Rabbani v Director of Public Prosecutions, Court of Appeal - Administrative Court, May 15, 2018, [2018] EWHC 1156 (Admin)

Resolution Date:May 15, 2018
Issuing Organization:Administrative Court
Actores:Rabbani v Director of Public Prosecutions
 
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Neutral Citation Number: [2018] EWHC 1156 (Admin)

Case No: CO/5567/2017

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 15/05/2018

Before :

LORD JUSTICE IRWIN

MR JUSTICE FOSKETT

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Between :

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Henry Blaxland QC and Nikolaus Grubeck (instructed by Birnberg Peirce Ltd) for the Appellant

Tom Little QC (instructed by The Crown Prosecution Service) for the Respondent

Hearing dates: 3 May 2018

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Lord Justice Irwin:

Introduction

  1. This is an appeal by way of case stated by the Appellant from his conviction before the Chief Magistrate, sitting in the Westminster Magistrates' Court on 25 September 2017, for an offence of wilfully obstructing or seeking to frustrate a search or examination contrary to paragraph 18(1)(c) of Schedule 7 to the Terrorism Act 2000.

  2. On 20 November 2016, at around 6:30am the Appellant was made the subject of a Schedule 7 Terrorism Act 2000 stop and search at Terminal 4 at Heathrow Airport. The Appellant is and was the international director and managing director of the organisation CAGE, which organisation specialises in supporting and advising individuals in respect of the terrorism laws. After answering some questions, the Appellant refused to provide the PIN and password for his mobile phone and laptop computer. That refusal was the basis of his conviction.

    The Facts

  3. The Chief Magistrate gave a written judgment at the close of the prosecution case addressing three submissions on behalf of the Appellant, and then gave a further judgment at the conclusion of the hearing, on convicting the Appellant. She incorporated each into her case stated. This court is bound by the facts set out in the case stated.

  4. The judgment on conviction makes it clear that the Appellant was stopped by first one and then by a second officer. Both gave evidence to the Chief Magistrate. At the start of the process the Appellant was given a written notice which explained the examining officers' powers. As part of the stop he was asked for the PIN number and password of his mobile phone and his Apple computer. He refused to provide them, and said it was against his Article 8 rights. It was not in issue but that the Appellant, because of his occupation, was knowledgeable about the provisions of the Terrorism Act 2000 and as to his own rights under the European Convention on Human Rights.

  5. The Chief Magistrate found that the first officer who stopped the Appellant had ``only the vaguest idea of what CAGE did''. In her case stated, she ``accepted that the stop was not random, but targeted in some way''.

  6. There was a formal interview conducted by the officers who stopped the Appellant at the airport, after the Appellant had spoken to his solicitor. It may be helpful at this point to quote verbatim from the facts as set down in the judgment by the Chief Magistrate:

    ``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.

  7. 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.

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  8. 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....''

  9. The Chief Magistrate went on to point out in her ruling what the Appellant had not said:

    ``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.

  10. He was then arrested under Section 18(1) of Schedule 7 of the Terrorism Act 2000.''

  11. The judgment recites how the Appellant was later interviewed at the police station by other officers. At that stage he gave a prepared statement in which he said that he was content to comply with the request, but that the contents of the devices affected the privacy and confidentiality of others, including the fact that his work -

    ``...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. There followed correspondence between the Appellant's solicitors and police as to whether independent counsel could be appointed who could be given access to the devices, but in the event that did not take place. The Appellant was charged in May 2017.

  13. The Chief Magistrate then noted the Appellant's evidence to her. He confirmed his occupation. He was of good character and has a family with two young children. She made it explicit that she bore his good character in mind, both as diminishing the likelihood that he would commit the offence and as supporting his credibility. The Chief Magistrate went on to record his evidence as follows:

    ``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.''

  14. The Appellant confirmed in cross-examination that he had deliberately not provided the PIN numbers and password to the examining officers when, as the Chief Magistrate found, they had lawfully required him to do so.

  15. The Chief Magistrate concluded that there was ``no doubt that the Defendant obstructed the police in not giving them the requested PIN and password''. She rejected the submission on behalf of the Appellant that, since the Appellant had been asked on at least two previous occasions for his PIN and password and had declined, and had not been prosecuted, ``it could not be said it was a wilful obstruction on this occasion''. This argument was not repeated to us. The Chief Magistrate concluded that the Appellant -

    ``...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''....

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