QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE FOSKETT
| MUHAMMAD RABBANI
|- and -
|DIRECTOR OF PUBLIC PROSECUTIONS
Tom Little QC (instructed by The Crown Prosecution Service) for the Respondent
Hearing dates: 3 May 2018
Crown Copyright ©
Lord Justice Irwin:
"5. … He told the officers he had been out for three days to attend the wedding of a friend in Doha. He said the officers knew where he worked. He did not wish to give the PIN numbers as he did not think the requirement "extends to matters of personal privacy so by giving my mobile number or a password or similar, all I'm doing is violating my own privacy which I think this doesn't cover". He repeats again in the interview that it is about his own privacy. It is like handing over "my own home keys" which you would rather not do. Indeed, the importance of passwords and PIN numbers in the 21st Century cannot be overstated.
6. The Defendant went on to say that he had been stopped before when he had not given the PIN numbers and he had not been prosecuted for failing to do so.
7. The Defendant confirmed to the officers he would not give them the numbers. His main qualm he said was that there was a lot of information that had already been collected. Therefore, he thought it was a bit of a pointless exercise and unnecessary. It was disproportionate in the circumstances…."
"7. … What he did not say to them was that there was information on his devices that was excluded material. He was repeatedly told of the powers of the examining officers under the Schedule.
8. He was then arrested under Section 18(1) of Schedule 7 of the Terrorism Act 2000."
"…is in large part to do with vulnerable people who have placed their trust in him and in his colleagues. He had given the codes to his solicitor and they could be released once he had informed his family and colleagues."
"12. He explained that his reluctance to give his PIN number for the two devices comes down to the fact that he had received confidential information from a client he had seen at the wedding in Doha who was alleging he had been tortured in the United States and the information was to form the basis for the making of a complaint in that country and this one. Bearing in mind his good character I accepted this account."
"…took a risk and thought that as on earlier occasions the police would not take any further action. I accept he was trying to protect confidential material on his devices. The Defendant took a calculated risk by refusing to give the information".
"Power to stop, question and detain
2. (1) 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).
(2) This paragraph applies to a person if—
(a) he is at a port or in the border area, and
(b) the examining officer believes that the person's presence at the port or in the area is connected with his entering or leaving Great Britain or Northern Ireland.
(3) This paragraph also applies to a person on a ship or aircraft which has arrived in Great Britain or Northern Ireland.
(4) An examining officer may exercise his powers under this paragraph whether or not he has grounds for suspecting that a person falls within section 40(1)(b).
5. A person who is questioned under paragraph 2 or 3 must—
(a) give the examining officer any information in his possession which the officer requests;
(b) give the examining officer on request either a valid passport which includes a photograph or another document which establishes his identity;
(c) declare whether he has with him documents of a kind specified by the examining officer;
(d) give the examining officer on request any document which he has with him and which is of a kind specified by the officer.
6. (1) For the purposes of exercising a power under paragraph 2 or 3 an examining officer may –
(a) stop a person or vehicle;
(b) detain a person
7. For the purpose of satisfying himself whether there are any persons whom he may wish to question under paragraph 2 an examining officer may—
(a) search a ship or aircraft;
(b) search anything on a ship or aircraft;
(c) search anything which he reasonably believes has been, or is about to be, on a ship or aircraft.
8. (1) An examining officer who questions a person under paragraph 2 may, for the purpose of determining whether he falls within section 40(1)(b)—
(a) search the person;
(b) search anything which he has with him, or which belongs to him, and which is on a ship or aircraft;
(c) search anything which he has with him, or which belongs to him, and which the examining officer reasonably believes has been, or is about to be, on a ship or aircraft;
11A. (1) This paragraph applies where the examining officer is a constable.
(2) The examining officer may copy anything which –
(a) is given to the examining officer in accordance with paragraph 5,
(b) is searched or found on a search under paragraph 8, or
(c) is examined under paragraph 9.
(3)The copy may be retained—
(a) for so long as is necessary for the purpose of determining whether a person falls within section 40(1)(b),
(b) while the examining officer believes that it may be needed for use as evidence in criminal proceedings, or
(c) while the examining officer believes that it may be needed in connection with a decision by the Secretary of State whether to make a deportation order under the Immigration Act 1971.
18 (1) A person commits an offence if he—
(a) wilfully fails to comply with a duty imposed under or by virtue of this Schedule,
(b) wilfully contravenes a prohibition imposed under or by virtue of this Schedule, or
(c) wilfully obstructs, or seeks to frustrate, a search or examination under or by virtue of this Schedule."
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 other words there is no information it [the Crown] has which suggests the stop is unlawful. On the face of it, without further information from the Crown, I have no evidence to suggest that the stop was unlawful. The first submission fails".
