Case Summary and Outcome

The Civil Division of the Court of Appeal of England and Wales (EWCA) ruled that the police lawfully exercised the vested authority under Schedule 7 of the Terrorism Act 2000 against the applicant, David Miranda, which empowers officers to stop, question and/or detain a person at a port to determine whether he “is or has been concerned in the commission, preparation or instigation of acts of terrorism”. David Miranda was stopped by the police at Heathrow Airport and questioned about items in his possession, including hard drives with encrypted data from the National Security Agency (NSA) acquired by Edward Snowden. Miranda, although not a journalist himself, had been carrying the materials in assistance to his partner and journalist Glenn Greenwald, who had written articles in The Guardian about Snowden Revelations. The port stop had been initiated upon the request of the UK Security Service, which had convinced the police to use their anti-terrorism powers on the grounds that the (threat of) disclosure of the material would endanger people’s lives and influence a government by promoting a political or ideological cause. The Court of Appeal upheld the conclusion of the lower court that the stop power had been used for a lawful purpose and in a proportionate manner. But, unlike the lower court – and most importantly – the EWCA recognised that journalist activities require a higher degree of protection against the disclosure of journalistic material, which Schedule 7 failed to provide. The Court further held that such authority set out in Schedule 7 is incompatible with Article 10 of the European Convention on Human Rights (ECHR) in relation to journalistic material since it fails to set forth adequate safeguards. Accordingly, the judges urged the UK Parliament to introduce appropriate safeguards in anti-terrorism legislation some form of judicial or other independent scrutiny to protect the confidentiality of journalistic material.

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Facts

The applicant, Mr David Miranda, is a Brazilian citizen and the partner of Mr Glenn Greenwald, a former freelance journalist for The Guardian. In 2012, Greenwald had been in contact with whistleblower Edward Snowden, who provided him and another journalist, Laura Poitras, with encrypted data that had been stolen from the National Security Agency (NSA) of the United States. The data included UK intelligence material that formed the basis of articles in The Guardian in June 2013 and later dates.

On 12 August 2013, Miranda travelled from Rio de Janeiro to Berlin to meet Laura Poitras. In assistance to Greenwald, Miranda was carrying encrypted material derived from the data obtained by Edward Snowden. The purpose of his trip was to collect computer drives containing further such material.

On 18 August 2013, Miranda was stopped by the Metropolitan Police at Heathrow Airport, purportedly under paragraph 2(1) of Schedule 7 to the Terrorism Act 2000 (hereafter: “Schedule 7”). He was questioned and various items in his possession, notably encrypted storage devices, were confiscated. The police found an external hard drive that contained approximately 58,000 highly classified UK intelligence documents. Miranda was detained for 9 hours, the maximum period permitted by para. 6(4) of Schedule 7 at the time.

The port stop had been carried out by the Counter-Terrorism Command in the Metropolitan Police and his team, using its powers under Schedule 7 upon the request of the Security Service. The main objectives of the Security Service had been “to understand the nature of any material [Miranda] is carrying, [and] mitigate the risks to national security that this material poses” [para. 11].

In the first so-called Port Circulation Sheet (“PCS”), provided by the Security Service to the counter-terrorism police officers, the box asking for confirmation “that the purpose of the examination would be to assist in deciding whether the person appears to be someone who is or has been concerned in the Commission, Preparation or Instigation of acts of terrorism (CPI)” was marked as ‘Not Applicable’. Instead, the Security Service had written that it wanted to establish the nature of Miranda’s activity, assess the risk that Miranda poses to UK national security and mitigate as appropriate” [para. 13]. A second PCS was sent to the National Ports Office, also containing the ‘Not Applicable’ mark with a plain reference to Schedule 7 and a questions list that should be asked of Mr Miranda. The responsible officers considered this as an indication that the Security Service was reluctant to confirm that the stop aimed to determine whether Miranda was a person concerned in CPI [para. 15] and thus sent the sheet back to the Security Service for explicit confirmation.

In the third PCS, the Security Service finally clarified that they believed Miranda to “knowingly carry material, the release of which would endanger people’s lives” and that “the disclosure, or threat of disclosure, is designed to influence a government, and made for the purpose of political or ideological cause”, all of which would fall within the definition of terrorism [para. 16]. Once again, they requested that Miranda would be examined by the police under Schedule 7. The Ports Duty Officer for Heathrow Airport found this satisfactory to conduct the Schedule 7 stop [para. 17].

