In a landmark ruling, the Court of Appeal today allowed David Miranda’s appeal against the use of controversial police powers to stop, detain, question and search him at Heathrow Airport in August 2013. At the time he had been stopped Miranda was assisting the work of his partner, the award-winning journalist Glenn Greenwald, who was publishing articles about Edward Snowden’s mass surveillance revelations.
Led by its most senior judge, Lord Dyson MR, the court found that the powers, contained in Schedule 7 of the Terrorism Act 2000, are flawed. They breach fundamental rights, because they “do not afford effective protection” for the basic rights of journalists, and those working with them, that are protected in other areas of British law, including other anti terrorism legislation (paragraph 113). He added
if journalists and their sources can have no expectation of confidentiality, they may decide against providing information on sensitive matters of public interest.
The court went on to hold that the breach would need to be remedied by Parliament by introducing judicial oversight when such powers are used at ports.
The decision is also important because for the first time the Court of Appeal rejected the very broad definition of ‘terrorism’ put forward by lawyers for the police and the Secretary of State. The Secretary of State had argued that the 2000 Act definition of terrorism includes those involved in lawful political activity – such as journalists or protestors – if they accidentally and inadvertently do something that puts lives at risk. In overruling the Divisional Court, the Court of Appeal said that the Secretary of State was wrong and terrorism required some intention to cause a serious threat to public safety, such as endangering life. Dyson MR commented:
If Parliament had intended to provide that a person commits an act of terrorism where he unwittingly or accidentally does something which in fact endangers another person’s life, I would have expected that, in view of the serious consequences of classifying a person as a terrorist, it would have spelt this out clearly (paragraph 54).
Although it allowed David Miranda’s appeal, the Court of Appeal did not accept his argument that the police had acted for a purpose that fell outside Schedule 7. It said that Schedule 7 powers were so unusually broad that they could be exercised for reasons that were in the mind of one of the officers in the command chain, even though that officer did not actually perform the stop, had no reasonable basis for those reasons, and had not communicated those reasons to any other officers who did carry out the stop. Given this, Dyson MR concluded “I would hold that the exercise of the Schedule 7 stop power in relation to Mr Miranda on 18 August 2013 was lawful” (para 119).
The Schedule 7 powers, under which David Miranda was questioned and detained for nine hours, allow the police to act without any reasonable grounds to suspect a person of terrorism. Hundreds of thousands of people have been stopped under those powers that have been in place for more than 15 years and they are highly controversial. However, their use to seize material being used by a journalist, without seeking the prior judicial authorisation that would have been required outside an airport and without any reasonable grounds to suspect that David Miranda was involved in terrorist activity, caused an international outcry. As a result of this ruling the law will have to be changed so that journalists are better protected.
Kate Goold of Bindmans LLP said:
Today’s ruling emphasises the importance of interpreting terrorism with its ordinary natural meaning to ensure that legitimate public interest journalism is not stifled through the use of draconian powers because of the fear of remote consequences. The notion of a journalist becoming an “accidental terrorist” has been whole-heartedly rejected. We welcome this court’s principled and decisive ruling that Schedule 7 needs to come in line with other legislation to ensure that the seizure of journalistic material is protected by judicial safeguards.
Her colleague, John Halford, also part of the Bindmans legal team added:
In short, this Court has decided that taking effective action against terrorism involves using instruments that are fit for purpose, rather than those that are so blunt that they inevitably damage the interests of democratic societies based on free speech and the journalists that are their champions.