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06 November 2013

High Court to hear Miranda press freedoms challenge

8 mins

At 10.30am today, 6 November, David Miranda’s judicial review case will be heard by a three-judge court. He is challenging the use of controversial counter-terrorism powers to detain, search and take confidential materials from him at Heathrow Airport on 18 August 2013.

A coalition of ten media and free speech organisations have intervened to express their concerns about the heavy-handed use of anti-terror powers against journalists, and the signals it sends to other nations who regard the UK as a beacon of democracy and free speech.

David Miranda, the partner of journalist Glenn Greenwald, was carrying sensitive journalistic material relating to the NSA whistle-blower Edward Snowden’s disclosures when he was stopped and questioned for nine hours by Metropolitan police officers acting under the directions of the Security Service. 

Gwendolen Morgan, solicitor for Mr Miranda, said: “This unprecedented use of Schedule 7 to detain our client must be seen against the important investigative journalism with which he was assisting. These publications have revealed to the world the covert surveillance of millions of ordinary citizens, businesses, and world leaders alike. The public have a right to know the extent to which various secret services monitor what they previously thought were private emails, phone calls or online profiles.

The Supreme Court, the Joint Committee on Human Rights and the Independent Police Complaints Commission have all expressed concerns about the extraordinary breadth and lack of safeguards within Schedule 7. The facts of this case starkly demonstrate why those concerns are well-founded.

The revelations of mass surveillance are embarrassing for the UK Government, and the information is sensitive, but to ride roughshod over fundamental constitutional freedoms and ‘shoot the messenger’ is to perpetrate a further injustice to a public who have the right not to be kept in the dark.” 

During the substantive hearing on 6 and 7 November, a three-judge Divisional Court will consider whether the use of Schedule 7 of the Terrorism Act 2000 was lawful or whether, as is submitted by Mr Miranda, they were using the power for an improper purpose and in breach of Mr Miranda’s rights.

As set out in Mr Miranda’s Skeleton Argument for the hearing, “The fact that Schedule 7 powers may be exercised without reasonable suspicion against an individual carrying journalistic material will have an inevitable chilling effect on journalistic expression. In recognition of the importance of imparting information across borders, Article 10 [of the European Convention on Human Rights] expressly states that the right to free expression shall exist ‘without interference by public authority and regardless of frontiers’. The potential for Schedule 7 to be used against journalists without any prior judicial oversight and without any consideration of the special status of journalistic material significantly erodes that protection.”

Anna Mazzola, solicitor on Mr Miranda’s legal team, said:

“Even on the Government’s own case, they did not believe Mr Miranda to be a terrorist and they did not reasonably suspect him of any offence. Despite that, they used counter-terror powers to stop, search and obtain confidential journalistic material from him. We are asking the Court to look very carefully at what the police and Security Services did on and in the lead-up to 18 August, and to decide upon whether they were justified in circumventing the procedures that usually have to be followed. If they find in the Government’s favour, it will send a worrying message as to the protections that the UK affords to journalists and those working with them.”

Kate Goold, Mr Miranda’s criminal solicitor added: “The evidence filed by the Government focusses on the threat supposedly posed by Mr Miranda and the materials he was carrying. However, as Mr Miranda states in his witness statement, none of the questions the police asked him on 18 August were directed to finding out whether he was involved in acts of terrorism. Rather they appeared primarily concerned with gaining access to whatever material he had in his possession. This gives a clear indication that he was stopped for an ulterior motive.”

In his witness statement filed with the Court, Mr Miranda said:

“It may well be the case that those in positions of authority in the UK, or elsewhere are unhappy that journalists have access to the Snowden material and are publishing stories based on careful selections from it. I am aware from my work alongside the journalists that those authorities do not want any aspect of the Snowden material to be made public. I also appreciate that there will be some who agree with that view. But there are many others who feel strongly that careful, responsible selections of information can and should be properly published in the public interest.

However, that debate is an entirely different matter from whether the work of journalists in that regard, or of those assisting them, could be terrorism, or could properly justify the use of counter terrorism powers.

I believe the Schedule 7 powers were wrongly used against me and I hope this Court will make that clear. If the authorities are allowed to use counter-terrorist powers in this way the chilling effect on freedom of expression both in the UK and around the world is substantial. The important and essential part of the democratic process served by journalists publishing sensitive public interest stories, will be attacked and curtailed by use of ‘counter terrorist’ powers.”

In his statement to the Court, Glenn Greenwald said:

“The most serious and problematic aspect of the Defendants’ response to this claim is their equating of publishing articles based on sensitive national security material with acts of terrorism. As one of the journalists involved in such publications, I emphatically reject that characterisation of our work.

Responsible publication of sensitive material is not an act of terrorism. And those involved in such work – the journalists and those who assist them – are not involved in terrorist activity”.

Mr Greenwald also stated that:

“…not to publish material simply because a government official has said such publication may be damaging to national security is antithetical to the most important traditions of responsible journalism. That approach is also deeply unhealthy for any democracy. It would have prevented some of the most important information in world current affairs ever coming to light.”

The two-day hearing will commence at 10.30am in at the Royal Courts of Justice.

Information about the court listing can be found at: http://www.justice.gov.uk/courts/court-lists/list-rcj using the case reference number CO/11732/2013. The case is due to be held in court 28, Royal Courts of Justice, London.

See Bindmans microsite for updates and further background http://davidmirandalegalaction.tumblr.com/. 

Mr Miranda is represented by Gwendolen Morgan, Anna Mazzola, Kate Goold, Rhona Friedman and Rowan Smith of Bindmans. His counsel team comprises Matthew Ryder QC, Eddie Craven and Raj Desai of Matrix Chambers (http://www.matrixlaw.co.uk/).

Background notes

On 18 August 2013 at London’s Heathrow airport, Metropolitan police officers used controversial counter-terrorism powers to detain David Miranda, the partner of journalist Glenn Greenwald. He was held and questioned for nine hours under Schedule 7 of the Terrorism Act 2000 (under which it is a criminal offence not to answer questions). The material he was carrying was seized and retained, material which included sensitive journalistic documents held in confidence.

Greenwald described his partner's detention as “clearly intended to send a message of intimidation to those of us who have been reporting on the NSA and GCHQ”.

On 21 August, David Miranda launched judicial review proceedings against the police and Home Office challenging the use of Schedule 7 powers against him. That legal case asserts that the Government circumvented the proper procedures in order to obtain materials which might have been denied to them by a court, and it says that the legislation itself must be reviewed.

The legal challenge also focusses on the disproportionate interference with freedom of expression rights engaged in this case. Freedom of expression is a multifaceted right, encompassing both freedom to communicate and freedom to receive. Further, the protection of journalism is always justified by reference to the public's right to receive information. In other words freedom of expression is not simply a right exercised and enjoyed by individuals; it is also a collective right enjoyed by society as a whole. The court will be asked to analyse the arguments through this prism.

The court has given permission to the following leading NGOs and media organisations to intervene in the case: Liberty, Article 19, English PEN, The Media Legal Defence Initiative, and a coalition of the NUJ, Mirror Group News Limited, Independent Print Limited, Index on Censorship, the International Federation of Journalists and the Media Law Resource Centre.

The detention of David Miranda sparked and continues to generate fierce debate in the UK and around the world about the use of anti-terror legislation, the role of the state, surveillance and privacy, and the freedom of expression of journalists and others working with them.

Outside of Mr Miranda’s case, Schedule 7 has been widely criticised. Concerns over whether Schedule 7 contains sufficient safeguards against abuse have been raised by the Parliamentary Joint Committee on Human Rights, the IPCC and the UK Supreme Court.

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