Police had power to question journalists in contact with whistle blower Edward Snowden

Regina (David Miranda) v Secretary of State for the Home Department; Commissioner of Police of the Metropolis [2016] EWCA Civ 6

The UK Court of Appeal has upheld the exercise of a police power under Schedule 7 of the Terrorism Act 2000 (UK) (the Act) to stop and question a person to determine whether they are or have been 'concerned in the commission, preparation or instigation of acts of terrorism'. Importantly, the Court has also declared that Schedule 7 is incompatible with the right to freedom of expression under article 10 of the European Convention of Human Rights (the Convention), insofar as it applies to journalistic material.

Facts

Glenn Greenwald and Laura Poitras were journalists who met Edward Snowden in 2013. Mr Snowden provided them with encrypted data including UK intelligence material which had been stolen from the National Security Agency (NSA) of the United States. This material formed the basis of articles in the Guardian newspaper on 6 and 7 June 2013 and on later dates. David Miranda, the plaintiff and a Brazilian citizen, is the spouse of Mr Greenwald.

In August 2013, Mr Miranda travelled with the encrypted data from Rio de Janeiro to Berlin to collect further sensitive material from Ms Poitras. The Security Service (for which the first defendant is responsible) had been investigating Mr Snowden and was aware of Mr Miranda's movements. They briefed Detective Superintendent Stokley of SO 15, the Counter-Terrorism Command in the Metropolitan Police (the second defendant), to explore options to seize and analyse the sensitive material likely to be in his possession. DS Stokley decided to conduct a port stop under Schedule 7 of the Act, which allows an examining officer to stop and question a person entering or leaving the UK to determine whether she or he is or has been 'concerned in the commission, preparation or instigation of acts of terrorism'.

To conduct a valid port stop, the Security Service had to make a request to the police via a 'National Security Justification' (NSJ) document. After this, the Security Service had to provide information about the tactical aspects of the stop to counter-terrorism police officers in a Port Circulation Sheet (PCS). The NSJ was received by DS Stokley on Friday, 16 August 2013. It noted that Mr Miranda 'holds material which would be severely damaging to UK national security interests' and requested DS Stokley to carry out a port stop as the 'only way of mitigating the risks posed by Mr Miranda to UK national security'.

Two PCS forms were received at the National Ports Office on 16 August and 17 August respectively, but neither made clear that the purpose of the stop was to help determine whether Mr Miranda was someone concerned in the commission, preparation or instigation of acts of terrorism. Due to this, DI Woodford, the Ports Duty Officer at the time, was not satisfied that the use of Schedule 7 would be appropriate and lawful in the circumstances. A final PCS was then delivered to the police on 17 August specifying that:[Mr Miranda] is knowingly carrying material, the release of which would endanger people's lives. Additionally the disclosure, or threat of disclosure, is designed to influence a government, and is made for the purpose of promoting a political or ideological cause. This therefore falls within the definition of terrorism... DI Woodford was satisfied by this final PCS and Mr Miranda was stopped and detained at Heathrow airport under Schedule 7 while in transit on 18 August 2013. He was detained for nine hours, and the encrypted data was seized from him. Mr Miranda sought judicial review.

Decision

At first instance, the Divisional Court held that the exercise of the Schedule 7 power was lawful, proportionate, and compatible with the Convention. Mr Miranda raised five grounds of appeal as outlined below. There were two interveners in the appeal: Liberty, and Article 19, English Pen and the Media Legal Defence Initiative.

Lord Dyson, the Master of the Rolls, delivered the leading judgement of the Court of Appeal. His Honour held that the exercise of Schedule 7 was lawful in the circumstances of this case. However, he disagreed with the reasoning of the Divisional Court and declared that Schedule 7 was incompatible with article 10 of the Convention, and allowed the appeal in relation to that issue.

The dominant purpose of the Schedule 7 port stop (Grounds 1 and 2)

Mr Miranda's first ground of appeal was that the Divisional Court erred when characterising the purpose of the port stop by taking into account the Security Service's objectives in the NSJ and the state of mind of DS Stokley. Counsel for Mr Miranda argued that the Security Service's objectives fell outside of Schedule 7, which is only concerned with whether Mr Miranda appeared to be 'concerned with the commission, preparation or instigation of acts of terrorism'. Lord Dyson held that the true purpose of the stop was to give effect to the final PCS and that his was consistent with Schedule 7. Although there was overlap with the Security Service's objectives, his Honour noted that the police used their own independent judgment, and understood that they could not act as a conduit for the furtherance of the purposes of the Security Service, as evidenced by DI Woodford's rejection of the first and second PCS forms. Lord Dyson also considered that examining officers were free to rely on DS Stokley's assessments as he was their superior officer.

Mr Miranda's second ground of appeal was that the Divisional Court failed to properly consider whether the act of publishing material could, in law, be defined as an act of 'terrorism'. The relevant definition of 'terrorism' in the Act covered acts or threats which:

• endangered life, created a serious risk to the safety of the public or were designed to seriously disrupt an electronic system;
• were designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public; and
• were for the purpose of advancing a political, religious, racial or ideological cause.

Counsel for Mr Miranda argued that Parliament would not have intended a literal interpretation of this definition which would cover the act of publication. Such an interpretation would include activity that was non-violent; in pursuit of a legitimate political cause; may 'endanger life' by accident; and where the person may be 'concerned' in such activity accidentally or without knowledge. For example, the publication of an article on religious grounds against the vaccination of children for diseases would be an act of terrorism if its publication were judged to create a serious risk to public health and if it was designed to influence government policy.

