Airport stop and search of stolen NSA data did not breach freedom of expression

Miranda v Secretary of State for the Home Department & Ors [2014] EWHC 255 (Admin) (19 February 2014)

Police stopped David Miranda at Heathrow airport and confiscated encrypted National Security Agency material that had originally been stolen by Edward Snowden. Mr Miranda was carrying the data to assist a Guardian journalist. The High Court of Justice of England and Wales rejected Mr Miranda’s arguments that the stop and search had interfered with his right to freedom of expression under English common law and the European Convention on Human Rights. The Court held that it was a proportionate measure in the circumstances, and was a permissible restriction prescribed by law in the interests of national security and safety.

Facts

David Miranda is the spouse of Glenn Greenwald, a Guardian newspaper journalist who published stories based on National Security Agency data stolen by Edward Snowden.

Mr Miranda was stopped at Heathrow airport in London by Metropolitan Police while in transit to Rio de Janeiro. He was carrying encrypted material obtained by Mr Snowden, in order to assist with Mr Greenwald’s journalistic work. The police questioned him, and took from him various items including encrypted storage devices. 

The police acted on the request of the British Security Service, under counter-terrorism stop and search powers which could only be exercised:

• in relation to a person entering or leaving the UK at a port or in a border area; and
• for the purpose of determining whether the person appears to be someone involved in “the commission, preparation or instigation of acts of terrorism”.

Mr Miranda brought a judicial review case to the High Court of Justice, arguing that the use of the stop and search powers was unlawful, because:

• they were exercised for an improper purpose;
• their use constituted a disproportionate interference with his right to freedom of expression; and
• the powers were incompatible with article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which guarantees freedom of expression.

This case note summarises how the Court dealt with the second and third arguments.

Decision

No disproportionate interference with “journalistic expression”

There is a right in English common law to “the protection of journalistic expression”, which is a “sub-class” of freedom of speech. Mr Miranda argued that his stop and search by police was a disproportionate interference with this right.

Lord Justice Laws, delivering the lead judgment, explained that freedom of speech is a fundamental right, not because it is “the lifeblood of democracy”, but because free thought, which is a condition of every person’s flourishing, needs free expression.

Where a discretionary power limits a fundamental right, its use must fulfil the “proportionality principle”. In previous case law, this had been described as requiring a fair balance to be struck between the rights of the individual and the interests of the community. However, Lord Justice Laws noted that in the case of journalistic expression, the right is given “to serve the public at large”. The balance to be struck is therefore between two aspects of the public interest: press freedom on one hand, and national security on the other.

The Court accepted evidence that there had been a pressing need for stopping Mr Miranda in the interests of national security. The external hard drive that Mr Miranda was carrying contained about 58,000 highly classified UK intelligence documents, and Government officials gave uncontradicted evidence about the dangers inherent in the release or dissemination of the material. 

The Court ultimately found that the use of the stop and search powers was a proportionate measure in the circumstances, given that its objective was legitimate and very pressing, and that it would have been pointless and ineffective to try to gain access to the material by other means such as an application to a court.

No incompatibility with freedom of expression in article 10

Article 10 of the European Convention on Human Rights provides that everyone has the right to freedom of expression, but that the exercise of this freedom may be subject to restrictions “as are prescribed by law and are necessary in a democratic society” for certain purposes, such as national security, public safety, or preventing the disclosure of information received in confidence.

The Court rejected an argument that the powers were over-broad and arbitrary, and therefore not “prescribed by law”. Lord Justice Laws cited European Court of Human Rights case law which allows individual States a wide margin of appreciation in respect of port and border controls, which was contrasted with general stop and search powers.

The Court found that the relevant anti-terrorism legislation did not confer “unfettered power”, even though it did not spell out specific constraints on power. Lord Justice Laws noted that all State power in England has legal limits, for example that it be exercised reasonably, in good faith, and for the purpose for which it is given by statute. These limits, along with the proportionality principle, were held to provide sufficient safeguards against interference with relevant rights by the State.

Finally, the Court rejected an argument that article 10 required prior scrutiny by a court in all cases where the State interfered with journalistic freedom. The claim that the stop and search powers were incompatible with article 10 therefore failed.

Commentary

Australia does not have a federal charter or bill of human rights. There is therefore no express right to freedom of expression equivalent to that found in article 10 of the European Convention that provides an independent right to bring legal action. However, freedom of expression is guaranteed under section 15 of Victoria’s Charter of Human Rights and Responsibilities, and there is an implied freedom of political communication under the Australian Constitution.

This implied freedom appears to differ from the English common law freedom of expression as explained in the Miranda case in a number of ways. The implied freedom of communication in Australia is an “indispensable incident of the system of representative government which the Constitution creates” (Lange v ABC). This may be contrasted with the free speech which Lord Justice Laws describes: “The perception of free expression as a servant of democracy, however, would tend to devalue non-political speech and justify the prohibition or abridgement of speech advocating undemocratic government… free speech is not a creature of democracy; if anything, the converse”.

There are also differences in the nature of the rights conferred. Lord Justice Laws states that free expression is a right which belongs “to every individual for his own sake”. The Australian implied freedom of political communication does not confer personal rights on individuals, but rather precludes the curtailment of the freedom by the exercise of legislative or executive power.  An Act cannot confer power upon a person or body that exceeds these constitutional restrictions, and they will therefore be acting in excess of their authority if they exercise a power under statute (such as stop and search powers) which exceeds these limits.

However, there are questions of proportionality relevant to both concepts of this freedom. An Australian law will not be valid if it is not appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the system of representative government.

The decision can be found at http://www.bailii.org/ew/cases/EWHC/Admin/2014/255.html

Louise Brown is a solicitor at King & Wood Mallesons and is currently on secondment to the Human Rights Law Centre.