The hearing resumed in Court 4 today, to allow more room for the media and public – fewer of whom turned up for the second day, naturally.
David Miranda’s lawyers continued his judicial review challenge to his detention by police in August at Heathrow under Schedule 7 of the Terrorism Act 2000, and the seizure of his data. He relies on three arguments: that the stop was not carried out for the correct legal purpose; that it breached his and others’ freedom of expression; and that Schedule 7 is incompatible in principle with that freedom.
Again today both sides made arguments about whose purpose is legally relevant, when deciding whether the Schedule 7 stop carried out on Miranda was done for the proper legal purpose. There was more argument today, though, on what sorts of purposes are and are not within Schedule 7.
Steven Kovats QC, for the Home Secretary, began by explaining the “firewall” that had been set up following the CC case between one police officer (a Detective Superintendent from the counter-terrorist SO15) who had knowledge of the national security intelligence and others (an acting Detective Inspector and two constables) who did not. It was the purpose in the minds of the constables (who were in fact the examining officers under Schedule 7), Steven Kovats again argued, and their purpose only, which was the legally relevant purpose as far as the court was concerned.
Jason Beer QC, for the police, argued that Matther Ryder had set up a false dichotomy yesterday between (one the one hand) the purpose of determining whether David Miranda was concerned in terrorism and (on the other) getting hold of the data he was carrying. Schedule 7 can be properly be used in order to seize documents, he argued – and in this case, it was precisely the fact that Miranda was thought to be carrying data that gave rise to the need to examine his involvement in terrorism. Beer relied on a report from David Anderson QC, the independent reviewer of terrorism legislation, who had said seizing mobiles phones, for instance, was an important purpose of Schedule 7. Examining data was essential in order to determine whether someone appeared to be concerned in terrorism, since the data might show his intentions. He mentioned Julian Assange, suggesting that the data someone was carrying might show he intended to publish sensitive material indiscriminately.
The key to identifying the dominant purpose of the stop, Jason Beer argued, was not the actual questions asked. The police would have asked David Miranda about the data he’d been carrying, had they had time; but encryption, and the desire not to reveal their intelligence about the data, limited their ability to do so.
On the question whether the stop was improper or disproportionate because it effectively bypassed alternative legal regimes offering journalists more protection, Jason Beer echoed the submission made yesterday by Steven Kovats. The police, he said, could not simply have chosen to use powers in Schedule 5 of the Act, instead of Schedule 7. For one thing, the police didn’t know whether Miranda had any of the sort of material to which a Schedule 5 production order application had to relate. There would have been no enforcement mechanism even if they had got such an order – except contempt of court proceedings. Nor could they have compelled Miranda to answer questions: an explanation order under Schedule 5 is only available, he argued, in respect of material already handed over under a production order. His implication was that there was no time for any of this.
Matthew Ryder countered later by arguing that officers could use reasonable force under section 114 of the 2000 Act (although not to ask questions as Lord Justice Laws pointed out). Ryder contended that Schedule 5 should be used first, with Schedule 7 as a last resort in the event of non-compliance.
Again today, an important issue was how we must interpret the definition of terrorism in section 1 of the Act. Steven Kovats resisted Matthew Ryder’s contention that you had to read into the definition some sort of mental element – intent or perhaps at least recklessness. To do that, he said, would
knock the whole Act out or kilter.
The definition of terrorism is necessarily wide, he argued, because of terrorism’s changing nature.
Indeed it was so wide in his view that simply possessing the raw Snowden data was terrorism, because there was a risk someone ill-intentioned might take it from you – regardless of your own intentions. This was a truly breathtaking submission: I wonder how it applies to the examining offers themselves who detained David Miranda’s data. Why don’t they count as terrorists, on this approach, if the reasonableness of their intentions (law enforcement or protecting national security, in their case) is irrelevant? But Jason Beer for the police agreed with the submission, saying terrorism was terrorism regardless of motive; and that to imply into the Act any requirement for intent would have unworkable consequences.