"I find that it is not for this court to determine the correctness of the code of practice. It allows an examining officer to examine the information but cease to review information and not copy it when they have reasonable grounds for believing it is privileged, excluded or special procedure material."
It is clear that the Chief Magistrate found no basis for undermining the conviction in this point.
"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."
Ground 1: Evidence of Legality of the Stop
"(vi) the requirement to give explanatory notice to those questioned, including procedure for complaint;
(ix) the availability of judicial review; the contention of the appellant and of Liberty that judicial review would be ineffective is overstated; judicial review is available if bad faith or collateral purpose is alleged, and also via the principle of legitimate expectation where a breach of the Code of Practice or of the several restrictions listed above is in issue; courts are well used to requiring police officers to justify their actions and to drawing the correct inference if there is material to do so; use of the power for a collateral purpose, such as to investigate a non-terrorism suspected offence, would be likely to become apparent, as it did in the case of section 44: see para 41(f), (g) and (h) above."
Grounds 2 and 3: The Adequacy of the Safeguards
"Police and Criminal Evidence Act 1984 c.60
Part II POWERS OF ENTRY, SEARCH AND SEIZURE
11. Meaning of "excluded material".
(1) Subject to the following provisions of this section, in this Act "excluded material" means—
(a) personal records which a person has acquired or created in the course of any trade, business, profession or other occupation or for the purposes of any paid or unpaid office and which he holds in confidence;
(c) journalistic material which a person holds in confidence and which consists—
(i) of documents; or
(ii) of records other than documents.
(2) A person holds material other than journalistic material in confidence for the purposes of this section if he holds it subject—
(a) to an express or implied undertaking to hold it in confidence; or
(b) to a restriction on disclosure or an obligation of secrecy contained in any enactment, including an enactment contained in an Act passed after this Act.
(3) A person holds journalistic material in confidence for the purposes of this section if—
(a) he holds it subject to such an undertaking, restriction or obligation; and
(b) it has been continuously held (by one or more persons) subject to such an undertaking, restriction or obligation since it was first acquired or created for the purposes of journalism."
"40. The examining officer may copy any information obtained under paragraph 5; searched or found on a search under paragraph 8; or anything examined under paragraph 9 including electronic data (although examining officers should cease reviewing, and not copy, information which they have reasonable grounds for believing is subject to legal privilege, is excluded material or special procedure material, as defined in sections 10, 11 and 14 of the Police and Criminal Evidence Act 1984). The copies may be retained for so long as is necessary for the purpose of determining whether a person is concerned in the commission, preparation or instigation of acts of terrorism; or while the officer believes that they may be needed for use as evidence in criminal proceedings or in connection with a decision by the Secretary of State whether to make a deportation order under the Immigration Act 1971. Copies of information obtained during an examination must be managed in compliance with the requirements of Management of Police Information guidance."
On 19 January 2016, the Court of Appeal issued a judgment in David Miranda's appeal against the Secretary of State for the Home Department. The Court dismissed Mr Miranda's appeal on the facts. Mr Miranda's examination under Schedule 7 to the Terrorism Act 2000 was found to be lawful and proportionate on the facts of the case.
The Court of Appeal did find, however, that Schedule 7 as it was at the time of Mr Miranda's examination – in August 2013 – was not compliant with Article 10 of the European Convention on Human Rights (right to freedom of expression) in respect of journalistic material. In its judgment, the Court recommended that if there were an operational need to seize and examine journalistic material under Schedule 7, then a mechanism for judicial authority to do so should be introduced.
Code of Practice Amendment 2015
In 2015 – several months prior to the Miranda judgment – the Home Office amended the Code of Practice for Examining and Review Officers under Schedule 7. One of the amendments made was to include a line at paragraph 40 of the Code which states:
"examining officers should cease reviewing, and not copy, information which they have reasonable grounds for believing is subject to legal privilege, is excluded material or special procedure material, as defined in sections 10, 11 and 14 of the Police and Criminal Evidence Act 1984 (PACE)".
Section 11(1)(c) PACE includes journalistic material within the meaning of "excluded material". The line at paragraph 40 of the Code therefore directs that examining officers must not examine or copy any material they reasonably believe is journalistic material; and in cases where they have commenced examining material where they had no initial grounds for believing it was journalistic, should cease examining such material if and when they come to have such a belief. The passage in the Code was not considered by the Court in Miranda, as it was introduced after Miranda's examination took place.
As a result of this addition to the Code, anything an examining officer reasonably believes is journalistic material cannot be examined using Schedule 7."
There then follows a passage of guidance as to what is "journalistic material".
Mr Justice Foskett: