David Miranda Judgment: A Devastating Blow to Freedom of Expression

David Miranda with his partner Glenn Greenwald, left (Photo: RICARDO MORAES/REUTERS, telegraph.co.uk)
David Miranda with his partner Glenn Greenwald, left (Photo: RICARDO MORAES/REUTERS, telegraph.co.uk)

Introduction

On 18 August 2013, David Miranda was arrested and detained at Heathrow airport for nine hours whilst counter terrorism officers interrogated him and rifled through his personal belongings.  He was detained under Schedule 7 of the Terrorism Act 2000 (TA 2000). This permits an ‘examining officer’ to question a person at any port or border area for the purpose of determining whether the subject ‘is or has been concerned in the commission, preparation or instigation of acts of terrorism’ (s40(1)(b) Terrorism Act).

However, Mr Miranda was not detained under Schedule 7 because of fears he might be involved in acts of terrorism but because he possessed 58,000 highly classified UK intelligence files, the release of which would prove politically embarrassing. Nevertheless, last week, in a devastating blow to freedom of expression, the High Court ruled that Mr Miranda’s detention had been lawful.

The Judgment

The claimant argued that the use of Schedule 7 to detain him was unlawful for three reasons:

  • Firstly, the powers were exercised for an improper purpose not permitted under the statute.
  • Secondly, their use constituted a disproportionate interference with his right to freedom of expression.
  • Thirdly, Schedule 7 is incompatible with Article 10 ECHR.

In his leading judgment, Laws LJ rejected these arguments and dismissed the claimant’s application for judicial review.

1)      Improper Purpose

The claimant’s first argument was that Schedule 7 had been used for an improper purpose. His stop, he claimed, was conducted for two purposes. (1) To assist the security service in accessing the material in his possession. (2) To determine whether he appeared to be a person ‘concerned in the commission, preparation or instigation of acts of terrorism’ (statutory purpose). The prior, unlawful purpose was argued to be the dominant purpose for his stop (para 20).

Laws LJ first considered the purpose for which these powers were used in fact. He endorsed the rule in ex p Bowles [1998] UKHL 16 that an action will be lawful provided the permitted statutory purpose is the ‘true and dominant purpose’ behind the act. However, in deciding whether a statutory purpose is made out, the court is not limited to a consideration of the examining officers’ subjective state of mind (para 21). Quite often the examining officer will not be privy to the whole story. It may well be someone else who determines whether a subject falls within s40(1)(b).  Nor is an examining officer required to have any grounds for suspecting a claimant. Therefore, the primary evidence for the purpose of the stop is likely to be the final PCS (Port Circulation Sheet- document providing information to counter-terrorism officers) (para 22).

Laws LJ concludes that here the purpose of the stop in fact was ‘to ascertain the nature of the material which the claimant was carrying and…to neutralise the effects of its release (or further release) or dissemination’ (para 27). He unconvincingly bases this conclusion on the final PCS, despite conceding earlier that the PCS may give a false or distorted picture (para 22). The fact that this PCS was drafted unsuccessfully twice before and on the final attempt simply copies the wording of s1 TA 2000 raises some concerns as to the reliability of this document. Laws LJ also stresses that the authorisation process prior to the stop demonstrates that the authorities only authorised the stop after satisfying themselves that it would be justified under Schedule 7 (para 23). However, such authorisation also lacks credibility as DI Woodford (who made the final decision to conduct the stop) simply gave his authorisation after a telephone call in which the terms of the final PCS were read out (para 12).

Turning to the purpose in law, Laws LJ swiftly concludes that the purpose of the stop was lawful under Schedule 7. In doing so he refers to the various constraints placed on the use of Schedule 7 including that the power be exercised on a ‘reasoned basis’ and that detention is limited to nine hours (para 31). Such ‘constraints’ are likely to be of little comfort to those wrongly detained under this law.

