Having arrived in good time I was disappointed to find that the walls of Court 27 seem to be impenetrable to mobile phone signals. This meant that, while a fascinating case was unfolding before me, I could not live-tweet it as I had originally intended. I did tweet excessively during the two breaks and afterwards, but have written this to give a more coherent account of what happened today.
Matthew Ryder QC for David Miranda was making three applications: first, for further disclosure of evidence relating to exactly who made the decision to detain him under Schedule 7 of the Terrorism Act 2000; second, to be allowed to cross-examine witnesses at the substantive hearing of the judicial review; and third, to join Glenn Greenwald’s separate claim to these proceedings.
For the Home Office (Steven Kovats QC) and Metropolitan Police (Jason Beer QC) there was an application for public interest immunity for various documents that, on their submissions, it was improper to disclose given the risk to national security.
Helpfully for those listening, Matthew Ryder outlined at the start of the proceedings what the grounds of Miranda’s claim were. There were originally four:
- That the authorities had used their Schedule 7 powers for an improper purpose when they detained David Miranda;
- That those powers did not apply to individuals in transit through the UK and with no intention of ever entering the country;
- That the exercise of Schedule 7 powers in this case and generally was incompatible with human rights;
- That the use of Schedule 7 powers in this case was not proportionate to any legitimate aim that the authorities may have had.
But Matthew Ryder indicated that ground two was no longer going to be advanced at the full hearing.
Lord Justice Laws at this point made the observation that if the improper purpose ground fails, then that naturally defeats the proportionality ground as well. I am not sure that this necessarily follows, and it will be interesting to see how the court comes to a decision on this if they do decide against David Miranda on the first ground.
Having outlined the three remaining grounds Matthew Ryder submitted that disclosure was necessary to allow David Miranda’s legal team to determine who made the decision to detain, what was their state of knowledge, and on what documents they had relied in coming to their decision.
It appears from Ryder’s submissions that there were two Examining Officers at the airport, but that they were being given instructions by officers based in London. These officers, Acting DI Woodford and Det. Superintendent Stockley, had intelligence that may or may not have been shared with the Examining Officers. Miranda’s legal team wanted to know exactly who knew what when in order to understand the authorities’ broad assertions that the Schedule 7 powers were exercised lawfully.
Ryder made reference to the case law governing powers of arrest. A police officer exercising his or her power of arrest cannot derogate from having made the decision himself. If he or she is acting on the instructions of some superior officer there must still be a prima facie examination by the arresting officer of whether or not the arrest is necessary and based on reasonable suspicion that an offence has been committed.
I imagine, though cannot be sure, that this might be an argument deployed at the full hearing. Does the Examining Officer need to exercise the power themselves without limiting their discretion by blindly obeying orders; or does the complex nature of intelligence and espionage mean that Schedule 7 powers are not that similar to arrest powers in their exercise?
As an interesting aside, a comment made by Mr Justice Ouseley was that the witness statements served so far were not statements of fact but were actually argument. Perhaps this will be explored more fully at trial, with questions being asked regarding what knowledge and assessment were made at the time and not what ex postfacto rationale can be given for the detention of David Miranda.
Linked to further disclosure was the request for cross examination of witnesses. Miranda’s case was that it was important to cross-examine witnesses so as to hear how and why a decision was made to exercise the powers, and what considerations were in the contemplation of the authorities at the time.
It appears that Det. Supt. Stockley has given two statements the first of which says that –
the acts of terrorism I had in mind [when considering Schedule 7 powers] were those that would put lives at risk or cause serious harm to electronic systems.
He goes on to reference the PRISM leak which has been extensively covered by the Guardian. It seems to me that there will be considerable argument about whether or not this was a relevant consideration, given that the NSA/Snowden revelations have been widely reported so as most individuals have an appreciation of exactly how much data is being collected by the NSA and GCHQ; has this damaged their capabilities?
Laws LJ interrupted here to say that, so far as he could see, the narrow issue to be determined here was the Terrorism Act 2000 and whether any acts by Miranda could be said to fall within the definition of terrorism. Laws LJ went on to say that
this muscular attempt to expand the debate into other areas does not serve your client.
Procedurally, Ouseley J was concerned that this was not a proper place for the cross-examination of witnesses to be decided and it should instead be left to the trial:
are you not asking us to decide this prematurely Mr. Ryder?
Ryder responded by saying that he and his legal team had in fact been criticised by the government’s lawyers for not requesting a determination on this matter soon enough. “Ah“, said Laws,
the price we pay for an adversarial system. And one worth paying.
Despite this, Laws suggested he needed no further information than that so far provided in order to decide the legality of the authorities’ actions.
Matthew Ryder asked that Glenn Greenwald’s claim be joined to the proceedings. There was not much argument on this point other than that it would be most helpful to join the claim to deal with them together. Laws LJ did say that Greenwald had made some
fairly grand assertions
in his witness statements.
Matthew Ryder’s final point was that the issue of Schedule 7’s compatibility with the ECHR had been decided in Beghal v DPP but that Miranda would still be going ahead with this point. It may require a three member Divisional Court to overrule another three member Divisional Court. In Beghal v DPP Mrs. Justice Swift had sat; she was married to Mr. Justice Openshaw. Was this going to be an issue? Laws LJ quickly interjected to say that this was a cause for celebration, not complication.
There was limited response from either of the authorities’ silks. It is likely that they were saving their real ammo for the PII closed hearing. Steven Kovats QC for the Home Office did however say that the “baseline” of all the decisions made around Miranda’s detention was the sheer amount of material that Edward Snowden had taken. This suggests that the authorities know exactly what he has, and that we have not yet seen the most damaging allegations. Alternatively, that those journalists with this material are behaving in a responsible way in not publishing the more damaging revelations.
Only the defendants’ barristers were allowed in court during the PII application. This application did not take long, after which judgment was read. Laws LJ referred interested parties to the earlier judgments for the facts of the case and began by outlining what he viewed to be the central aspect of the case: were the Schedule 7 powers exercised for a proper purpose?
On his view the best evidence as to this purpose was the “PCS” or Port Circulation Sheet. This said that
intelligence indicates that Miranda is involved in espionage activity which is a threat to the UK.
Furthermore the PCS asked that officers consider using their powers of detention to detain Miranda to assess any risk he may pose. Most interestingly, the PCS stated that Miranda had political aims and intended to influence governments. Those two elements are key in defining Terrorism under the 2000 Act.
There was also an intelligence assessment, served in redacted form, that said
We strongly assess that Miranda is carrying material that will aid Greenwald in releasing NSA material.
This assessment went on to request that Examining Officers use their ‘stop’ powers as a way of mitigating any risk that may be posed to UK security. Finally, it asserted that Edward Snowden holds large amount of GCHQ data whose further release would severely undermine GCHQ capabilities.
As a result of the above, and on the basis that the claim could be brought on the materials so far provided, the PII claim would be granted. All three of Miranda’s applications were refused. The only glimmer of success for Miranda was that the court asked that the two senior officers attended the trial and cross examination can be revisited then.
This is shaping up to be an interesting hearing next week.