R (Miranda) v Home Secretary: today’s hearing and varied consent order

by Carl Gardner on August 30, 2013

Today’s was a much shorter hearing than last week’s. I was expecting full argument about whether the short-term interim injunction granted last week should be continued until the hearing of the full judicial review, probably in October, and if so whether its terms should be varied. But in fact the hearing lasted no more than about 15 minutes.

Matthew Ryder QC, for David Miranda, opened by explaining to Lord Justice Laws and Mr Justice Kenneth Parker that the parties had agreed that the injunction should continue, on the same terms: it should permit the defendants to inspect the detained material for the purpose of investigating offences under section 58 and section 58A of the Terrorism Act 2000, and offences under the Official Secrets Acts 1911 and 1989.

Laws LJ commended the parties for reaching agreement, and the court made the order in those terms.

So until the judicial review or further order (all the parties are free to apply to the court for the order to be varied) the government and the police may not inspect, copy, disclose, transfer, distribute (whether domestically within the UK or to any foreign government or agency) or otherwise interfere with the material obtained from David Miranda under Schedule 7 of the Terrorism Act 2000, except:

  • for the purposes of investigating whether David Miranda is or has been concerned in the commission, preparation or instigation of acts of terrorism.
  • for the purposes of investigating whether he has committed offences under section 58 and section 58A of the Terrorism Act 2000, and offences under the Official Secrets Acts 1911 and 1989,* and
  • for the purposes of protecting national security, including protecting lives and preventing the diminution of the UK’s national security capability.

Interestingly, Steven Kovats QC for the Home Secretary said there’d been no decision yet whether to apply for these to be closed material proceedings under the Justice and Security Act 2013.

Any potential interveners in the case (Liberty and PEN were mentioned in court; outside court later David Miranda’s solicitor also mentioned the National Union of Journalists) have till September the 5th to apply.

Again, the government and the police must be pleased with this consent order. They’ve not only maintained the ability to inspect the material for national security purposes, but can now use it for criminal investigations, which they’ve been restrained from doing for the past week.

*I’ve amended this to make clear my understanding
that the additional saving only permits investigation
of offences by David Miranda: no one else.
See comments below.

 

{ 2 comments… read them below or add one }

1 David Boothroyd August 30, 2013 at 14:11

Is the permission to investigate offences under the Terrorism Act and the Official Secrets Acts restricted to offences suspected to have been committed by David Miranda or does it extend to anyone?

2 Carl Gardner August 30, 2013 at 15:27

Good point, David. The notes I made in court suggest it was restricted to David Miranda in fact – I’m asking to see if either side will confirm my understanding. I should have been clearer earlier, sorry. I’ll amend my post (and then I guess re-correct it if I turn out to be wrong).

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