Judge dissents as terrorist's wife loses human rights breach case
One of the UK's most senior judges has raised concerns about anti-terror legislation which gives police the power to stop and question people entering or leaving Britain.
Supreme Court justice Lord Kerr said he had been given no "reasoned justification" for giving officers such powers.
His comments came in a Supreme Court ruling after the Muslim wife of a convicted terrorist claimed that her human rights had been violated when she was stopped under the terms of schedule seven of the 2000 Terrorism Act on arrival at East Midlands airport in 2011.
A panel of five Supreme Court justices today dismissed the claim by Sylvie Beghal - whose husband Djamel Beghal is in jail in France - by a majority of four to one.
The majority concluded that schedule seven powers were "proportionate" and said the questioning and searching of people arriving in the UK was "rationally connected" to preventing and detecting terrorism.
But Lord Kerr, a former Lord Chief Justice of Northern Ireland, dissented.
He said he would have allowed Mrs Beghal's appeal.
"Of course it is true that the threat of terrorism is substantial and should not be downplayed," said Lord Kerr.
"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."
He said people who failed to answer questions could be jailed and said the exercise of schedule seven powers was a significant interference with people's right to privacy - protected under article eight of the European Convention on Human Rights.
"A person stopped under this provision is required to answer questions even though they may not have had the benefit of legal advice," said Lord Kerr.
"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."
Home Office officials welcomed the Supreme Court ruling and said suggested areas for improvement would be considered.
"We welcome the Supreme Court's judgment, which states that schedule seven to the Terrorism Act 2000 is wholly compliant with the European Convention on Human Rights," said a Home Office spokesman.
"Although the court has fully supported the use of schedule seven, we will consider the suggested areas for improvement that its judgment highlighted, to ensure continued appropriate use of this essential border and ports security power."
Lawyers representing Mrs Beghal said she was "disappointed" but took comfort from Lord Kerr's "blistering attack".
They said she would appeal to the European Court.
"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," said Natalia Garcia - who works for law firm Abrahams Law.
"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."
She added: "Mrs Beghal takes comfort from the dissenting judgement of Lord Kerr in which he states he would allow the appeal, and which is a blistering attack on the legality of the schedule seven powers."
Mrs Beghal, who is French, had already lost a fight in the High Court.
Three judges had ruled against her in August 2013 - following a hearing in the High Court in London.