2)      Disproportionate interference with freedom of expression

The claimant’s second argument was that the use of Schedule 7 against him constituted a disproportionate interference with his right to freedom of expression. As part of this argument the claimant cites the proportionality principle in Bank Mellat [2013] UKSC 39 which added a fourth requirement that a fair balance is struck between individual rights and community interests. However, Laws LJ quickly dismissed this principle arguing that measuring such a balance is ‘a political question to be decided by the elected arm of government’ (para 40).

Laws LJ then outlines the difference between free expression in general and its sub-class, journalistic expression. ‘The former is a right which belongs to every individual for his own sake. But the latter is given to serve the public at large’ (para 46). Therefore, when considering the protection of journalistic expression the correct balance is not between a private and public interest but between two aspects of public interest. Here these interests are press freedom and national security (para 73).

Next, Laws LJ considered the witness statements on behalf of the claimant. In particular he focused on the witness statement of journalist Mr Greenwald who outlined the practice of ‘responsible journalism’ when dealing with sensitive information. This practice included using highly experienced journalists and legal experts as well as experienced editors and reporters (para 33).

However, Laws LJ was unimpressed with this account, labelling it ‘insubstantial’ and saying it leaves readers in the dark as to how ‘highly experienced journalists’ are able to know what may and may not be published without endangering life or security (para 58). Such sensitive information may be part of a ‘jigsaw’ of intelligence to which a journalist does not have access. ‘The constitutional responsibility for the protection of national security lies with the elected government’ (para 71). He concluded that although the Schedule 7 stop of Mr Miranda was an ‘indirect interference with press freedom’ it was proportionate in the circumstances (para 72).

However, whilst journalists may not have a constitutional responsibility for the protection of national security, they do have an obligation to report the news, regardless of whether that news is to the government’s liking. They must of course act responsibly when dealing with sensitive material but surely we must trust journalists to act responsibly when dealing with such information, rather than prevent them from reporting on such matters at all. Particularly concerning is the reference which Laws LJ makes to the so called ‘jigsaw’ argument in this part of his judgment. The ease with which the government could silence important reporting on national security issues by claiming that innocuous sources were part of a crucial ‘jigsaw’ of intelligence, is truly frightening.

3) Schedule 7 is incompatible with Article 10 ECHR

The final argument put forward on behalf of the claimant was that Schedule 7 is incompatible with the protection of freedom of expression under article 10 ECHR. It was submitted that Schedule 7 is over-broad and arbitrary and lacks effective safeguards against misuse. Therefore, it does not meet the requirement in article 10(2) ECHR that any restriction to freedom of expression is ‘prescribed by law’.

Laws LJ swiftly dismissed the claimant’s first argument that Schedule 7 falls foul of article 10(2) ECHR because it lacks legal certainty. Rather than follow Gillan and Quinton v UK (2010) 50 EHRR 45 in which the ECtHR ruled that stop and search powers (s44 TA 2000) were incompatible with article 8 ECHR because they lacked legal certainty, he instead decided to follow the case of Beghal [2013] EWHC 2573. In this case the High Court distinguished stop and search powers from Schedule 7. Whilst stop and search powers were potentially exercisable anywhere in the jurisdiction, Schedule 7 was limited to those at a port or border area and could not be compared with generalised powers of stop and search (Beghal, para 91). Therefore, Schedule 7, unlike s44 TA 2000, did not breach article 8 ECHR.

However, the decision by Laws LJ to follow this ruling here is wholly unconvincing and does not properly answer the claimant’s argument. Just because Schedule 7 is more certain than s44 TA 2000 does not mean it is sufficiently certain to comply with article 10(2) ECHR.

Finally, Laws LJ dismissed the claimant’s argument that Schedule 7 lacked adequate safeguards against misuse. The ECtHR has not developed an absolute rule of prior judicial scrutiny for cases involving State interference with journalistic freedom (para 88). Furthermore, there are already important constraints (e.g. proportionality) placed on Schedule 7 which provide adequate safeguards against misuse.

 Conclusion

This judgment is a devastating blow to freedom of expression in the UK and is part of a growing and worrying trend in which the government can now silence its critics  by simply uttering the words ‘national security’.

To read the judgment in full please click here

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