High Court imposes protections against the discriminatory use of Schedule 7 Terrorism Act

Judgment was handed down by the Divisional Court today in Cifci v Crown Prosecution Service [2022] EWHC 1676 (Admin) an important ruling on the interaction between the prohibition on discrimination in the Equality Act 2010 and Article 14 ECHR and the power to stop and detain pursuant to Schedule 7 Terrorism Act 2000. The Divisional Court upheld the Appellant’s argument that, to convict a person for an offence of obstructing a schedule 7 stop, the criminal court must be sure that the stop was not discriminatory. 

Adam Straw QC and Tayyiba Bajwa were instructed by Ali Has and Bilal Tanveer at Morgan Has solicitors, on behalf of the Appellant. 

This was an appeal by case stated arising from Mr Cifci’s conviction for an offence of wilfully obstructing or seeking to frustrate a search or examination contrary to para. 18(1)(c) of Schedule 7.

Mr Cifci is a member of the Kurdistan National Congress (“KNC”).  On 19 March 2020 at St Pancras International he was stopped by a police officer, questioned, searched and detained for 3-4 hours and various items of his property were copied or seized pursuant to Sch.7 including his mobile phone and laptop computer. He refused to provide the PIN and password for his devices which resulted in him being charged and later convicted of an offence pursuant to para.18(1)(c). Mr Cifci argued that the decision to stop him was discriminatory, because his protected characteristic (political belief) had a substantial influence on the decision. 

In an ex tempore judgment the Chief Magistrate concluded that a stop pursuant to Schedule 7 was lawful if it was for the Sch.7 statutory purpose and that discrimination was relevant only if it showed that the stop was not for the statutory purpose. Applying that reasoning he concluded that the stop had been for the statutory purpose and Mr Cifci was convicted. 

The Divisional Court ruled that the Chief Magistrate erred in law. The Court found that Schedule 7 powers are “broad and intrusive” and that a decision to search and examine will not be lawful if it represents unlawful discrimination.  If there is evidence of unlawful discrimination, then it is for the Crown to satisfy the court so that it is sure, that there was no unlawful discrimination before a conviction may be imposed. For discrimination to be made out, it is sufficient that the defendant’s protected characteristic had a significant influence on the decision, even if it was not the main purpose for the decision. 

As such, in cases where the issue of discrimination has been raised, there are two separate questions that the Court must ask: 

  • was the purpose of the stop the Schedule 7 statutory purpose? 
  • did the appellant’s protected characteristic have a significant influence on the decision to stop?

Although ultimately the case stated was dismissed on the facts because it was open to the Chief Magistrate to find that there had not been unlawful discrimination, this decision represents an important statement of principle in relation to the use of Schedule 7 powers. The April 2022 report of the Independent Reviewer of Terrorism Legislation observed that only 18% of those examined pursuant to Schedule 7 identify as white, 65% of those examined self-identify as mixed, black, Asian, Chinese or other. Discrimination in the use of Schedule 7 powers remains a live issue and the Divisional Court has today confirmed that where such powers are exercised in a discriminatory matter; individuals who refuse to comply may not be subject to a criminal conviction pursuant to Schedule 7 as a result of that refusal.