "special procedure material". A copy of the leaflet was before us.
All of that forms the background to Mr Blaxland's submissions. He says that, if by means of the leaflet or otherwise, the categories of material which would not be examined or copied had been explained to the Appellant, then he might very well have agreed to provide the PIN and password to the devices. He submits that without such explanation the relevant safeguards are insufficient. He equates journalistic material with the other forms of excluded material and special procedure material: there is "no meaningful distinction" between them. The logic of Miranda should extend to the other categories of document, and without similar safeguards as those applied to journalistic material, the Schedule 7 powers "are not compatible with Article 8 ECHR". For that reason, the conviction should be quashed.
In my view there are a number of insuperable problems about this sequence of points. Firstly, the Miranda decision was centred expressly and narrowly on Article 10 and freedom of expression for journalists. It is by no means self-evident that identical (or even similar) considerations arise in respect of other categories of excluded or special procedure material.
Secondly, there is no question of a declaration of incompatibility here: there has been no such application.
Thirdly, any discrepancy of detail between the language of the pre- Miranda and post- Miranda guidance was not for the Chief Magistrate (as she observed) and is not for this Court. Such an issue might possibly have been raised in a judicial review, if that had been pursued. However, unless such a discrepancy can be shown to have affected the conviction here, it is not relevant to this appeal.
Critically, the Appellant did not raise any question of material containing confidential information gathered in the course of a business or profession until after the obstruction was complete. There has never been any question of this being journalistic material. The assertion of confidentiality by the Appellant was never more than that. The officers never had any sight of this material to verify the assertion. Nor did the Chief Magistrate. She simply accepted the Appellant's evidence on the point, bearing in mind his good character. There was no evidence before her as to how much of the content of the devices was the confidential material of others, or whether it was in a separate file or folder, severable from the rest of the relevant memory.
The evidence here is clear, as I have said. The Appellant at the relevant time was not merely silent about excluded or special procedure material. He made the positive assertion that he was refusing access to protect his own privacy: "my own home keys", "all I'm doing is violating my own privacy which I think this doesn't cover".
In my view there is no reason in either Question 2 or 3, or in the submissions advanced, however eloquently, by Mr Blaxland, to affect the validity of this conviction. The Chief Magistrate made no error of law. I would dismiss this appeal.
Mr Justice Foskett:
I agree.