When stopped, Miranda claimed that the stop is carried out without any legal authority. On 21 August 2013, he lodged a complaint with the High Court in London, stating that the use of the Schedule 7 stop power against him on 18 August 2013 was unlawful because (i) the power was exercised for a purpose not permitted by the statute, and (ii) its use constituted a disproportionate interference with his rights under Articles 5, 8 and 10 of the European Convention on Human Rights (ECHR). Miranda also argued that using the stop power as such is incompatible with the protection afforded under Article 10 ECHR for journalists and journalistic material.

The High Court dismissed Miranda’s claims. Miranda then raised five grounds of appeal with the Court of Appeal, stating that:

1. The High Court had 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 High Court had erred in assessing the dominant purpose for which the Schedule 7 power was in fact used;
3. The High Court had 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 High Court had erred in its assessment of proportionality in concluding that the use of Schedule 5 of the Terrorism Act would not have been possible or practical; and
5. The Schedule 7 stop power was not compatible with Article 10 ECHR because it was not “prescribed by law” as required by Article 10(2) ECHR.

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Decision Overview

Lord Dyson, Master of the Rolls at the time, wrote the judgment of the Court of Appeal (hereafter: “the Court”), which Lord Justice Richards and Lord Justice Floyd agreed to.

Key issues

The main questions before the Court were (i) whether the stop power had been exercised for a purpose not permitted by Schedule 7, (ii) whether the stop power had been exercised proportionately, and (iii) whether the use of the stop power as such was incompatible with Article 10 ECHR in relation to journalistic material.

Purpose of the stop and its lawfulness

The Court first examined the purpose of the stop before considering its lawfulness in light of Schedule 7. It approved the test applied by the High Court to determine the “true and dominant” purpose where there is more than one purpose (see R v Southwark Crown Court, ex p Bowles [1998] AC 641, [1998] UKHL 16) and confirmed that the purpose to be analysed was the one for which the examining officers had executed the stop; not for which the Security Services had requested it [para. 26]. 

The Court held that the true and dominant purpose of the stop had been for the examining officers – as well for their superior officers – to give effect to the third information sheet. Notably, after the second sheet the superior police officers demanded confirmation from the Security Service that the stop would be aimed at determining whether Miranda had been concerned in the commission, preparation or instigation of acts of terrorism (CPI). The response of the Security Service in the third sheet had then persuaded the police that they had proper authority to proceed under Schedule 7. The Court noted that the fact that the stop power had ultimately promoted the different (but overlapping) purpose of the Security Service, did not mean, however, that the power had not been exercised for the Schedule 7 purpose as the police had also had their own purpose of determining whether Miranda appeared to be a person concerned in CPI [para. 30-31].

As to the question of whether the true and dominant purpose fell properly within the scope of Schedule 7, the Court first observed that the (superior) police officers were entitled to rely on information provided by or assessments made by the Security Service unless it would have been unreasonable for them to do so. The police’s purpose in the present case could therefore not be considered as “speculative” [para. 36-37]. Furthermore, the Court held that the police were entitled to consider the release of the material in Miranda’s possession to endanger people’s lives, and to think that the material might be released in order “to advance a political cause” and “to influence a government”. In other words: the police were entitled to think that Miranda was potentially involved in “terrorism” [para. 58].

Miranda’s argument that an “act of terrorism” does not include the “publication of material” was rejected, even though the Court had adopted a narrower definition of terrorism than the High Court, i.e., a definition in which bad intentions or recklessness as to the potential effects are key elements [para. 51-54]. In light of the foregoing, the Court concluded that the stop power under Schedule 7 had been exercised for a lawful purpose [para. 58].

Proportionality

1. Journalistic material

Miranda argued that the stop had caused a disproportionate interference with his right to freedom of expression as guaranteed by Article 10 ECHR. According to Miranda, a fair balance had not been struck between his Article 10 ECHR rights and the wider interests of the community [para. 59-60], especially now that journalistic freedom was engaged since he had been carrying “journalistic material” [para. 61].

The Security Service and the police, on the other hand, submitted that “if those who authorised and conducted the port stop did not know (and could not reasonably have been expected to know) that Mr Miranda was in possession of journalistic material, then the proportionality of the decision to conduct the stop cannot be assessed on the basis that he was carrying such material” (see Pentikainen v. Finland, no. 11882/10, 20 October 2015) [para. 62]. 

