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09 December 2014

The Counter-Terrorism and Securities Bill causes fears for journalistic freedom: lessons from Miranda

6 mins

This is the seventh Counter- Terrorism and Securities Bill in 14 years and sets out a number of proposals which are of extreme concern to Human Rights, in particular Articles 3,5,8,10,13 and 14. This Bill contains sweeping powers to the police and the Executive with little or no judicial oversight. For example the Home Secretary can temporarily exclude individuals from the UK for up to 2 years on the basis of “reasonable suspicion” and a police officer at a port or border can seize a passport for up to 30 days.

The Bill contains:

  • Passport seizure at ports and borders;
  • Exclusion Orders, preventing the temporary return of those suspected of terrorist activities, thus ensuring that those suspected of terrorism –related offences are potentially subject to detention in countries with some of the worst records of human rights abuses and torture;
  • “No Fly “ lists for categories of passengers- the Home Secretary can forbid airlines to carry whole categories of passengers (defined on broad grounds such as nationality);
  • TPIM reforms which bring us back to the dark days of the highly criticised control orders;
  • A statutory duty on public bodies to prevent terrorism as part of their function;
  • Data retention powers, amending DRIPA which was rushed through in August 2014 giving the Home Secretary sweeping powers to retain “relevant internet data” and causing great concerns with regards to privacy;
  • The proposed  criminal offence of paying ransoms from insurance to kidnappers;
  • An amendment to RIPA allowing the warrantless interception of post.

Given the experience with the Miranda case, arguably the greatest concern to those working in the media due to their vulnerability at a port or border and the potential limitation on free speech and journalistic freedoms is passport seizure.

In August 2013 David Miranda, the partner of political journalist Glenn Greenwald, who disclosed the Ed Snowden material exposing mass surveillance by NSA and GCHQ,  was detained for 9 hours at Heathrow Airport under Schedule 7 of the Terrorism Act 2002. His property, including journalistic material, was seized and he was questioned. This action was the subject of a judicial review and, in November 2013, the High Court held that the use of terrorism powers to detain and question him and seize journalistic material was lawful. Permission to appeal has been granted and the appeal is likely to be heard in Spring 2015.

The latest Counter-Terrorism and Securities Bill allows a passport to be seized for up to 30 days. A police officer (or immigration officer or Customs and Excise officer directed by police) can seize an individual’s passport if he has reasonable grounds to believe travel is for the purpose of terrorist-related activity. This is subject to a senior officer’s review after 72 hrs and after 14 days a magistrates’ court can authorise further extension for up to 30 days. The magistrates’ court can hear evidence in secret.

The starting point and the major area of concern when any counter terrorism powers are introduced is the broad definition of terrorism. S40 of the Terrorism Act 2000 defines terrorists as those concerned in the commission, preparation or instigation of acts of terrorism. The powers are so widely drawn they include preparatory acts as such as facilitating, providing support or assistance to those concerned in terrorism. Terrorism includes the use or threat of action where:

  • the use or threat is designed to influence the government and
  • the use or threat is made for the purpose of advancing a political, religious or ideological cause and
  • the action creates a serious risk to the health or safety of the public

In October 2013 The Supreme Court in Gul approved the broad definition of terrorism, but, in doing so, stated that “serious consideration” should be given to reducing the width of the statutory definition of terrorism. Concerns about the broad definition were clearly set out in David Anderson QC’s, the Independent Reviewer of Terrorism, July 2014 review. When commenting on David Miranda’s detention and the November High Court ruling he stated:

in holding that it was legitimate to use terrorism laws for that purpose, the High Court made it clear that under the current law, political journalism aimed at influencing the Government can be an act of terrorism when it endangers life or creates a serious risk to health or safety.

David Anderson QC highlighted that the implication of this ruling is that Britain’s laws treat politically motivated publication of material thought to endanger life or to create a serious risk to the health or safety of the public as a terrorist act if it was done for the purpose of influencing the Government. Unlike other European or Commonwealth countries there is no requirement of an “intention to coerce or intimidate”. The threshold is therefore a lot lower.   David Anderson QC goes on to state that “this means political journalists and bloggers are subject to the full range of anti-terrorism powers if they threaten to publish, prepare to publish something that the authorities think may be dangerous to life, public health or public safety.” In the Miranda case we raised the prospect that this definition and the low threshold creates “accidental terrorists” and David Anderson QC reiterates this point in his review:

This means that political journalists and bloggers are subject to the full range of anti-terrorism powers if they threaten to publish, prepare to publish or publish something that the authorities think may be dangerous to life, to public health or public safety. That is so even if they do not wish to spread fear or to intimidate – it is enough that their work is designed to influence the Government or an international organisation. Those who employ or support them, or who encourage others to do the same, could also qualify as terrorists.

Political journalists could be branded as terrorists, and those who support them, even if they have no intention to spread fear or intimidate. It is the Government’s and agents of the Government’s interpretation of the preparatory work, the publication or proposed publication that results in such activity being labelled as terrorism.

In Gul, the Supreme Court held that the protection from this broad definition is in the role of the DPP and the DPPs discretion not to prosecute.  But this is no protection to those who face detention under Schedule 7, where not even individual suspicion is required and now, under this new Bill, to those who face the prospect of having their passports removed and refused entry to the UK. A passport can be seized by a police officer for up to 72 hours on the basis of reasonable suspicion. If it is not handed over, this is an arrestable offence. Although one would expect that it would be highly unlikely that such far reaching terrorism powers would be used against a political journalist, the detention of David Miranda and the High Court ruling highlight how such powers could potentially be used in this way.

The new Bill authorises a number of draconian measures that require no judicial oversight or testing of the evidence. Just reasonable suspicion on the basis of a police officer or the Home Secretary.  The powers are at great risk of being misinterpreted, used in a discriminatory way and are worryingly chilling to journalistic freedom.

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