Lord Dyson agreed and rejected the literal interpretation of 'terrorism' under the Act as it involves 'according to the word "terrorism" a meaning which is far removed from its ordinary meaning'. Instead, his Honour imported a corresponding mental element, such that publication of material could amount to an act of terrorism if the published material endangers another person's life or creates a serious risk to the health or safety of the public; and the person publishing the material intends to have that effect (or is reckless as to whether or not it has that effect) provided that the other elements of 'terrorism' mentioned above are satisfied. 

The proportionality of the Schedule 7 'stop' (Grounds 3 and 4)

Lord Dyson found that a court must consider the following when determining whether a measure is proportional to its objective:

• whether its objective is sufficiently important to justify the limitation of a fundamental right;
• whether it is rationally connected to that objective;
• whether a less intrusive measure could have been used; and
• whether, having regard to these matters and the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community.

Mr Miranda's third ground of appeal was that the Divisional Court erred in its approach to the fourth stage. First, it failed to recognise the status of 'journalistic material', that is, 'material acquired or created for the purposes of journalism' in the balancing exercise. Second, it failed to consider whether there was evidence of any actual risk to public safety because the relevant evidence given by police officers was merely theoretical in nature. 

Lord Dyson agreed that the balancing exercise had to proceed on the basis that the material was or might have been journalistic material due to DS Stokley's knowledge from the NSJ that the material may have been journalistic in nature. However, his Honour rejected that the police evidence was merely theoretical, emphasising that when determining the proportionality of a decision taken by the police in the interests of national security, the court should accord a substantial degree of deference to their expertise in assessing the risk to national security and in weighing it against countervailing interests.

Mr Miranda's fourth ground of appeal was that the use of Schedule 7 was disproportionate because an alternative, less intrusive mechanism was available, namely, a production order under Schedule 5 of the Act. Lord Dyson considered that although Schedule 7 was more intrusive than Schedule 5, it was also more effective because the primary purpose of the stop was to allow the police to question Mr Miranda. Also, neither the police nor the Security Service had specific knowledge of the contents of the sensitive material, which was required for the Schedule 5 process.

Schedule 7 is incompatible with the Convention (Ground 5)

Mr Miranda's fifth ground of appeal was that Schedule 7 was incompatible with article 10(2) of the Convention insofar as it applies to journalistic material because it was not 'prescribed by law' due to a lack of 'sufficient legal safeguards to avoid the risk that power will be exercised arbitrarily'.

The Divisional Court reliedheavily on Beghal v Director of Public Prosecutions [2015] 3 WLR 344, which held that Schedule 7 had sufficient safeguards to be compatible with the right to liberty (article 5) and the right to one's family and private life (article 8) under the Convention. As these safeguards apply with equal force to article 10 interferences, it was considered that if Schedule 7 is compatible with articles 5 and 8, it must also be compatible with article 10. Lord Dyson acknowledged the overlap but held that the rights are distinct, especially where article 10 concerns freedom of journalistic expression.

The Divisional Court ultimately held that the following 'important constraints' (amongst others) provided a safeguard to the arbitrary exercise of Schedule 7:

• it was restricted to those passing into and out of the country;
• it was only exercisable for a particular duration of time;
• it was geographically confined;
• it was subject to certain requirements including that explanatory notice is given; there is a procedure for complaint; consultation with a solicitor is offered; and records are kept; and
• judicial review was available.

Lord Dyson considered that the above constraints did not afford effective protection of article 10 rights insofar as they concern journalistic material. In particular, his Honour noted at [113] that:

If journalists and their sources can have no expectation of confidentiality, they may decide against providing information on sensitive matters of public interest. That is why the confidentiality of such information is so important. It is, therefore, of little or no relevance that the Schedule 7 powers may only be exercised in a confined geographical area or that a person may not be detained for longer than nine hours… In my view, the possibility of [judicial review] proceedings provides little protection against the damage that is done if journalistic material is disclosed and used in circumstances where this should not happen… Unlike the position in relation to article 5 and 8, the possibility of judicial review proceedings [in] journalistic material cases does not afford an adequate safeguard.

Underlying this holding was the decision in Sanoma Uitgevers v The Netherlands [2011] EMLR 4, which made clear that judicial oversight is required prior to, or immediately following, interferences with article 10 rights where journalists are required to reveal their sources. The lack of such oversight meant that there were insufficient safeguards to make the interference with the right 'prescribed by law'. Although Sanoma dealt only with revealing a journalist's confidential source, his Honour saw no reason in principle for drawing a distinction between that and general journalistic material. 

Commentary

By declaring that Schedule 7 is incompatible with the right to freedom of expression under the Convention, the Court of Appeal has sent a message to the UK Parliament that journalism deserves protection from the Schedule 7 regime. It remains to be seen whether the UK Parliament will make any legislative changes to the Schedule 7 regime to bring it into line with the Convention. The most obvious amendment is to implement some form of impartial and independent scrutiny before, or in urgent cases, immediately after, Schedule 7 is invoked with respect to journalistic material.

In March 2015, before this appeal was heard, the UK government amended the Code of Practice for examining officers under Schedule 7 so that they no longer examine journalistic material at all. In particular, paragraph 40 of the Code of Practice provides that examining officers 'should cease reviewing, and not copy, information which they have reasonable grounds for believing is…special procedure material [under section 14] of the Police and Criminal Evidence Act 1984'. Section 14 defines 'Special procedure material' as 'journalistic material'. Given this amendment, it may be that no further steps will be taken by the UK government following this decision. 

It is also worth noting that the Court of Appeal's discussion of the definition of 'terrorism' and its decision to move away from the strict literal approach adopted by the Divisional Court may go some way in assisting police and security authorities to exercise their police powers appropriately under the Act.

Rohan Nanthakumar is a lawyer at Allens.