On 20 February 2014 the High Court handed down the eagerly awaited judgment in the case of David Miranda v Secretary of State for the Home Department, [2014] EWHC 255 (Admin). The judgment is a disappointing one for journalism.
The facts of the case have already been detailed in an earlier post on this blog but briefly, the case concerned the now well-documented (for example here, here and here) detention of David Miranda, Guardian journalist Glen Greenwald’s partner, under Schedule 7 of the Terrorism Act 2000. Miranda was stopped and questioned for 9 hours, the maximum permissible by law, and had hard drives and other items he was carrying confiscated by the police.
Miranda brought a claim for judicial review arguing that the power under Schedule 7 power was used for an impermissible purpose, and/or there had been a breach of Article 10 either because Schedule 7 was insufficiently defined and so not ‘prescribed by law’ or because its use to detain him and confiscate the material he was carrying was disproportionate in the circumstances.
These arguments were roundly rejected by the High Court. In a decision described as ‘chilling’ by Amnesty international Lord Justice Laws, who gave the leading judgment, dismissed the application for judicial review holding that the stop was lawful and proportionate, in part due to the extremely broad way the Act defines terrorism. It has been argued that this judgment conflates journalism with terrorism and rides ‘roughshod over fundamental constitutional freedoms’.
When Miranda was first detained Lord Falconer, who helped introduce the Terrorism Act said, “I am very clear that this [Schedule 7] does not apply, either on its terms or in its spirit, to Mr Miranda.” It seems the High Court does not agree.
The Schedule 7 power permits a person to be stopped and questioned for the purpose of determining whether he appears to be ‘concerned in the commission, preparation or instigation of acts of terrorism’. Miranda’s lawyers argued that this plainly did not apply to him; the purpose of his stop was not to ascertain whether he was a terrorist but to confiscate the material he was carrying.
Indeed when the Security Service sent the original Port Circulation Sheet (PCS) requesting that the police to stop Miranda they entered the words ‘not applicable’ against the box asking for confirmation that the purpose of the examination would be to determine whether the purpose subject to the stop appears to be someone who is concerned in terrorism. It was not until the police returned the second PCS asking for confirmation that the stop was for the purpose of exercising the statuary power in Schedule 7 that a new PCS was sent with this box ticked.
However, Lord Justice Laws concluded at that;
“the purpose of the stop – 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 – fell properly within Schedule 7 of the 2000 Act on the latter’s true construction.” [36]
Further the court found that although there had been an indirect interference in journalistic expression in the circumstances this was proportionate and prescribed by law. The indirect interference in press freedom was justified by the national security concerns and the submission that Schedule 7 was over-broad and arbitrary such that it could not be said to be ‘prescribed by law’ was rejected.
What does this mean for journalism? As others have pointed out, journalists may often be in possession of sensitive material that may assist terrorism in the wrong hands. To sanction the use of powers designed to combat terrorism in this way displays a worrying tendency to conflate journalism with terrorism. As is pointed out here, it exposes any journalist working on stories touching on national security issues to the risk that they may be subject to lengthy examination and have their source material seized when travelling through ports and means that legislation designed to combat terrorism can be turned against those working on fundamentally important public interest stories.
It is precisely this behavior that saw the United Kingdom fall three places in the 2014 World Press Freedom Index, complied by Reporters Without Borders, who noted the UK’s obsession with ‘hunting down whistleblowers instead of adopting legislation to rein in abusive surveillance practices that negate privacy’.
The judgment has attracted widespread criticism, for example from the NUJ who stated that it
“represents a serious attack on press freedom and the protection of journalists’ material. That can only limit the public’s right to know what is done in its name, and is a real threat to democracy. We believe the use of anti-terrorism legislation should not be used as a battering ram against press freedom.”
The decision in this case illustrates the worrying extent to which national security concerns can override considerations of press freedom and will almost certainly have a chilling effect on freedom of expression going forward. It also highlights the incredibly broad and wide-reaching nature of Schedule 7 and the alarming ease with which this power can be misused.
Miranda has indicated (here) that he will appeal the decision.
Eloise Le Santo is a barrister at Matrix Chambers who specialises in media law.
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