The Court agreed with the State authorities’ reasoning and went on to examine whether the police knew or ought to have known that Miranda was in possession of journalistic material [para. 64]. It first observed that the examining officers had only been aware of the information that was contained in the final information sheet. “The sheet said nothing about the nature of the material except that its release would endanger people’s lives and that its (threat of) disclosure was designed to influence a government and was made for a political or ideological cause. It did not refer to Mr Snowden, Mr Greenwald, The Guardian or journalism. Moreover, when he was questioned by the examining officers, Mr Miranda did not say that he was a journalist or that the material that he was carrying was journalistic material” [para. 65]. The Court, however, pointed out that a superior police officer within the SO 15 – who was directing the examining officers – had actually been aware that Miranda worked very closely with a journalist [para. 66-67]. The Security Service had informed the superior officer “that Mr Miranda was carrying items that would assist in Mr Greenwald releasing more of the material that was judged to be in Mr Greenwald’s possession” [para. 67]. In view of what the superior police officer had known, the Court concluded that the balancing exercise had to be conducted on the basis that the material was or might have been journalistic material. 

2. Balancing interests

With regard to the balancing exercise, Miranda claimed that there was no “compelling evidence” of a serious risk of harm to the public or national security arising from Miranda being in the possession of the material in question. It was no more than a “theoretical” risk that would arise only if key parts of the data were released in the public domain. Moreover, there was nothing to suggest that Miranda, Greenwald and The Guardian would not publish the information “with the degree of responsibility that was appropriate for the circumstances of the case” (i.e., responsible journalism) [para. 78].

The Security Service and the SO 15, on the contrary, referred to various witness statements which indicated that the material seized was highly likely to describe intelligence activities vital to the security of the UK, the compromise of which would do serious damage to UK national security [para. 68-71]. 

The Court found no reason to disagree with the assessment of risk made by the national authorities, as the police and the Security Service have the expertise and access to secret intelligence material which rightly make it very difficult to challenge such an assessment in a court of law [para. 82]. It further noted that the potential harm to the community was very substantial [para. 83]. The Court concluded that the compelling national security interests “clearly outweighed” Miranda’s Article 10 rights in this case [para. 84], which rendered the decision to exercise the stop power proportionate.

3. Subsidiarity

As a subset of the proportionality ground, Miranda claimed that the use of the Schedule 7 stop power had been disproportionate because a less intrusive alternative had been available, namely a production order under Schedule 5. 

The Court noted that Schedule 5 contained “two principal weaknesses”, leaving it less effective than the Schedule 7 stop power. Given the seriousness of the security interests potentially at stake, the police were entitled to adopt the procedure which they considered likely to be the most effective. According to the Court, the decision not to invoke Schedule 5 did not make the exercise of the Schedule 7 stop power disproportionate [para. 91-93].

Incompatibility of the stop power with Article 10 ECHR

The last question before the Court was whether the Schedule 7 stop power (as such), if used in respect of journalistic information or material, is incompatible with Article 10 ECHR in that it is not “prescribed by law” as required by Article 10(2) ECHR. Miranda complained that the stop power is not prescribed by law since it is not subject to “sufficient legal safeguards to avoid the risk that power will be exercised arbitrarily and thus that unjustified interference with a fundamental right will occur” (referring to Beghal v Director of Public Prosecutions [2015] 3 WLR 344, [2015] UKSC 49) [para. 94]. More specifically, there is a lack of independent scrutiny of the exercise of the stop power [para. 97].

The Court first reiterated the principles as established in the previous case law of the European Court of Human Rights (ECtHR) on compulsory disclosure of journalistic materials [para. 100]:

