Authored by Tony Dawson via TheCritic.co.uk,
Tommy Robinson (also known as Stephen Lennon) was last week acquitted of an offence contrary to schedule 7 of the Terrorism Act 2000. Robinson had been accused of breaching the criminal law after he failed to provide the PIN access code to his mobile.
He had been stopped by the police on 28 July 2024 having approached the Channel Tunnel at Folkestone.
The decision by District Judge Sam Goozée is a welcome push back against a draconian and easily abused power.
To explain, Schedule 7, paragraph 2(1) provides that:
An examining officer may question a person to whom this paragraph applies for the purpose of determining whether he appears to be a person falling within section 40(1)(b).
Section 40(1)(b) details that a terrorist is a person “concerned in the commission, preparation or instigation of acts of terrorism”. The power may be exercised at a port or border area where a person is entering or leaving Great Britain or Northern Ireland.
Paragraph 18 of Schedule 7 then goes on to create an offence of contravening an obligation under the Schedule and gives a maximum penalty of 3 months imprisonment.
What makes the power unusual is that an officer is not required to have reasonable suspicion before questioning a suspect, as would normally be the case. Section 24 of the Police and Criminal Evidence Act 1984 conversely, for instance, requires that an officer must have “reasonable grounds for suspecting” that an offence has been committed and may arrest a person whom he suspects being guilty of it. The lack of a reasonable suspicion requirement in Schedule 7 gives police officers immensely broad powers with a great potential for abuse.
Further, a person who has been stopped is not entitled to the right to silence. Beghal v DPP [2015] UKSC 49 determined that privilege would not apply to the process as its ultimate purpose was not to gather information prior to charge. If evidence was to be used, it might be excluded under section 78 of the Police and Criminal Evidence Act. Of course, in practice, evidence may be used and a judge may decide against excluding it. As Lord Kerr observed in a dissenting judgment:
There is, currently, no guarantee that someone who gives a self-incriminating answer in the course of a Schedule 7 inquiry will not be confronted by those answers in a subsequent criminal trial. He may succeed in having evidence of those answers excluded but he cannot ensure that he will not be prosecuted on foot of them. I consider therefore that the requirement in Schedule 7 that a person questioned under its provisions must answer on pain of prosecution for failing to do so is in breach of that person’s common law privilege against self-incrimination.
Some recent cases give good examples of the use to which the police put their powers. @AkkadSecretary, as known on X, posted a video on YouTube describing a stop when he returned from the United States on 28 January 2025. He was detained, given access to a lawyer before his interview, but not during it, and was forced to reveal the passwords to his devices so that the police could access them. He was asked about his opinions on Russia and the war on Ukraine. He was further asked about what he thought about the UK and its policies and the West in general. The police kept his devices, so that he was forced to buy a new train ticket, as he only had his previous ticket on his phone. In his video, he cited further instances where stops were made, including in the cases of Paul Golding and Lauren Southern.
There have, however, been instances where the courts have constrained the powers. In R (on the application of Miranda) v Secretary of State for the Home Department [2016] EWCA Civ 6, the Court of Appeal found that the use of the power when stopping and questioning David Miranda, the since deceased husband of Glenn Greenwald, had been contrary to Article 10 of the European Convention on Human Rights (ECHR) since Miranda was holding material which was designed to assist his husband’s journalism. The Court of Appeal made its determination since there were no adequate safeguards against the arbitrary use of the Schedule 7 powers. The Code of Practice on the use of Schedule 7 was since amended to take journalism into account.
Beghal v United Kingdom (app no 4755/16) in the European Court of Human Rights (ECtHR) also showed a stronger position against schedule 7. The applicant, Sylvie Beghal, was a French national resident in the UK. She was held and questioned for 9 hours at East Midlands airport after she returned from visiting her husband in France, who was serving a prison sentence on a terrorism offence. The ECtHR found that the combination of the long period under which a person could be detained, the lack of safeguards, the lack of presence of a lawyer, lack of reasonable suspicion and the ability to compel answers to questions together meant that there was a violation of Article 8 (private life) of the ECHR. In practice, since the 9 hour term of detention had been reduced, the UK could argue that there was further control, so Beghal has not had a significant impact on the use of schedule 7. The judgment did not find that lack of reasonable suspicion or self-incrimination per se marked breaches of the Convention.
In Cifci v CPS [2022] EWHC 1676 (Admin) established that a person could not be convicted of an offence under schedule 7 unless the decision to stop was lawful and that a stop would be unlawful if it constituted unlawful discrimination contrary to the Equality Act 2010. The High Court said that two questions should be asked:
(i) was the purpose of the stop for the statutory purpose set out in para 2(1) of Sch.7? and (ii) did the appellant’s protected characteristics have a significant influence on the decision to stop? These are separate questions and each must be asked.
In Cifci, however, the appellant had not been subjected to unlawful discrimination and the stop was therefore lawful.
The police have elsewhere conceded that their use of powers were unlawful. In 2024, a French activist was stopped under the powers and asked whether he had taken part in anti-government protests and whether he backed President Macron. He was awarded substantial damages after he brought a claim for misfeasance in public office and false imprisonment.
It is against this background that Tommy Robinson was acquitted. The law has developed safeguards, albeit limited ones, to prevent searches from being arbitrary. As controversial as Robinson is, due to his connection with the now disbanded English Defence League, his previous convictions and his strong criticism of Islam, schedule 7 is designed for a specific purpose and must be exercised within that purpose in a non-discriminatory way.
District Judge Sam Goozée described the events surrounding the stop and detention. PC Thorogood Robinson recognised Robinson as Robinson approached the police booth driving alone in a Bentley. The selection decision was made after 34 seconds. The officers described Robinson’s behaviour as being suspicious, that he was stopped because he was not the registered driver of the vehicle and that he was travelling a long distance to Benidorm on short notice. There were unexplained delays when Robinson was stopped. The total delay before detention appeared to be 40 minutes.
District Judge Sam Goozée found that the stop itself did not fulfil the statutory purpose under the Terrorism Act. The officers involved had vague recollections of the events leading to Robinson’s stop and of the questions asked. Robinson had been stopped primarily because of who he was, rather than under selection criteria.
Moreover, the stop had also related to Robinson’s beliefs, as protected under the Equality Act. The officers might have attempted to justify their actions by asking questions linked to political activities and the possibility of links terrorism. Yet, the lack of recollection meant that the stop was discriminatory.
The authorities will doubtlessly argue that schedule 7 provides a useful means through which the police can gather evidence on suspicious persons potentially linked with terrorist activity and that there should be some flexibility in how it is applied; and, indeed, Cifci, on the Equality Act, has the potential to cause numerous problems if police become too restrained in making stops based on the political or religious beliefs of suspicious persons at borders. The use of the power, though, has most certainly been abused. Figures have been stopped merely for fishing expeditions based on views that diverge from the centre. As such, it will be a welcome development if the police are more cautious in exercising their powers in the future.
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