R (Miranda) v Home Secretary: the second day of the hearing

by Carl Gardner on November 7, 2013

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.

{ 20 comments… read them below or add one }

1 ukliberty November 7, 2013 at 23:48

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.

Or GCHQ or the NSA themselves.

2 Richard November 8, 2013 at 00:10

@UKLiberty

Indeed – and remember the NSA and GCHQ were the only parties to have had this information taken from them (by Snowden) until Miranda was detained. At least Miranda’s copy was encrypted!

If this interpretation were to stand all people holding a security clearance who have access to UK protectively marked material would be terrorists. (That’s at least 850,000 five-eyes terrorists for a start).

3 ukliberty November 8, 2013 at 00:41

Oh and the contractors.

and remember the NSA and GCHQ were the only parties to have had this information taken from them (by Snowden)

So far as we know, anyway. He’s the only one to have publicly admitted to it.

4 Neil Kitson November 8, 2013 at 03:47

Weird judicial deference shown to an executive that, within living memory, caused an invasion of another country on fabricated grounds and has since managed to conceal documents associated with this invasion which – on principles written for Nuremberg – was criminal.

5 Matt Flaherty November 8, 2013 at 11:10

I don’t agree with interpretations suggesting that intelligence personnel or police acting in their proper authority could be counted as terrorists for possessing and processing the sensitive materials. It is implied (I think) that the terrorist activity is in unauthorised use of that material. I do agree that the interpretation that the Home Office and the police are asking us to accept is absurdly and terrifyingly wide. For example, Alan Rusbridger and Glenn Greenwald are now concerned in terrorist activity and are therefore terrorists. Any time either travels through a port in this country they can expect to be stopped under schedule 7 for the purpose of determining whether they are still engaged in terrorist activity. Talk about chilling of journalism! If this definition has effect outside of the Act then we’re screwed.

6 Matt Flaherty November 8, 2013 at 11:35

One other thing… I saw you tweet yesterday that Ryder submitted an example about a political campaigner unwittingly parking so as to block a fire exit, thus endangering lives. Ouseley J responded that the parking would not be the action intended to influence government (there’s that intent). It’s a shame that Ryder did not then point out that neither is the carrying of sensitive documents the action intended to influence government. Publishing of sensitive material, yeah. Transporting it, no. Like parking a car at a political rally, the one leads to the other.

7 alrich November 8, 2013 at 14:45

It should be noted that “intending to influence government” is described thus in section 1(1), Terrorism Act 2000: “(b) the use or threat is designed to influence the government … and
(c) the use or threat is made for the purpose of advancing a political, religious or ideological cause”.
But this hinges on having established the illegitimacy of the MEANS of the attempted influence ie you have to first show violence, damage to property etc as per sub section (2). You can’t say: “They were ideological/religious/political and sought to influence government. Let’s see if we can loosely define their behaviour [carrying a laptop around] as terrorism too, then we’ve got ’em”. I don’t think the Guardian is “ideological” as such (others disagree, but that would make the Mail very ideological too) nor does carrying a laptop fall within subsection (2).
Sub section (5) does say: “In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.” I think the words “actions taken for the benefit” imply intent is required. Other words could have been used if intent was to be irrelevant eg “that might benefit…” would not imply intent. Al-Qaida may be “lapping up” Guardian reports as Sir John Sawers says, but that isn’t enough without intent.
I also think “actions” means a subsection (2) action – not any old action. Section 1 begins thus: “(1) In this Act “terrorism” means the use or threat of action where— (a) the action falls within subsection (2).” Carrying a laptop doesn’t.

8 Matt Flaherty November 8, 2013 at 15:00

@alrich, I don’t think that cuts it unfortunately. The wording is superset rather than subset logic. “Actions … include” does not mean they are limited to.

Exact wording: “(5)In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.”

Meaning: Terrorism also includes other types of action with the purpose of benefiting a terrorist group (non-violent, material aid, etc).

9 alrich November 8, 2013 at 17:40

I disagree. S1 describes the actions (by referring to sub section (2)):
“(1) In this Act “terrorism” means the use or threat of action where—
(a) the action falls within subsection (2)”

That’s killing, destruction etc

S 1 (5) Describes a potential purpose: “action taken for the benefit of a proscribed organisation” – which would be an organisation with an ideological, religious, political cause.

The whole act is covered by the definition of S1(1)(a). So S1(5) is also covered by it. It is not an additional type of terrorist act but a potential purpose of a subsection (2) act.