• “The protection of journalistic sources must be attended with legal procedural safeguards commensurate with the importance of the article 10 principle at stake” (referring to Sanoma Uitgevers v. the Netherlands, no. 38224/03, 14 September 2010, para. 88);
• “First and foremost among these safeguards is the guarantee of review by a judge or other independent and impartial decision-making body of any requirement that a journalist hand over material concerning a confidential source” (referring to Sanoma, para. 90);
• “The judge or other independent and impartial body must be in a position to carry out the exercise of weighing the potential risks and respective interests prior to disclosure. The decision to be taken should be governed by clear criteria” (referring to Sanoma, para. 92);
• “The exercise of an independent review that takes place only after the handing over of material capable of revealing such sources would undermine the very essence of the right to confidentiality and cannot therefore constitute a legal procedural safeguard commensurate with the rights protected by article 10” (referring to Sanoma, para. 91);
• “In urgent cases, where it is impracticable for the authorities to provide elaborate reasons, an independent review carried out at the very least prior to the access and use of obtained materials should be sufficient to determine whether any issue of confidentiality arises, and if so, whether the public interest invoked by the investigating authorities outweighs the general public interest in source protection” (referring to Sanoma, para. 91);
• “The protection of journalistic sources is one of the cornerstones of freedom of the press. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest” (citing Nordisk Film & TV A/S v. Denmark, no. 40485/02, 8 December 2005).

Significantly, the Court noted that the instant case is not about disclosure of a journalist’s source; the source is known. The question is rather whether prior (or in an urgent case: immediate post factum) judicial authorisation is required as an adequate safeguard before journalistic material can be obtained in a case where the identity of the source is known [para. 102]. Referring to the ECtHR’s decision in Nagla v. Latvia (no. 73469/10, 16 July 2013), the Court concluded that the protection of a journalist’s sources is “no more than one aspect of a journalist’s freedom of expression”, and that there is “no reason to draw a distinction between disclosure of journalistic material simpliciter and disclosure of journalist material which may identify a confidential source” [para. 107].

The Court also noted that the conclusion of the High Court that Schedule 7 was compatible with Article 10 ECHR was partly based on the reasoning in Beghal v Director of Public Prosecutions [2015] 3 WLR 344, [2015] UKSC 49. It must be noted that this decision only concerned the compatibility of Schedule 7 with Articles 5, 6 and 8 ECHR, not Article 10. The State authorities submitted that the safeguards which were considered sufficient in Beghal applied with equal force to an interference with Article 10 rights, and therefore, if Schedule 7 was deemed compatible with Articles 5-6 and especially Article 8, it must also be considered compatible with Article 10 [para. 109]. The Court rejected this reasoning and held that Articles 8 and 10 (although there is often overlap) are distinct, particularly where Article 10 concerns freedom of journalistic expression. Referring to the ECtHR case of Telegraaf Media Nederland, no. 39315/06, 22 February 2013, the Court stressed that judicial review after the event “cannot cure a breach of article 10 resulting from the disclosure of a confidential source or other confidential material” [para. 110]. It concluded that the differences between Article 10 in relation to journalistic material on the one hand and Articles 5 and 8 on the other, are such that the reasoning of Beghal is not applicable to the present case [para. 111].

Turning to the specific safeguards as laid down in Schedule 7, the Court recognised that the following conditions indeed function as “constraints on the exercise of power” [para. 113]:

• “The requirements of the general law that the power be exercised on a reasoned basis, proportionately and in good faith”;
• “The limitation on the meaning of terrorism given by reference to the mental or purposive elements prescribed by section 1(1)(b) and (c) of TACT”;
• “The fact that the power may only be exercised “at a port or in the border area”; and
• “The fact that the power of detention is limited to 9 hours.”

The Court did however not agree with the High Court that these safeguards afford effective protection of journalists’ Article 10 rights [para. 113]. On the contrary, the Court held that in the context of protecting journalistic confidentiality, it is of little or no relevance that the Schedule 7 stop power may only be exercised in a confined geographical area or that a person may not be detained for longer than 9 hours. The bottom line 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”. As the Court put it: “If journalists and their sources can have no expectation of confidentiality, they may decide against providing information on sensitive matters of public interest”. Although the requirement that the powers must be exercised rationally, proportionally and in good faith may provide some degree of protection, this can only be effectuated by “the possibility of judicial review proceedings”. According to the Court, “the possibility of judicial proceedings provides little protection against the damage that is done if journalistic material is disclosed and used in circumstances where this should not happen”. None of the constraints could therefore be considered adequate safeguards as required by Article 10 ECHR [para. 113].

Conclusion

Overall, the Court held that the use of the Schedule 7 stop power against Miranda in 2013 had been lawful. But it declared the Schedule 7 stop power incompatible with Article 10 ECHR in respect of journalistic material since the law did not provide adequate safeguards against its arbitrary exercise. The Court left it for Parliament to provide additional protection, the most obvious being some form of judicial or other independent scrutiny in such a way as to preserve the confidentiality of journalistic material [para. 119].

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