Appeal court says detention of Miranda was lawful but clause under which he was held is incompatible with European human rights convention
A key clause in the Terrorism Act 2000 is incompatible with the European convention on human rights, the master of the rolls, Lord Dyson, has declared as part of a court of appeal judgment.
His judgment came in the case of a man detained at Heathrow airport for carrying files related to information obtained by the US whistleblower Edward Snowden.
Dyson’s decision will force government ministers to re-examine the act, which has now been found to be inconsistent with European law.
Dyson said that the powers contained in schedule 7 of the Terrorism Act (2000) were flawed. Schedule 7 of the Act allows travellers to be questioned in order to find out whether they appear to be terrorists. They have no right to remain silent or receive legal advice, and they may be detained for up to nine hours.
“The stop power, if used in respect of journalistic information or material is incompatible with article 10 [freedom of expression] of the [European convention on human rights] because it is not ‘prescribed by law’,” the master of the rolls said.
Welcoming the decision, Kate Goold, the solicitor representing the detained man, David Miranda, said: “The notion of a journalist becoming an accidental terrorist has been wholeheartedly rejected.
“We welcome this court’s principled and decisive ruling that schedule 7 [of the Terrorism Act] needs to come in line with other legislation to ensure that the seizure of journalistic material is protected by judicial safeguards.”
However, the judges concluded that the police decision to detain Miranda, the partner of the former Guardian journalist Glenn Greenwald, at Heathrow in 2013 was lawful.
Greenwald welcomed the judgment on Twitter:
Dyson said that the police power to stop at airports and ports was not subject to “sufficient legal safeguards to avoid the risk that it will be exercised arbitrarily. The court therefore grants a certificate of incompatibility.
“It will be a matter for parliament to decide how to provide such a safeguard. The most obvious safeguard would be some form of judicial or other independent and impartial scrutiny in such a way as to protect the confidentiality in the material.”
Issuing a certificate of incompatibility is a highly unusual development but one that is open to judges when they conclude that UK law is inconsistent with the country’s international human rights obligations.
The judgment, delivered by Dyson, along with Lord Justice Richards and Lord Justice Floyd, effectively says that the police acted within the existing law but the law itself was illegal.
“The exercise of the schedule 7 stop power in relation to Mr Miranda on 18 August 2013 was lawful...,” the judges concluded.
“But the stop power conferred by paragraph 2(1) of schedule 7 [of the Terrorism Act] is incompatible with article 10 of the convention [on human rights] in relation to journalistic material in that it was not subject to adequate safeguards against its arbitrary exercise..”
The judgment said: “The central concern is that disclosure of journalistic material (whether or not it involves the identification of a journalist’s sources) undermines the confidentiality that is inherent in such material and which us necessary to avoid the chilling effect if disclosure and to protect article 10 [freedom of expression] rights.”
The challenge brought by Miranda questioned the legality of his detention under counter-terrorism powers. He was held for nine hours.
The hearing at the court of appeal in London in December followed an earlier decision by a lower court that holding him under schedule 7 of the Terrorism Act was lawful.
Around 60,000 people a year are held in such controversial port stops. The Home Office has argued that border controls exist to check on travellers where there is insufficient information to justify an arrest.
Miranda’s first legal challenge was supported by the Guardian. The court of appeal challenge was funded by First Look Media, which publishes the online magazine the Intercept; the organisation said the appeal had been brought to defend freedom of expression and journalists’ rights.
When Miranda was stopped in August 2013, he was carrying encrypted files containing journalistic material derived from Snowden , the US National Security Agency whistleblower. His counsel, Matthew Ryder QC, told the court: “Snowden, whatever you may think of him, provided information which has been of immense public importance. In this case we are talking about journalism of unusually high quality.”
The previous court had erred in its decision, Ryder said, because it had misinterpreted the law on proportionality and the detention was incompatible with Miranda’s rights to privacy and freedom of expression under the European convention on human rights.
In 2014, three high court judges dismissed the initial challenge brought by Miranda, accepting that his detention and the seizure of computer material was “an indirect interference with press freedom” but said this was justified by legitimate and “very pressing” interests of national security.
Miranda was stopped in transit between Berlin and Rio de Janeiro after meeting the filmmaker Laura Poitras, who had been involved in making disclosures based on documents leaked by Snowden.
Miranda was carrying encrypted files, including an external hard drive containing 58,000 highly classified UK intelligence documents, “in order to assist the journalistic activity of Greenwald”.
The Guardian made his travel reservations and paid for the trip. The high court judgment said the seized material included personal information that would allow security staff to be identified, including those deployed overseas.
In the court of appeal hearing, Ryder told the judges that: “Wanting to get material off somebody and no more is not a [legitimate] schedule 7 purpose.”
The focus of a schedule 7 port stop, he maintained, should be whether or not the person targeted is preparing acts of terrorism. If the law was interpreted as the high court decided, Ryder said it “would mean that terrorism could be committed by acts that do not intend to incite violence or endanger life”.
He added: “It would mean that terrorism can be committed by acts that are themselves entirely lawful and … can be entirely lawful.”
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