Queen’s Bench Division (Divisional Court), Nicola Davies LJ and Jay J,  EWHC 1676 (Admin), 1 July 2022
This was an appeal by way of case stated from the Magistrates’ Court from a conviction of wilfully obstructing or seeking to frustrate a search or examination contrary to Schedule 7 para 18(1)(c) of to the Terrorism Act 2000. The Divisional Court ruled that the conviction could not stand if the decision to search or examine breached the EqA. The Court further ruled that, if there was evidence of unlawful discrimination, it would be for the Crown to satisfy the court that there was no unlawful discrimination.
The appellant, a member of the Kurdistan National Congress, had been stopped by a police officer, questioned, searched and detained for 3-4 hours and had various items of his property copied or seized including his mobile phone and laptop computer. His conviction rested on his refusal to provide his PIN and password for devices seized during the search.
The Divisional Court was satisfied on the evidence that the appellant’s political beliefs were a factor in the decision to stop him, and that it had been incumbent on the Chief Magistrate to ask whether he was sure that the police officer’s decision to stop did not represent unlawful discrimination (§34). The Chief Magistrate had erred in proceeding on the basis that, unless the search was carried out other than for the statutory purposes permitted by Schedule 7 para 18(1)(c), any discrimination would not render it unlawful.
The Divisional Court also adopted the approach of the House of Lords in Nagarajan v London Regional Transport  1 AC 501, as applied in Law Society v Bahl  IRLR 640 §83, per Elias , that “…the discriminatory reason for the conduct need not be the sole or even the principal reason for the discrimination; it is enough that it is a contributing cause in the sense of a “significant influence” (§§38-39).
The appeal failed because the Divisional Court did not accept that the search discriminated on grounds of political beliefs. Part of the difficulty resulted from the distinction between political beliefs protected by the EqA and terrorist beliefs:
- … the purpose of the stop were simply to ask questions about a person’s legitimate political beliefs or activities, rather than anything related to terrorism, the issue of unlawful discrimination should be at the forefront of the court’s concern…
- In practical terms it may be impossible to maintain a strict line of demarcation between legitimate political beliefs and terrorism as there is an obvious overlap between these matters. A police officer questioning a person for the purpose of determining whether s/he is a terrorist will wish to explore the nature and intensity of that person’s beliefs and mindset, and will not know at the outset of the questioning on which side of the line that person falls. X may have strongly held views in support of the right to self determination of a political group, nation or people. Those views may be legitimate; they may cross the line into terrorism, the only difference (and it is a critically important one) lies in the means sought to be deployed to bring about the desired objective. It is only at the end of the enquiry that the police officer will be in a position to reach any sort of conclusion within the ambit of the statutory condition.
- We accept that questions relating to an issue of legitimate political opinion will be more nuanced than, for example, questions as to race. Questions may be necessary to explore political belief which are unnecessary in a racial context. The difficulty arises here only because PC Ross sought to explore what may have been legitimate political opinion in order to determine whether or not it strayed beyond being purely a protected characteristic into the domain of potential terrorism. In our view, it would be appropriate for a police officer to enquire if the belief held represented a legitimate political belief or was a political belief which was directly relevant to a link to terrorism…
- Notwithstanding our conclusion that the Chief Magistrate erred in law … we are satisfied that had he asked the correct question he would have been permitted to find on the evidence before the court that there was no unlawful discrimination by the requesting officer as the questions asked by PC Ross were properly directed to issue of whether the appellant was a terrorist within the meaning of s.40 TA 2000 and thus would satisfy the statutory purpose set out in Sch.7.”
Appellant: Adam Straw QC and Tayyiba Bajwa, instructed by Morgan Has
Respondent: Tom Little QC, instructed by the Crown Prosecution Service