Court of Appeal to decide approach to minimum disclosure in national security cases and whether a person stopped under Schedule 7 terrorism powers has the right to know why
The Court of Appeal (Civil Division) has granted permission to appeal on an “important point of principle” and novel point of law concerning the minimum disclosure required by the right to a fair hearing where the police exercise suspicion-less powers of stop, detention, and seizure and download of electronic devices under Schedule 7 of the Terrorism Act 2000 in the case of R (Fahad Ansari) v Chief Constable of North Wales and SSHD. The case also raises an important point of law on the approach in national security sensitive cases to the minimum disclosure standard set out in SSHD v AF (No. 3) [2010] 2 AC 269 (often referred to as “AF (No. 3) disclosure”).
The Appellant is a practising solicitor specialising in national security cases, including the recent Supreme Court judgment in N3 v SSHD [2025] 2 WLR 386. He was stopped and detained at a port by counter-terrorism police, who seized, downloaded and copied his work mobile phone containing privileged material.
In ongoing judicial review proceedings, the Appellant has contended he was unlawfully stopped and detained, the download of his device was neither proportionate nor necessary, relevant protections for privileged material are inadequate, and the power to download and copy electronic devices under Schedule 7 without suspicion does not have sufficient safeguards and foreseeability to be “in accordance with the law.” The police have refused to disclose to the Appellant, even in general terms or by gisting, any reason for the stop or download of his mobile phone. That material has only been made available to the court in CLOSED proceedings from which the Appellant is excluded.
In a preliminary ruling on a point of law, the Administrative Court held that the Appellant was not entitled to any disclosure under the AF (No. 3) disclosure standard. The judge rejected any "sliding scale" or "spectrum of disclosure", holding there was a stark dividing line, and the interference to rights occasioned by the powers exercised under Schedule 7 were similar to a search warrant, which did not attract the protection of minimum disclosure in AF (No. 3).
The Appellant applied to stay the judicial review proceedings in the lower court and applied for permission to appeal against the decision of the judge that he was not entitled to any disclosure under AF (No. 3). By his appeal, the Appellant argues:
Schedule 7 is one of the most intrusive powers available to police officers and represents the possibility of “serious invasions of personal liberty”: Gul [2014] AC 1260 at §64. By exercise of those powers, a police officer can detain a person without reason. A police officer may impose obligations on a person to answer questions, provide information, comply with detention and permit access to electronic devices and retention of their data. Absent compliance, a person may be detained, prosecuted and is liable to a term of up to 3 months’ imprisonment. The officer is not required to have formed any reasonable suspicion or belief the person subjected to these coercive powers is or might be a terrorist. No judicial authorisation or input is required at any stage.
The Supreme Court had previously, in Beghal [2015] UKSC 49, endorsed judicial review as a method by which police action in this context could be challenged and scrutinised. This allowed the Supreme Court to find that the power of a stop under Schedule 7 was subject to sufficient safeguards to be lawful. Effective judicial scrutiny requires a fair hearing where an allegation can be met, and this requires minimum disclosure.
The Appellant is here unable to challenge or scrutinise any purported justification or allegation for his stop. He is therefore unable to have a fair hearing or meaningfully plead the grounds of his claim for judicial review.
The lower court was wrong to reject a flexible approach and spectrum of disclosure, which has been endorsed by higher courts on previous occasions.
The lower court was wrong to compare the intrusion occasioned by Schedule 7 powers to a search warrant. A search warrant under PACE contains stringent safeguards including judicial pre-authorisation, reasonable suspicion of a criminal offence, evidence on oath by a police officer, the relevance of material is pre-determined by a judge, and further limitations under statute. By contrast, no judicial authorisation is required for the exercise of the powers of detention or seizure under Schedule 7 of the 2000 Act. No reasonable suspicion is required. The nature of the intrusion to fundamental rights by the executive or police officers is therefore a greater interference than that of a search warrant.
Schedule 7 powers can give rise to an interference with the liberty of an individual (as in the Appellant’s case), to which AF (No. 3) disclosure has classically applied.
The Court of Appeal has stayed the judicial review proceedings in the lower court and now granted permission to appeal to decide these issues of law. The Court of Appeal will decide whether the AF (No. 3) disclosure standard is applied by a stark dividing line depending on the nature of the right concerned, or involves a spectrum of disclosure according to the circumstances of the case. The appeal also raises, for the first time, whether AF (No. 3) disclosure is required where Schedule 7 of the 2000 Act is used to stop and detain travellers, or seize and download their mobile phone.
The Appellant’s case has attracted general public interest, including international Press attention, and a communication from five mandates of United Nations Special Rapporteurs to the UK Government expressing concern about the targeting of the Appellant and the possible chilling effect this may have on the work of lawyers.
Rabah Kherbane and Drishti Suri are instructed by Megan Phillips, Erica San and Aoibhin Spriggs at Bhatt Murphy.
