Case Note: R (Miranda) v Secretary of State for the Home Department [2016] EWCA Civ 6

Posted on 19th Jan 2016 in Case Comment

A transcript of the Court of Appeal’s judgment in R (Miranda) v SSHD [2016] EWCA Civ 6 can be found here. [Hat tip to @RichGreenhill for nudging me that the transcript was available on BAILII].

Facts

David Miranda was stopped and detained by police at Heathrow airport in August 2013 under para 2(1) of Schedule 7 to the Terrorism Act 2000.

Paragraph 2(1) provides:

(1) An examining officer may question a person to whom this paragraph applies for the purpose of determining whether he appears to be a person falling within section 40(1)(b).
(2) This paragraph applies to a person if–
(a) he is at a port or in the border area, and
(b) the examining officer believes that the person’s presence at the port or in the area is connected with his entering or leaving Great Britain or Northern Ireland or his travelling by air within Great Britain or within Northern Ireland.
(3) This paragraph also applies to a person on a ship or aircraft which has arrived [at any place in Great Britain or Northern Ireland (whether from within or outside Great Britain or Northern Ireland).
(4) An examining officer may exercise his powers under this paragraph whether or not he has grounds for suspecting that a person falls within section 40(1)(b).

Miranda was questioned about various items in his possession and various items were taken from him, including encrypted data derived from material acquired by Edward Snowden from the NSA. That material included US intelligence, some of which formed the basis of articles published in the Guardian in June 2013. Miranda was carrying the material in order to assist his partner, Glenn Greenwald, in his journalistic activity.

First instance decision in the Divisional Court

In R (Miranda) v Secretary of State for the Home Department [2014] EWHC 255 (Admin); [2014] 1 WLR 3140,  DC, Miranda challenged his detention in the Divisional Court by way of a claim for judicial review on the grounds that:

(1)    the use of the Schedule 7 powers had been for an improper purpose, the dominant purpose being to seize the material in his possession rather than to determine whether he appeared to be a person falling within section 40(1)(b) ;
(2)     the use of the powers was a disproportionate interference with his right to protection of journalistic expression; and
(3)    the Schedule 7 powers, being exercisable without prior judicial scrutiny, were incompatible with the right to freedom of expression guaranteed by article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms

The Divisional Court dismissed his claim for judicial review holding that:

(1)    When deciding whether an officer had acted for the statutory purpose of determining whether a person appeared to fall within section 40(1)(b) of the Terrorism Act 2000 , as required by paragraph 2(1) of Schedule 7 to the 2000 Act, the court was not limited to a consideration of the officer’s subjective state of mind and that the purpose of the, inferred from the port circulation sheet considered in the light of the prior national security justification note, had been to ascertain the nature of the material which the claimant was carrying and, if on examination it proved to be as feared, to neutralise the effects of its release or dissemination.
(2)    The section 1 definition of “terrorism” was capable of covering the actual or threatened publication, for the purpose of advancing a political, religious, racial or ideological cause, 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 such publication was designed to influence government policy or the activities of the security and intelligence agencies; and that, accordingly, in all the circumstances, the purpose of the stop fell properly within paragraph 2(1) of Schedule 7.
(3)    Notwithstanding that  Miranda  was not a journalist the Schedule 7 stop constituted an indirect interference with the right to press freedom, as protected by the common law, since Miranda was acting in support of his Greenwald’s activities as a journalist; but that, in all the circumstances, which included that there was no question of a source being revealed and that the material had been stolen, the stop was a proportionate means of achieving a legitimate objective, namely the protection of national security.
(4)    The power in paragraph 2(1) of Schedule 7 to the 2000 Act was not over-broad or arbitrary and its exercise was therefore “prescribed by law” for the purposes of article 10(2) of the Convention; that the European Court of Human Rights had not developed an absolute rule that state interference with journalistic freedom had to be subject to prior judicial scrutiny; and that, accordingly, Schedule 7 to the 2000 Act was not incompatible with article 10 of the Convention.

Today’s decision in the Court of Appeal (Civil Division)

Miranda appealed to the Court of Appeal (Civil Division) against the dismissal of his claim on the grounds that:

(1)    the stop power had been exercised against him for a purpose not permitted by the 2000 Act;
(2)    the use of the stop power was in breach of article 10 of the Convention; and
(3)    the use of the stop power was incompatible with article 10 in so far as it related to journalistic material.

Allowing the appeal in part, the Master of the Rolls, giving the judgment of the court held:

(1)   It did not follow that the publication of material could not amount to an act of terrorism. If (i) the material that is published endangers a person’s life (other than that of the person committing the action) or creates a serious risk to the health or safety of the public or a section of the public; and (ii) the person publishing the material intends it to have that effect (or is reckless as to whether or not it has that effect), then the publication is an act of terrorism, provided, of course, that the conditions stated in section 1(1)(b) and (c) of the 2000 Act were satisfied. (see para 55 of the judgment). Note: there is a question as to whether the Court of Appeal’s definition of “terrorism”, which is narrower than that adopted by the Divisional Court and argued for by the government, is ratio.  It will be particularly interesting to see if, in the event of appeal to the Supreme Court, this narrower formulation is approved.
(2)    The police exercised the power for a permitted purpose and were entitled to consider that the material in Miranda’s possession might be released in circumstances falling within the definition of terrorism: there was sufficient justification for the exercise of the stop power.  (see paras 25-37, 57, 58 of the judgment)
(3)    The stop power was not exercised in a way that amounted to an unjustified and disproportionate interference with Miranda’ article 10 rights despite the fact that this case involved an interference with press freedom: compelling national security interests outweighed Miranda’s article 10 rights. (see paras 59-93 of the judgment)

But, crucially…

(4)    The stop power, if used in respect of journalistic information or material is incompatible with article 10 because it is not “prescribed by law” as required by article 10(2). The stop power is not subject to sufficient safeguards to avoid the risk that it would be used arbitrarily. Accordingly, a certificate of incompatibility would be granted.

It is for Parliament to decide how to provide such a safeguard, the most obvious solution in the opinion of the court would be some form of judicial or otherwise independent oversight.

 

Daniel Hoadley, Barrister