Today the Administrative Court dismissed David Miranda’s judicial review challenge to his detention and questioning at Heathrow airport last August under Schedule 7 of the Terrorism Act 2000. The government is bound to welcome this legal victory; unsurprisingly Theresa May says the judgment
overwhelmingly supports the wholly proportionate action taken by the police in this case to protect national security.
I will appeal this ruling, and keep appealing until the end, not because I care about what the British government calls me, but because the values of press freedom that are at stake are too important
David Miranda’s lawyers essentially made three arguments. First, that Schedule 7 powers were used in his case for an improper purpose – to get hold of the documents he had on him in electronic form, rather than truly to ask whether he was a person involved in terrorism as required by Schedule 7, paragraph 2. Second, that Schedule 7 is incompatible with freedom of expression under article 10 of the European Convention on Human Rights, since guidance on its use is unclear and it requires no prior authorisation by a judge. And third, that even if Schedule 7 can be read as compatible with free speech, its use in his case was disproportionate. The court has rejected all three of those grounds of challenge.
Lord Justice Laws (with whom Mr Justice Ouseley and Mr Justice Openshaw agreed) says that it was not only the purpose of the two constables who actually made the “stop” which mattered (paragraph 19 of the judgment). Interestingly, this is a rejection of a submission made by Steven Kovats QC at the hearing. But taking account of what senior officers knew and intended, too, Laws LJ finds (para. 27) that
The purpose of the stop … may be simply expressed. It was to ascertain the nature of the material which the claimant was carrying and if on examination it proved to be as was feared, to neutralise the effects of its release (or further release) or dissemination.
Laws LJ holds that this purpose fell properly within Schedule 7 (para. 36). He emphasises the width of Schedule 7 (para. 28) and rejects the argument that it can only be used to stop someone who intentionally or recklessly endangers life or creates a risk (para. 29). The definition of terrorism in section 1 of the Act, he says,
does not create a criminal offence. … That being so, we should not assume that foundational concepts of the criminal law, such as intention and recklessness, are to be read into provisions such as s.1(2)(c) (“endangers a person’s life”) or 1(2)(d) (“creates a serious risk to the health or safety of the public”). S.1(2) is concerned only to define the categories of “action” whose use or threat may constitute terrorism: not to impose any accompanying mental element.
The only real limits Laws LJ saw to the use of Schedule 7 are that (para. 31)
the general law of course requires that the power be exercised upon some reasoned basis, proportionately … and in good faith. Secondly, there is a limitation upon the meaning of terrorism given by reference to the mental or purposive elements prescribed by s.1(1)(b) (“designed to influence… or to intimidate…”) and 1(1)(c) (“for the purpose of advancing a political, religious, racial or ideological cause”).
Putting all those features together, he says (para. 32)
it appears to me that the Schedule 7 power is given in order to provide a reasonable but limited opportunity for the ascertainment of a possibility: the possibility that a traveller at a port may be involved (“concerned” – s.40(1)(b)), directly or indirectly, in any of a range of activities enumerated in s.1(2).
Laws LJ rejects the idea that interpreting Schedule 7 in this way amounts to equating journalism with terrorism (para. 35):
There is no suggestion that media reporting on terrorism ought per se to be considered equivalent to assisting terrorists. The construction advanced allows as I have said for the ascertainment of the possibility that a traveller at a port may be involved, directly or indirectly, in any of a range of activities enumerated in s.1(2) of the Act. Not least given the requirement that the power must be exercised upon some reasoned basis, proportionately and in good faith, I cannot conclude that any of the international materials relied on points towards a different construction.
Laws LJ casts doubt, interestingly from a technical legal point of view, on Lord Sumption’s view (in Bank Mellat v HM Treasury, para. 20), that action interfering with human rights is only proportionate where
(iv) … a fair balance has been struck between the rights of the individual and the interests of the community.
This, says Laws LJ (para. 40)
appears to require the court … to decide whether the measure, though it has a justified purpose and is no more intrusive than necessary, is nevertheless offensive because it fails to strike the right balance between private right and public interest; and the court is the judge of where the balance should lie. I think there is real difficulty in distinguishing this from a political question to be decided by the elected arm of government. If it is properly within the judicial sphere, it must be on the footing that there is a plain case.
He goes on later to explain (para. 46) his view that, assuming Lord Sumption’s “requirement (iv)” to be good law,
the application of requirement (iv) in the toll of proportionality – “whether… a fair balance has been struck between the rights of the individual and the interests of the community” – needs at least to be modified. The contrast is not between private right and public interest. The journalist enjoys no heightened protection for his own sake, but only for the sake of his readers or his audience. If there is a balance to be struck, it is between two aspects of the public interest.
But the heart of the judgment is Laws LJ’s rejection of the argument that the stop was disproportionate because it obstructed responsible journalism. He accepts (para. 59) the Home Office and police evidence about the dangers if the material David Miranda was carrying were disclosed:
Neither the claimant nor Mr Greenwald is in a position to form an accurate judgment on the matter.
Laws LJ seems to have been especially unimpressed with Glenn Greenwald’s witness statement.
Mr Greenwald’s account of the practice of “responsible journalism” has a didactic quality
he says at para. 55; and (para. 56)
I am afraid I have found much of this evidence unhelpful.
