This morning the High Court handed down judgment in David Miranda’s judicial review case which was heard last November. Whilst the court rejected the application, they accepted that the claim raises critically important legal issues especially for those involved in journalism. Mr Miranda has applied for permission to appeal to the Court of Appeal.
Mr Miranda challenged the use of controversial counter-terrorism powers to detain, search and take confidential journalistic materials from him at Heathrow Airport in August 2013 – powers which have been the subject of international condemnation and debate in Parliament over changes needed.
Mr Miranda’s solicitor Gwendolen Morgan, said: “We look forward to the Court of Appeal considering the fundamentally important legal issues raised in our appeal in due course.
Despite recognising that the proper functioning of a modern participatory democracy requires that the media be free, active, professional and enquiring, this judgment leaves little room for responsible investigative journalism which touches on national security issues. Journalism is currently at risk of being conflated with terrorism. Therefore, our client has no option but to appeal. In the meantime, whilst the courts consider our appeal, we understand that journalists are making alternative travel plans to safeguard their material, sources and confidential working systems when they have to travel via the UK. The Government should be very concerned about this and the message it sends internationally.”
In his Skeleton Argument for the hearing Mr Miranda said, “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.”
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 way in which Schedule 7 powers were used against Mr Miranda is a good example of the fundamental deficiencies in this piece of legislation, which the Court of Appeal will be asked to review.
At the first level hearing, a coalition of ten media and free speech organisations intervened in the case to express their concerns about the heavy-handed use of anti-terror powers against journalists, and the signals this sends to other nations who regard the UK as a beacon of democracy and free speech. Their concerns, including the potential chilling effect on sources, were acknowledged by the court.
The court also made some general observations, which journalists may welcome. Lord Justice Laws recognised that the protection of journalistic sources is one of the basic conditions for press freedom, that leaked or stolen material may need protection as journalistic material, and finally that non-journalists including cameramen, interpreters, and assistants may also need the law’s protection.
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. On 21 August, David launched judicial review proceedings against the police and Home Office challenging the use of Schedule 7 powers against him.
The unprecedented use of Schedule 7 to detain Mr Miranda came in the context of the important investigative journalism with which he was assisting. These publications in the Guardian and other long-established international media outlets have revealed to the world the covert surveillance of millions of ordinary citizens, businesses, and world leaders alike. An international debate has ensued about the extent to which various secret services monitor what the public previously thought were private emails, phone calls or online profiles.
During the first level judicial review hearing in November 2013, the High Court considered whether the use of Schedule 7 of the Terrorism Act 2000 was lawful on the evidence before it, although there was no cross-examination of witnesses permitted to test their evidence. Mr Miranda argued that the Government circumvented the proper procedures in order to obtain materials which might have been denied to them by a court, that the decision amounted to a disproportionate interference with freedom of expression rights, and that the legislation itself must be reviewed. (In a related appeal, Beghal, the Supreme Court recently granted permission for arguments to be heard later this year which directly challenge Schedule 7’s compatibility with the Human Rights Act.)
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.. 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, Mr Miranda’s partner 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 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.
The following leading NGOs and media organisations were granted permission 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.
Mr Miranda is represented by Matthew Ryder QC, Eddie Craven and Raj Desai of Matrix Chambers (http://www.matrixlaw.co.uk/).
For updates and further background see: http://davidmirandalegalaction.tumblr.com/
Click here for the grounds of appeal