Access to Public Information, National Security, Surveillance
Electronic Privacy Information Center v. Department of Justice Criminal Division
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The England and Wales Court of Appeal ruled that paragraph 2(1) of Schedule 7 to the Terrorism Act 2000 (“TACT”) was not compatible with Article 10 of the European Convention on Human Rights (“ECHR” or “Convention”) because it did not provide adequate safeguards against its arbitrary exercise. David Miranda, the partner of Glenn Greenwald, the journalist renowned for breaking the Edward Snowden story, was questioned at Heathrow airport and items, including encrypted storage devices, were seized under paragraph 2(1) of Schedule 7 to the Terrorism Act 2000 (“TACT”). Miranda filed a complaint arguing that this action was unlawful. The Court’s main concern was that disclosure of journalistic material undermines the confidentiality that is inherent in such material and which is necessary to avoid the chilling effect of disclosure and to protect Article 10 rights. It said that Schedule 7 powers must be exercised rationally, proportionately and in good faith which provides a degree of protection but that the only safeguard against the powers not being so exercised is the possibility of judicial review proceedings which gives little protection against the damage that is done if journalistic material is disclosed and used in circumstances where this should not happen.
On 18 August 2013, David Miranda, partner of Glenn Greenwald, the journalist renowned for breaking the Edward Snowden story, was questioned at Heathrow airport and items, including encrypted storage devices, were seized under paragraph 2(1) of Schedule 7 to the Terrorism Act 2000 (“TACT”). Miranda filed a complaint arguing that this action was unlawful. 
The TACT permitted an examining officer at a port, border or international rail station to question anyone entering or leaving to determine whether the person appears to be a terrorist, and this power could be exercised whether or not there were grounds for suspecting that the person has had any such involvement in terrorism.
There were three issues before the lower court. First, whether the power conferred by the TACT to stop and question a person at a port or border to determine whether he or she is “concerned in the commission, preparation or instigation of acts of terrorism” permitted the police to stop Mr. Miranda. Second, even if TACT did grant such a power, whether the use of that power was nevertheless disproportionate to any legitimate aim. And third, whether the power in para 2(1) power violates Article 10 of the ECHR.  The lower court decided that the power in para 2(1) was exercised for a purpose permitted by the statute, its use was not a disproportionate, and the use of the power was compatible with Article 10 ECHR. 
Miranda appealed the above decision on five grounds: 1) the court erred in determining the purpose of the examining officers who conducted the stop by reference to information and judgments made by other persons, namely the Security Service; 2) the court erred in assessing the dominant purpose for which the Schedule 7 power was in fact used; 3) the court adopted a flawed approach to the question of proportionality by failing to consider whether there was evidence of any actual risk to public safety that justified the use of the Schedule 7 power to seize journalistic material; 4) the court erred in its assessment of proportionality in concluding that the use of TACT would not have been possible or practical, and 5) the Schedule 7 power is not compatible with Article 10 of the Convention because it is not “prescribed by law” as required by Article 10(2).
Lord Justice Richards and Lord Justice Floyd delivered the judgment for the England and Wales Court of Appeal. The Court began by stating that the fact that the material seized was allegedly journalistic material was central to the third, fourth and fifth grounds of appeal.
With regard to the interpretation of the definition of terrorism, the Court rejected the literal interpretation that had been adopted by the lower courts, holding that Parliament must have intended for there to be a mental element to the definition of terrorism because “If Parliament had intended to provide that a person commits an act of terrorism where he unwittingly or accidentally does something which in fact endangers another person’s life, I would have expected that, in view of the serious consequences of classifying a person as a terrorist, it would have spelt this out clearly.” [53-54] However, the Court also added that this would not preclude the publication of material from constituting terrorism if it did indeed endanger a person’s life or created a serious risk to the health or public safety and the person publishing the material either intended or was reckless as to whether it would have that effect.  It was held that the main purpose of the Schedule 7 stop was to give effect to the Port Circulation Sheet (“PCS”) that was completed by the Security Services following dialogue between the Security Service and the Ports Officers and was not an improper purpose. [32-37] The Court held that it was not necessary for authorities to have formed the view that the material would be released for a political cause; it was sufficient for them to have considered that it might be released. Thus, the court found that the power provided by Schedule 7 was exercised for a lawful purpose. 
The Court agreed with the lower court’s assessment that the fact that Miranda did not immediately appear to be a journalist to authorities was relevant as it would be unreasonable to criticize an authority for failing to give proper weight to the importance of the freedom to publish journalistic material if the authority did not know or could not reasonably have known that it was journalistic material. Thus, it was necessary to determine whether authorities knew or ought to have known that Mr. Miranda was in possession of journalistic material.  It was held that, although Mr. Miranda was not a journalist, he worked very closely with the journalist Mr. Greenwald, and authorities were aware of this. Therefore, the balancing exercise must be conducted on the basis that the material Miranda was carrying was or might have been journalistic. 
The Court rejected the argument that the use of the Schedule 7 stop power against Mr. Miranda was unjustified and disproportionate. While the court felt that it was interference with freedom of the press, it was held that competing national security interests outweighed Miranda’s Article 10 rights. It was held that “considerable deference” should be given to decisions to invoke Schedule 7 powers. 
Finally, with regard to whether the Schedule 7 power was compatible with Article 10 of the Convention, the Court held that “The central concern is that disclosure of journalistic material (whether or not it involves the identification of a journalist’s source) undermines the confidentiality that is inherent in such material and which is necessary to avoid the chilling effect of disclosure and to protect Article 10 rights.” The Court accepted that Schedule 7 powers must be exercised rationally, proportionately, and in good faith to provide a degree of protection. However, the Court considered the fact that the only recourse when the powers were not exercised in such a manner was the possibility of judicial review proceedings to fall short of being adequate safeguards against arbitrary decision-making. 
Thus, it was held that “the stop power conferred by para 2(1) of Schedule 7 is incompatible with Article 10 of the Convention in relation to journalistic material in that it is not subject to adequate safeguards against its arbitrary exercise.” The Court stated that it would be up to Parliament to decide how to provide such protection but the most obvious safeguard was a form of judicial or other independent and impartial scrutiny that protects the confidentiality in the material. 
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case expands expression because it requires that Parliament provide adequate safeguards against the arbitrary exercise of power that may compromise journalistic material.
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