At para. 58 he goes on:
Mr Greenwald’s account … of the “many ingredients to the sensible reporting of very sensitive information” is insubstantial; or rather, mysterious – the reader is left in the dark as to how it is that “highly experienced journalists and legal experts” … or “[e]xperienced editors and reporters” … are able to know what may and what may not be published without endangering life or security. There may no doubt be obvious cases, where the information on its face is a gift to the terrorist. But in other instances the journalist may not understand the intrinsic significance of material in his hands; more particularly, the consequences of revealing this or that fact will depend upon knowledge of the whole “jigsaw” (a term used in the course of argument) of disparate pieces of intelligence, to which the classes of persons referred to by Mr Greenwald will not have access.
Laws LJ picks up on the “spiky” submission I noted in the hearing (para. 70)
that journalists, “like judges”, have a role in a democratic State to scrutinise action by government
and he rejects the idea that the national security responsibility of government must be balanced against journalists’ responsibility (para. 71):
In my judgment, taken at their height these propositions would confer on the journalists’ profession a constitutional status which it does not possess. They suggest, as Mr Greenwald’s evidence suggested, that journalists share with government the responsibility of measuring what is required by way of withholding publication for the protection of national security. Journalists have no such constitutional responsibility. They have, of course, a professional responsibility to take care so far as they are able to see that the public interest, including the security of the State and the lives of other people, is not endangered by what they publish. But that is not an adequate safeguard for lives and security, because of the “jigsaw” quality of intelligence information, and because the journalist will have his own take or focus on what serves the public interest, for which he is not answerable to the public through Parliament. The constitutional responsibility for the protection of national security lies with elected government: see, amongst much other authority, Binyam Mohamed  QB 218 per Lord Neuberger MR at paragraph 131. The authorities I have cited on the importance of press freedom nowhere ascribe such a responsibility to the journalists’ profession.
His reasoning on proportionality culminates at para. 72:
The claimant was not a journalist; the stolen GCHQ intelligence material he was carrying was not “journalistic material”, or if it was, only in the weakest sense. But he was acting in support of Mr Greenwald’s activities as a journalist. I accept that the Schedule 7 stop constituted an indirect interference with press freedom, though no such interference was asserted by the claimant at the time. In my judgment, however, it is shown by compelling evidence to have been justified. I have described the testimony of Mr Robbins and DS Goode (and DS Stokley). There is no reason to doubt any of it. In contrast, (1) the evidence of the claimant and Mr Greenwald is unhelpful, to the extent I have explained. (2) There is no question of a source being revealed … (3) The fact that the material was stolen, though it does not exclude the law’s intervention to protect free speech, goes in the scales in favour of the defendants.
He rejects the argument that Schedule 5 of the 2000 Act should have been used instead of Schedule 7, a submission he says “lacks all practicality” (para. 61).
Laws LJ ends by agreeing with and following the ruling in Beghal v DPP that Schedule 7 is compatible in principle with the human rights (para. 82). In arguably the most weakly-reasoned part of the judgment, Laws LJ rejects the submission (based on cases such as Sanoma Uitgevers, Telegraaf Media and Nagla v Latvia) that human rights law means a judge must authorise the use of a power like Schedule 7. He says (para. 88)
Mr Kovats submits that the Strasbourg court has not developed an absolute rule of prior judicial scrutiny for cases involving State interference with journalistic freedom. In my judgment that is right. Although the court’s reasoning is sometimes expressed in very general terms (see in particular paragraphs 90 and 92 of Sanoma), in this area as in others its method and its practice is to concentrate on the facts of the particular case.
Two more aspects of the judgment are worth mentioning. Laws LJ (following the recent trend among British judges of taking a muscular and critical approach to the European Court of Human Rights) expresses some doubt about Strasbourg’s understanding, in Gillan & Quinton v UK, of the public law constraints on executive decision making in English law (para. 83),
in English law the executive never enjoys unfettered power. All State power has legal limits, for it is conferred on trust to be exercised reasonably, in good faith, and for the purpose for which it was given by statute; and where a discretionary power touches a fundamental right, its use must fulfil the proportionality principle. … the position in this jurisdiction is with respect more nuanced than the Strasbourg court would appear to acknowledge
There’s also an interesting discussion of the right to free speech (para. 43-46), of its nature and purpose, which leads to Laws LJ’s conclusion, mentioned above, that free speech in a case like this is the public interest of readers, rather than a private interest of journalists.
The judgment’s an almost complete victory for the government and the police; it’s not surprising that Glenn Greenwald has condemned it (as well as this country’s culture).
David Miranda was refused permission to appeal to the Court of Appeal – Laws LJ explained that, as the judgment was in his view to a great extent dependent on facts and judgment, he felt the Court of Appeal should decide whether it wishes to hear it. In effect David Miranda now has a week in which to seek permission from the Court of Appeal itself, because the police and Home Office have undertaken to abide by the terms of the injunction granted on August 30 (for what it’s worth).
I’d be surprised if the Court of Appeal doesn’t hear this case. While I doubt it’ll reverse today’s judgment, this case will become more interesting on appeal and when, perhaps, it reaches the Supreme Court.