Last week, Mr Miranda made an urgent application for an interim injunction to stop inspection of the documents seized from him when he was detained at Heathrow airport on 18 August. His application was based on the principle that police and Government officials should not be able to use terrorist powers unlawfully to gain material from journalists and then inspect that material freely while the lawfulness of their actions is still being determined by a Court. As Lord Justice Laws made clear at the hearing ‘All bets are off’ as to the legality of the Defendants’ actions. The court granted an injunction that permitted the Government access to the material seized on narrowly defined grounds.
Earlier this week, the Home Office and Metropolitan Police lodged evidence with the Court in which they made sweeping assertions about national security threats which they said entitled them to look at the materials seized, but said that they could not provide further details in open court. Mr Miranda does not accept the assertions they have made and is disappointed that the UK Government is attempting to justify the use of terrorist powers by making what appear to be unfounded assertions.
However, Mr Miranda has taken a pragmatic view about the inspection which he knows has already occurred since his material was seized on 18 August, and the options available to the Court at this initial stage when faced with the dramatic claims made by the Government. He has therefore agreed to let the injunction that was made last week continue until the lawfulness of the Government’s actions has been determined.
He now looks forward to the opportunity to have the Government’s actions and assertions fully scrutinised at the substantive hearing of his judicial review claim. The case has been expedited and a substantive hearing should take place in October. However, if the Government seeks to use controversial Closed Material Procedures to hold the hearing in secret, the timetable will be derailed.
There has been international condemnation of the Government’s improper use of its powers in this case and the heavy-handed interference with essential press freedoms. Liberty and the National Union of Journalists have already applied to the court to make a formal intervention in the judicial review. Other media and civil liberties organisations have indicated that they will also seek to intervene. Expressions of concern have been made by the Council of Europe Secretary General, leading world editors, the New York Committee to Protect Journalists, Human Rights Watch, Amnesty International, English Pen, Index on Censorship, Article 19 and others.
Mr Miranda’s solicitor, Gwendolen Morgan, said:
“This case involves critical issues of public interest as to the use of Schedule 7 of the Terrorism Act 2000 to undermine and circumvent the long-recognised necessity for protection of journalistic sources and confidential journalistic material.
“Given the vague doomsday prophesies which the police and Home Office have put before the court, our client decided that the full hearing in October was the better forum in which to argue these fundamental issues of press freedom. He hopes that – in open court – the Defendants’ assertions will be fully tested. Our client welcomes the letters of support which have been sent from journalist and civil liberties organisations worldwide, who are concerned about the misuse of the draconian Schedule 7 powers. Their message is simple: journalism is not terrorism.”
Mr Miranda said:
“I am bringing this case because I believe that my rights have clearly been violated by UK authorities, and that basic press freedoms are now threatened by the attempted criminalization of legitimate journalistic work.”
Mr Miranda’s partner, journalist and columnist for the Guardian US, Glenn Greenwald, said:
“The UK Government is incapable of pointing to a single story we have published that has even arguably harmed national security. The only thing that has been harmed are the political interests and reputations of UK and US officials around the world, as they have been caught engaging in illegal, unconstitutional and truly dangerous bulk surveillance aimed at their own citizens and people around the world, all with little accountability or transparency – until now. The government’s accusation that we have been irresponsible with the security measures we took with the materials with which we are working are negated by their own admission that they have been unable to obtain access to virtually any of the documents they seized from Mr. Miranda because, in the government’s words, those materials are “heavily encrypted”.
In their letter to the court yesterday, the NUJ, writing on behalf of its 30,000 members, stated:
“…[The NUJ is writing] to express its serious concerns at the detention of David Miranda and in particular at the failure of the State authorities to recognise the importance of the protection of journalistic sources and of the protection of confidential journalistic material.
“…The NUJ Is concerned that the use of Schedule 7 of the Terrorism Act 2000 is not compatible with Article 10 of the European Convention on Human Rights, it does not appear disputed that Mr Miranda’s electronic equipment was seized by the authorities prior to a review by a judge or other independent and impartial decision¬ making body.
“…Should the authorities become routinely able to obtain journalistic material or sources, there is far less likelihood of matters of legitimate public interest becoming known to the public.
“That the State authorities chose to circumvent this process, using the Terrorism Act, is disturbing. This in itself would in future have a chilling effect on journalists, or their associates or assistants, deterring them from travelling abroad to obtain or provide information as they would fear that any journalistic material such as notebooks and laptops would be seized by the authorities on exiting, returning to, or even passing through, the UK at a port or airport. The public would be more likely to be deprived of knowledge of matters of public interest and concern as a result.
“…It is submitted that Schedule 7 TA being used in this way gravely undermines the confidentiality of journalistic sources and the integrity of confidential journalistic material.
“The lack of an effective mechanism for ensuring that seizures of journalistic material are subjected to independent scrutiny before being material is inspected, copied or shared, contravenes UK and European law, including the European Convention.
“…This sets a dangerous precedent. It is quite likely that other countries (with less human rights protections and a greater tendency to persecute journalists) will follow the UK’s lead and enact provisions similar to Schedule 7.”