Beer also argued that it’d be odd if the offence under section 58 of the Act required no mental element yet Schedule 7 did. In response later Matthew Ryder said section 56 was far too broad unless the concept of being concerned involved some element of intent.
The judges seemed to agree with the defendants on the width of the definition; Ryder seemed to get nowhere when he argued that it was unworkable not to read in a mental element and that (contrary to what Laws had said earlier) it was the lack of one that would make a criminal case impossible to sum up to a jury.
Interestingly, Matthew Ryder returned to the argument he’d made yesterday about the need for a danger to life to be direct, in order for the definition of terrorism to be satisfied. I wrote yesterday that I thought this argument had some substance, giving an example; and Matthew Ryder had his own examples to deploy today.
Firefighters threatening to strike, he said, would endanger life, would want to influence government and would be taking political action. Were they terrorists? Or if government had a secret plan to keep us all safe by installing cameras in every home, an investigative journalist revealing the plan might risk lives (remotely at least) in an attempt to have political influence. There was no chance for the defendants to respond to these submissions, which I thought some of the most interesting of the day. These points will survive as an indictment of the width of the definition, if Matthew Ryder loses the argument on law.
On what basis is needed to justify a stop, Jason Beer said that to require any sort of basis was to put the cart before the horse. Schedule 7 existed precisely in order to find out if terrorism had occurred and whether the person stopped was concerned in it.
The fact that the police had required more in the way of justification that they’d initially been given, Beer said, showed that their ultimate purpose was sound. Matthew Ryder used the same fact to argue the opposite. The police had known the initial national security case was legal inadequate, he said – and the beefed-up justification added subsequently did not give enough extra detail to make a difference to the dominant purpose.
Matthew Ryder, returning to his argument about the need for compelling evidence to justify a stop, said wild hypothetical theories about what might happen were not enough. The authorities needed to have carried out some assessment of the real risk – and the extent of the risk depended on who they were dealing with. This led him to his point that the risk must be low in the case of someone engaged in responsible journalism.
Laws LJ said at one point that
I’m not sure I know the meaning of the phrase “responsible journalism”.
To say a journalist was responsible did not mean he became omniscient in intelligence matters, he said. The phrase was
just rhetoric, really.
Laws LJ came back to this theme more than once. A responsible journalist can’t arrogate to himself responsibility for national security, he said: no one has appointed or elected him. And he didn’t see how a journalist could make a judgment on what was safe to publish.
When Matthew Ryder drew his attention to Glenn Greenwald’s statement describing how responsible his approach to journalism is, Laws responded that this was just assertion.
This is saying “have faith!”.
In the spikiest bit of advocacy I heard in this case, Matthew Ryder said that
Like judges, journalists have a role
in democratic society. Everyone’s on the same side, he argued, trying to fulfil his or her own part. Just as responsible journalism give a degree of deference to authority and will be careful, it too is entitled to deference, from state authorities and, he implied, from the courts. Some balancing was needed of state rights as against the rights of responsible journalists. Always to take the government view was
not how we work in this country.
Mr Justice Ouseley’s final question brought into the courtroom the question of the Guardian‘s conduct (whose freedom of expression was also breached by the stop, Matthew Ryder had argued earlier in the day). The Guardian, he said, had “circumvented” an agreement to destroy the leaked Snowden material by sharing it with others overseas. How did that equate to the responsible journalism Matthew Ryder was inviting us to have faith in?
There was nothing, Ryder replied, to suggest that anything other than the highest standards had been applied by the Guardian.
I enjoyed all the advocacy. Steven Kovats’s style was direct, effective and non-nonsense, Jason Beer’s precise and studied, while Matthew Ryder became more passionate in his defence of responsible journalism as this afternoon went on. He had the toughest task over these two days, and succeeded in keeping important arguments alive, with new points to support them, even after they’d been forcefully contested by his opponents and questioned from the bench.
I doubt he’s won this case, though.