10 Matt Flaherty November 8, 2013 at 18:04

@alrich What I would say is that if it were that easy, it would have been argued. There are two aspects of paragraph 2 that could apply:

(d) creates a serious risk to the health or safety of the public or a section of the public, or
(e) is designed seriously to interfere with or seriously to disrupt an electronic system. <- namely intelligence collection systems

It is mainly d that has been raised. And it is not just the action itself, but the threat of such action. Section 40(1) is where a terrorist is defined, which is a person that schedule 7 seeks to identify. 1(b) says "(b)is or has been concerned in the commission, preparation or instigation of acts of terrorism." This is a bone of contention. Home Office says that carrying unauthorised sensitive intelligence documents does create a serious risk to public safety and so is concerned in instigation. Police say you don't even have to have knowledge of it!

I don't think your reference to paragraph 5 is helpful. It is not what brings in the political motivation. A proscribed organisation is a group like Al Qaeda which has been identified as being instigators of terrorism. This is conveniently laid out in section 3.

The political motivation that the statute refers to is pertinent to the act and the person carrying it out or otherwise enabling it. The requirement of paragraph 5 is that benefiting the proscribed organisation must have been the purpose of that sort of act, but that paragraph serves to widen the definition of terrorism. Without it terrorism would not include knowingly donating money to a terrorist cause for example. It does not ascribe that requirement to anything in paragraph 2 taken on its own. The only limits imposed on paragraph 2 come from paragraph 1, and those limits are potentially removed by paragraph 3.

11 ukliberty November 8, 2013 at 20:22

Were striking firemen mentioned in court? Or campaigners against, say, MMR?

12 ukliberty November 8, 2013 at 21:50

Sorry, I see firefighters were mentioned.

Matt,

I don’t agree with interpretations suggesting that intelligence personnel or police acting in their proper authority could be counted as terrorists for possessing and processing the sensitive materials. It is implied (I think) that the terrorist activity is in unauthorised use of that material.

Of course that would be sensible, but that isn’t what the gov argued:
Kovats: simply having this data is terrorism because of the risk of it being taken from you, even if you don’t plan to publish

13 Chris Connolly November 8, 2013 at 22:11

As I noted in an earlier blogpost on the matter (http://ayellowguard.blogspot.com/2013/11/journalism-is-apparently-terrorism-met.html), any activist in the United States who is currently encouraging people not to sign up for health care is guilty of terrorism under this ‘broad definition’, as are people like Sen. Ted Cruz who tried to shut down the government in order to have Obamacare defunded. They are endangering lives to try and influence a government for a political or ideological purpose.

I don’t think the analogy with GCHQ staff works, however, as their possession of the documents would not be considered for the purpose of influencing the government for a political or ideological purpose, as opposed to in the course of their employment.

It is, I think, clear now though by comparing ss. 1(2)(d) and 1(2)(e) that intent is not required. However what might save Matthew Ryder was Laws’ comments that HRA s.3 might require a reading of s.1 that is compatible with Article 10. Otherwise, there are clearly all sorts of political campaigning activities, particularly those against a security state (CCTV, ID cards, a state database of borrowed library books) that fall under the definition of terrorism.

HRA s.3 and Article 10 must allow political activity promoting liberty over security (or was Benjamin Franklin a terrorist too?!), even if it objectively endangers a section of the public by their acceptance of the idea. I think Laws is aware of this, and may well be what saves the day for Miranda’s team.

14 alrich November 10, 2013 at 15:16

@Chris Connolly @Matt Flaherty
Chris makes a good point. A consequence of treating S1(5) as “superset logic” (ie an extra definition of terrorism additional to S1(2)) is that many things a journalist might possess could amount to subsection 5 “action taken for the benefit of a proscribed organisation”.
Personally I would reassert “taken for” implies intent and that “action” means Subsection 2 action – violence, risk to health, and indeed disrupting electronic systems.
However, if my contention is denied (as Matt denies it), then someone with film footage of a Marine murdering an Afghan insurgent or someone with evidence that UK security services are complicit in torture would be terrorists. They would possess material that would be “benefit of a proscribed organisation” by supporting their propaganda war and could even lead to S1(2)(d) “a serious risk to the health or safety of the public or a section of the public” – albeit that other people (not the possessor of the material) would be staging the revenge attacks, incensed by the information (were it to be published). Journalism would be terrorism. So would whistleblowing. So would assisting journalists and whistleblowers by carrying the information from one place to another – however well encrypted.
My interpretation of the Act is straightforward and has the benefit of being in conformity with ECHR Art 10(1).
Art 10(2) might be argued (ie is the restriction “necessary in a democratic society”) – but not by saying it is necessary to treat someone/define someone as a terrorist who isn’t a terrorist.

15 labrat November 10, 2013 at 15:46

Carl – your point on the application of the law to the investigating police officers is rather a poor one, its a clearly established general principle of law that Acts of Parliament do not bind the Crown or its servants unless specifically stated as doing so.

