Full case report

Miranda v Secretary of State for the Home Department

Reference [2014] EWHC 255 (Admin)
Court High Court (Divisional Court)

Judge Lord Justice Laws, Ouseley & Openshaw JJ

Date of Judgment 19 Feb 2014


Summary

Terrorism Act 2000 Schedule 7 – journalistic material


Facts

C was a Brazilian citizen and the spouse of Glenn Greenwald, a journalist who at the material time was working for the Guardian newspaper. Earlier in 2012, G had been provided with encrypted data stolen from the National Security Agency (NSA) of the United States by Mr Edward Snowden. On 12 August 2013, C travelled from Rio de Janeiro to Berlin, while carrying encrypted material derived from the data provided by Mr Snowden, to collect computer drives containing further material. C did so in order to assist in the journalistic activity of G.

The UK Security Service, having become aware of C’s movements, issued a Port Circulation Sheet (PCS) to counter-terrorism police officers, indicating that C was likely to be involved in espionage activity which had the potential to act against the interests of UK national security and requesting them that they establish the nature of C’s activity, assess the risk that C posed to UK national security and mitigate as appropriate. Several PCSs were issued, but only the final PCS requested that C be examined under Schedule 7 of the Terrorism Act 2000 (“the 2000 Act”). Paragraph 2(1) of Schedule 7 allows a person – present at a port or in the border area – to be detained for up to nine hours in order to establish whether they appear to be a person falling within section 40(1)(b) of the 2000 Act, i.e. a  person who is or had been concerned in the commission, preparation or instigation of acts of terrorism.

At 08:05 on 18 August 2013, C was stopped at Heathrow, on his way back to Rio de Janeiro. According to the witness statement of the Deputy National Security Adviser for Intelligence, Security and Resilience in the Cabinet office, the encrypted data on the external hard drive taken from C contained approximately 58,000 highly classified UK intelligence documents, many of which were classified as SECRET or TOP SECRET.

C applied for judicial review papers of the Defendants’ acts. C argued that the use of the Schedule 7 powers against him on 18 August 2013 was unlawful for three reasons (see ‘Issue’ below).


Issue

  1. Whether, on the facts of the case, the power conferred by paragraph 2(1) of Schedule 7 to the 2000 Act allowed the police to stop C on 18 August 2013.
  2. If so, whether the use of the power was nevertheless disproportionate to any legitimate aim
  3. Whether upon its true construction, the paragraph 2(1) power was repugnant to the right of freedom of expression guaranteed by Article 10 of the ECHR.

Held

Dismissing the application for judicial review:

1.    The purpose of the stop fell properly within Schedule 7 to the 2000 Act.

Laws LJ, giving the leading judgment, set out his reasoning in two stages:

(a)  The purpose in fact

A public authority’s action would be lawful provided that the permitted purpose was the true and dominant purpose behind the act, notwithstanding any other advantage gained, R v Southwark Crown Court ex p. Bowles [1998] AC 641 considered. In deciding what the dominant purpose had been, the Court was not limited to considering the examining officers’ subjective state of mind. Given the context of the 2000 Act – the possible apprehension of terrorism – Parliament must have enacted Schedule 7 in the knowledge that there might be very good reasons why the examining officers (who might, as here, be very junior in rank) should not be privy to the whole story. In a case like this, the primary evidence for the determination of the stop’s purpose was likely to be the terms of the instructions given to the examining officers: here, in effect, the last PCS. The purpose of the stop, therefore, was to ascertain the nature of the material which the claimant was carrying and if on examination it proved to be as was feared, to neutralise the effects of its release (or further release).

(b)  The purpose in law

The proper exercise of the Schedule 7 power did not require that the examining officer have any grounds whatsoever for suspecting that a person was connected with terrorism per s.40(1)(b). The purpose of Schedule 7 was not to determine whether the subject was, but only whether he appeared to be a terrorist. However, there are important constraints on the use of the Schedule 7 power:  the power must be exercised upon some reasoned basis, proportionately and in good faith. Putting these features together, the Schedule 7 power was given by Parliament in order to provide a reasonable but limited opportunity for the ascertainment of a possibility: the possibility that a traveller at a port may be concerned, directly or indirectly, in any of a range of terrorist activities enumerated in section 1(2) of the 2000 Act.

Section 1(2) was capable of covering the publication or threatened publication of stolen classified information which, if published, would reveal personal details of members of the armed forces or security and intelligence agencies, thereby endangering their lives where that publication or threatened publication was designed to influence government policy on the activities of the security and intelligence agencies. Consequently, the purpose of the stop fell properly within the true construction of Schedule 7.

2.    The Schedule 7 stop was a proportionate measure in the circumstances:

C was not a journalist and the stolen GCHQ intelligence material he had been carrying was not ‘journalistic material’, or if it was, only in the weakest sense. On the other hand, as C had been acting in support of G’s activities as a journalist, the Schedule 7 stop constituted an indirect interference with press freedom. Such an interference was justified by compelling evidence, namely:

  • There was no reason to doubt the evidence of Mr Robbins (Deputy National Security Adviser for Intelligence, Security and Resilience, Cabinet Office) that release or compromise of such data would be likely to cause very great damage to security interests and possible loss of life.  As regards risk to life, it was of particular importance that the material contained personal information that would allow staff to be identified, including those deployed overseas. Much of C’s evidence, in contrast, was found to be unhelpful, without any perceptible foundation and not capable of putting Mr Robbins’s evidence in doubt.
  • There was no question of a source being revealed, although Laws LJ accepted there was some force in the Interveners’ submission as to the potential discouragement of future journalistic source who may not elect to waive their anonymity.
  • The fact that the material was stolen, although it did not exclude the law’s intervention to protect free speech, went in the scales in favour of the Defendants.
  • Obtaining the material under Schedule 5 of the 2000 Act, as C submitted should have been done instead, would have been pointless and ineffective.
  • The objective of the Schedule 7 stop was not only a legitimate measure in the circumstances, but also a pressing imperative. On the facts of this case, the balance between two aspects of the public interest: press freedom itself on one hand, and national security on the other. was plainly in favour of the latter.

3.    Schedule 7 of the 2000 Act did not offend Article 10. Schedule 7 met the requirement of Article 10(2) that a restriction of free expression had to be prescribed by law.

 The Schedule 7 powers were not over-broad and arbitrary. The High Court had previously held Schedule 7 to be compatible with Article 8 in Beghal [2013] EWHC 2573, which was correct and relevant. The exercise of Schedule 7 powers was subject to cumulative statutory limitations: Schedule 7 was only applicable to a limited category of people, for the purpose specified in paragraph 2(1) and, although principally exercised by police officers, the powers under Schedule 7 were an aspect of port and border control rather than of a criminal investigation.

C’s argument that, at least in cases touching journalistic freedom, Article 10 would be violated for want of any provision for prior judicial scrutiny in Schedule 7, was incorrect. The various European Court of Human Rights judgments relied on by C did not support such an absolute rule.


Comment

This decision has been met with mixed reactions. C has already indicated his intention to appeal whilst others, namely the three NGO interveners, have issued statements to the effect that “[t]he court has failed to recognise that David Miranda and other journalists have played a crucial role in uncovering an international system of state surveillance that encompasses the entire world and is arguably unlawful. This would not have come to light without them. Their journalism deserves protection, and this judgment fails to provide it”.


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Instructing Solicitors

Bindmans LLP for the Claimant, The Treasury Solicitor for the 1st Defendant, The Directorate of Legal Services for the 2nd Defendant,