The Home Secretary’s defence in the Miranda judicial review

by Carl Gardner on November 5, 2013

Here’s the Home Secretary’s statement of grounds – drafted by Steven Kovats QC of 39 Essex Street and Julian Blake of 6, King’s Bench Walk – for opposing David Miranda’s judicial review claim, to be heard over two days on Wednesday and Thursday this week. Miranda seeks judicial review of his questioning and detention under Schedule 7 of the Terrorism Act 2000.

My view on the Home Secretary’s legal arguments is underneath the viewer. Click on the bottom left of the viewer if you want to see the document in fullscreen view, together with my more detailed comments.

Essentially of course the Home Secretary’s argument responds to the three points being advanced by the claimants: that Schedule 7 was used for an improper purpose, that Schedule 7 is incompatible in principle with human rights, and that its use in this case breached human rights – most especially freedom of expression.

On improper purpose, the Home Secretary argues that Schedule 7 powers were properly used for the statutory purpose of determining whether he was involved in terrorism, as someone possibly assisting in the disclosure of documents which could endanger lives, in an attempt to influence government and to advance a political cause.

The government’s lawyers argue that the use of Schedule 7 did not bypass rules giving special protection to journalistic material, such as Schedule 5 to the 2000 Act and Schedule 1 of PACE 1984. That’s because they didn’t apply, there being no criminal investigation at that time, and because in any event the data taken from David Miranda was not “journalistic material”. Kovats and Blake argue that David Miranda does not claim to be a journalist. They also argue that the nature of the data – raw leaked documents (or as they put it, stolen documents) – means they were not prepared by any journalist for publication. They compare the data to a stolen manuscript of a novel and accuse Miranda of the offence of handling stolen goods and of intending to use the documents for the criminal purpose of assisting terrorism.

As far as human rights are concerned, the Home Secretary argues that freedom of expression was not interfered with, again because no journalistic material was taken. But even if it was, any interference was prescribed by law – under Schedule 7 – and pursued a legitimate aim of protecting national security, preventing crime, protecting the rights – i.e. the lives – of others, and the prevention of disclosure of sensitive documents.

The government argues that any interference was proportionate to those aims in view of the lack of alternatives to the use of Schedule 7, the urgency and gravity of the situation and the narrow time window the police had in which to act. A key plank of its argument is that this is not a case involving an attempt to identify journalists’ sources, unlike the Sanoma Uitgevers case relied on by the claimants. While in such cases the European Court of Human Rights gives strong protection to those sources, in this type of case, which simply involves the normal application of security provisions in a way that happens to impact upon someone working with journalists, no special protection is given. In particular, the case law makes clear that no prior judicial or independent scrutiny is required before documents are detained.

The government’s final argument is on remedies. Since remedies in judicial review cases are discretionary (in other words, even if the claimants win, the judges are not forced to give them any particular type of outcome, but may simply grant whatever they think appropriate), the court should not give any remedy beyond a declaration that the use of Schedule 7 was unlawful. This is for two reasons: first, because the authorities have a duty and a compelling need to use the Miranda material to protect national security, however they came by it, and should be allowed to do so; and secondly, because it would absurd (“worthy of Lewis Carroll”, as the government’s barristers put it) if the Home Secretary were ordered to destroy her own documents, or recall them from from the US.

Although they set out no separate argument that Schedule 7 is in principle compatible with human rights, overall the government’s case on human rights is pretty strong. Certainly the analysis of the case law here is a precise and strong rebuttal of the claimants’ argument that this case involves the seizure of strongly protected journalistic material and was disproportionate without prior judicial or independent scrutiny. On this aspect of the case, I expect the government to win.

On the improper purpose argument, it seems to me the response is less obviously convincing. Whether the government successfully fends off this judicial review depends on whether its evidence on this point is accepted by the judges, or is successfully undermined by the claimants. This is the aspect of the case I’d worry about if I were in government.

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