An example here would be a police officer clearly not being in breach of the law by possessing anything from child pornography to firearms as long as they were done so in the course of his duty.

16 Matt F (flayman) November 10, 2013 at 18:53

@alrich Is anyone suggesting that Miranda and his friends are taking actions for the benefit of a proscribed organisation? I don’t think so. The defendants have been arguing that the serious risk that the sensitive documents could fall into the wrong hands is enough. I don’t see how subsection 5 has anything to do with this case. It therefore doesn’t follow that anyone in unauthorised possession of materials damaging to national security is acting for the benefit of a proscribed organisation.

There are many places in the Act that refer to actions taken for the purposes of terrorism, including section 15, which creates an offence of Fund-raising. Like I suggested before, section 1.5 provides that a person raising funds for the benefit of a proscribed organisation is taking an action for the purposes of terrorism regardless of whether the intention is that the funds are used directly for that purpose. This is all that subsection 5 says, so I can’t see that it helps in any way.

17 Anonymous November 12, 2013 at 18:52

@Matt F (flayman) My mention of S1(5) was intended to head off an argument (about intent), not start one rolling. I was addressing the issue of “influencing the government” and my view that only illegitimate influence (as per S1(2)) counts towards the definition of terrorism – hence, not firefighters.
Your posts raise an important issue, though. My basic position would be that those who commit the various offences in the Act and particularly those offences mentioned in S40 (especially, in the Miranda context, “possesses a document or record containing information” which is “likely to be useful to a person committing or preparing an act of terrorism” under S58(1)(b)), should not be treated as terrorists if they don’t have terrorist intent since they don’t fit the overarching S1(1)+S1(2) definition. They are no more ideological than any of us; they don’t intend to influence the government illegitimately ie using violent methods in S1(2); and they don’t intend the material they have to aid terrorism.
The information might well lead to S1(2)(d) harm: “creates a serious risk to the health or safety of the public or a section of the public”. That risk may be because it makes it easier for terrorists to avoid detection, or it helps recruit violent adherents or it enrages people to violent protest – eg angered by the torture or murder of Islamists by security forces as in the example I give above. But, without intent, to treat the holder of the information as a terrorist would be wrong (in ECHR terms), not least where it is the behaviour of the security services (in excessive surveillance, torture or murder) that is what outrages the recruits or protesters (hence creating risk to safety of the public), not the action of the person revealing it.
If, however, as you argue, the various offences in the act constitute terrorism even without intent – and without the perpetrator fulfilling the definition of a terrorist in S1(1) and S1(2) – then anyone would be guilty who possessed information that might benefit terrorists (potentially leading to one or any S1(2) actions taking place, including “creates a serious risk to the health or safety &c”).
This might be justifiable if the person was carrying around secret codes into security service databases (though presumably other legislation could cover that) – but not if it was evidence for journalistic purposes of security service wrongdoing. There might be a distinction between raw Snowden data and journalistically processed material.
It would be particularly oppressive in such a case because we would be obliged to accept the security services’ estimation of S1(2) risks – and the value and efficacy of their own (secret) actions in preventing it.

18 Alrich November 12, 2013 at 19:05

D’oh. Last post not anonymous at all. I just failed to fill out the form …

19 Matt F November 12, 2013 at 21:17

@alrich I agree in principle that a person should not be labeled a terrorist if that is not the intent. The reason the defendants are able to argue that Miranda’s conduct amounts to terrorism (or that they would like to find out whether it does) is that section 1 creates no offence. The argument is that you can be a person concerned with terrorism without necessarily being liable for any criminal charges. There would surely be nothing chargeable in the case of an unwitting courier carrying unauthorised security documents. It may still be necessary to stop that person if you have reason to believe they are. So you could be a person who satisfies s40.1(b) without being an actual terrorist in the way we recognise the term.

The really bad thing about this interpretation (apart from who the hell would want to be labelled a terrorist for doing nothing wrong) is that this would mean there would be a rational reason for the continual stopping and questioning of a person who had previously been stopped and questioned to reveal “terrorist” activity so as to determine whether they are still a person concerned with terrorism. Also really bad is that the definition of terrorism in this Act is referenced in other Acts in the context of rather serious curtailment of freedom, i.e the Terrorism Prevention and Investigation Measures Act 2011 which replaces control orders.

I absolutely hate the lines of argument that the police submitted and I’m counting on the court being sensible with that, but I’m less than optimistic about a win here. We are on a continuum and there is clear scope creep with the meaning of terrorism. The changes over the years have come about in small increments and for the best of intentions. This latest view, if it were to be accepted, would be a massive leap and for all the wrong reasons.

20 alrich November 13, 2013 at 16:48

I agree (an unusual position for me)

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