Stop Powers under the Terrorism Act 2000 incompatible with Article 10

21 January 2016 by David Scott

David Miranda -v- Secretary of State for the Home Department  [2016] EWCA Civ 6 – read judgment.

On Tuesday the Court of Appeal handed down its judgment on David Miranda’s detention under the Terrorism Act 2000 and, while upholding the lawfulness of the detention in the immediate case, ruled that the stop powers under Schedule 7 of the Terrorism Act lack sufficient legal safeguards to be in line with Article 10.

by David Scott

See RightsInfo’s coverage here. For our coverage of the High Court’s previous decision see here, and on his original detention here and here.

The Case

Mr Miranda, the spouse of then-Guardian journalist Glenn Greenwald, was stopped and detained by the Metropolitan Police at Heathrow Airport on 18 August 2013 under paragraph 2(1) of Schedule 7 of the Terrorism Act 2000. He was questioned and items in his possession were taken by police, including encrypted material provided by Edward Snowden. Mr Miranda was detained for nine hours, the maximum period permitted at the time (since reduced to six hours).

Mr Miranda argued that the acts of the police were unlawful because the stop power was exercised for a purpose not permitted by the statute; its use was in breach of article 10; and the use of the power is incompatible with article 10, at any rate in relation to journalistic material. His appeal in the immediate case was dismissed. The Court of Appeal
departed from the High Court’s literal interpretation of the definition of terrorism, finding that Parliament must have intended for there to be a mental element to the definition of terrorism – in other words, that there had to be an intent, or recklessness as to whether such an effect would be caused, to endanger a person’s life to constitute an act of terrorism (at paragraphs 53 and 54). Nevertheless, publication of material could still amount to an act of
terrorism, so long as the outcome of publication met the test of section 1(1) of the Terrorism Act 2000: namely, if the material was intended, or reckless as to whether its publication would, endanger a person’s life or create a serious risk to the health or safety of the public; if the person publishing the material intends it to influence the government or an international governmental organisation or to intimidate the public or a section of the public; and is for the  purpose of advancing inter alia a political or ideological cause (at paragraph 55). In the present case the police were entitled to consider that material in his possession might be released in circumstances falling within the definition of terrorism, and this possibility was sufficient to justify detention (at paragraphs 57 and 58). This was, the court noted, “quite a low level” bar, but held that Mr Miranda’s case was within Parliament’s intentions for the Terrorism Act.

The court further rejected that the use of the stop power against Mr Miranda was an unjustified and disproportionate interference with his right to freedom of expression as a journalist, as the compelling national security interests outweighed Mr Miranda’s article 10 rights. While holding that the detaining authorities should have known Mr Miranda’s material “was or might have been journalistic material” (at paragraph 67), there was no reason to disagree with the claims of the government that the material seized contained information that posed a risk to national security. It was noted that challenging such an assessment was “very difficult…in a court of law” (paragraph 82), but the potential harm of the material far outweighed any journalistic rights.

The Certificate of Incompatibility

In the final section of the judgment, however, the court considered whether the stop power, if used in respect of journalistic information or material, failed to be “prescribed by law” as required by Article 10(2). Liberty, as interveners to the case, argued five principles could be derived from Strasbourg jurisprudence on this point (all with reference to the Grand Chamber decision of Sanoma Uitgevers v the Netherlands) The court repeated these submissions at paragraph 100:

First, the protection of journalistic sources must be attended with legal procedural safeguards commensurate with the importance of the article 10 principle at stake…Secondly, first and foremost among these safeguards is the guarantee of review by a judge or other independent and impartial decision-making body of any requirement that a journalist hand over material concerning a confidential source…Thirdly, the judge or other independent and impartial body must be in a position to carry out the exercise of weighing the potential risks and respective interests prior to disclosure. The decision to be taken should be governed by clear criteria…Fourthly, the exercise of an independent review that takes place only after the handing over of material capable of revealing such sources would undermine the very essence of the right to confidentiality and cannot therefore constitute a legal procedural safeguard commensurate with the rights protected by article 10…Fifthly, however, in urgent cases, where it is impracticable for the authorities to provide elaborate reasons, an independent review carried out at the very least prior to the access and use of obtained materials should be sufficient to determine whether any issue of confidentiality arises, and if so, whether the public interest invoked by the investigating authorities outweighs the general public interest in source protection.

While the present case did not concern disclosure of a journalist’s source, the court could find “no reason in principle for drawing a distinction between disclosure of journalistic material simpliciter and disclosure of journalistic material which may identify a confidential source” (paragraph 107). As it would be impractical to assume an average journalist would be able to obtain an emergency interim injuction upon detention under Schedule 7, and judicial review after the fact could not restore the confidentiality of sources or material, there were inadequate legal safeguards to avoid the risk that it will be exercised arbitrarily. The stop powers under Schedule 7 were therefore incompatible with Article 10. The Court noted that, while Strasbourg has not developed an “absolute” rule of judicial scrutiny for such cases, some form of judicial or other independent and impartial scrutiny conducted in such a way as to protect the confidentiality in the material was considered the “natural and obvious safeguard against the unlawful exercise of…Schedule 7” (paragraph 114). The decision of how such safeguards would be implemented would be left to Parliament.

Analysis

In the wake of the decision the Home Office commented that:

In 2015 we changed the code of practice for examining officers to instruct them not to examine journalistic material at all. This goes above and beyond the court’s recommendations in this case.

So perhaps legislative change won’t be needed after all. But journalists and activists will nonetheless celebrate this case as a victory over restrictions on critical free speech. The court noted the importance of the principles before it (at paragraph 113):

The central concern is that disclosure of journalistic material (whether or not it involves the identification of a journalist’s source) undermines the confidentiality that is inherent in such material and which is necessary to avoid the chilling effect of disclosure and to protect article 10 rights. If journalists and their sources can have no expectation of confidentiality, they may decide against providing information on sensitive matters of public interest. That is why the confidentiality of such information is so important.

But how happy will the Government be over another legislative “win” for human rights? Considering some had already cited Mr Miranda’s case as justification for more anti-terror legislation, this decision may still have important implications for the future.

This blog post was amended on 21 January 2016 to correct an error in the original summary of the court’s judgment.
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