Appeal court says detention of Miranda was lawful but clause under which he was held is incompatible with European human rights convention
The court of appeal rules in the David Miranda case – video
A key clause in the Terrorism Act 2000 is incompatible with the European convention on human rights, the master of the rolls, Lord Dyson, has declared as part of a court of appeal judgment.
The decision came in the case of David Miranda, who was detained at Heathrow airport in 2013 for carrying files related to information obtained by the US whistleblower Edward Snowden.
The court of appeal’s judgment on Tuesday will force government ministers to re-examine the act.
Dyson, who made the ruling along with Lord Justice Richards and Lord Justice Floyd, said the powers contained in schedule 7 of the Terrorism Act 2000 were flawed. Schedule 7 allows travellers to be questioned to find out whether they appear to be terrorists. They have no right to remain silent or receive legal advice and they may be detained for up to nine hours.
“The stop power, if used in respect of journalistic information or material is incompatible with article 10 [freedom of expression] of the [European convention on human rights] because it is not ‘prescribed by law’,” said Dyson, the most senior civil judge in England and Wales.
The judgment continued: “If journalists and their sources can have no expectation of confidentiality, they may decide against providing information on sensitive matters of public interest.
“The court of appeal ruling rejects the broad definition of terrorism advanced by government lawyers. The correct legal definition of terrorism, the court of appeal has now ruled, requires some intention to cause a serious threat to public safety such as endangering life.”
Welcoming the decision, Kate Goold, representing Miranda, said: “The notion of a journalist becoming an accidental terrorist has been wholeheartedly rejected. We welcome this court’s principled and decisive ruling that schedule 7 [of the Terrorism Act] needs to come in line with other legislation to ensure that the seizure of journalistic material is protected by judicial safeguards.”
However, the judges concluded that the police decision to detain Miranda, the partner of the former Guardian journalist Glenn Greenwald, at Heathrow was lawful.
Dyson said the police power to stop at airports and ports was not subject to “sufficient legal safeguards to avoid the risk that it will be exercised arbitrarily. The court therefore grants a certificate of incompatibility”.
“It will be a matter for parliament to decide how to provide such a safeguard,” he added. “The most obvious safeguard would be some form of judicial or other independent and impartial scrutiny in such a way as to protect the confidentiality in the material.”
Issuing a certificate of incompatibility is highly unusual but open to judges when they conclude that UK law is inconsistent with the country’s international human rights obligations.
The judgment in effect says the police acted within the existing law but the law itself was illegal.
“The exercise of the schedule 7 stop power in relation to Mr Miranda on 18 August 2013 was lawful…” the judges concluded. “But the stop power conferred by paragraph 2(1) of schedule 7 [of the Terrorism Act] is incompatible with article 10 of the convention [on human rights] in relation to journalistic material in that it was not subject to adequate safeguards against its arbitrary exercise.”
The judgment said: “The central concern is that disclosure of journalistic material [whether or not it involves the identification of a journalist’s sources] 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 [freedom of expression] rights.”
The challenge brought by Miranda questioned the legality of his nine-hour detention under counter-terrorism powers.
The hearing at the court of appeal in London in December followed an earlier decision by a lower court that holding him was lawful.
Approximately 60,000 people a year are held in such controversial port stops. The Home Office has argued that border controls exist to check on travellers where there is insufficient information to justify an arrest.
David Miranda and his partner, former Guardian journalist Glenn Greenwald. Photograph: Janine Gibson for the Guardian
Liberty, The human rights campaign group, welcomed what it described as a “landmark judgment”. Rosie Brighouse, its legal officer, said: “This judgment is a major victory for the free press. Schedule 7 has been a blot on our legal landscape for years – breathtakingly broad and intrusive, ripe for discrimination, routinely misused. Its repeal is long overdue.
“It is also a timely reminder of how crucial the Human Rights Act is for protecting journalists’ rights. Once again it has come to the rescue of press freedom in the face of arbitrary abuse of power by the state.”
Miranda’s first legal challenge was supported by the Guardian. The court of appeal challenge was funded by First Look Media, which publishes the online magazine the Intercept. The organisation said the appeal had been brought to defend freedom of expression and journalists’ rights.
When Miranda was stopped, he was carrying encrypted files containing journalistic material derived from Snowden, the US National Security Agency whistleblower. His counsel, Matthew Ryder QC, told the court: “Snowden, whatever you may think of him, provided information which has been of immense public importance. In this case we are talking about journalism of unusually high quality.”
The previous court had erred in its decision, Ryder said, because it had misinterpreted the law on proportionality and the detention was incompatible with Miranda’s rights to privacy and freedom of expression under the European convention on human rights.
In 2014, three high court judges dismissed the initial challenge, accepting that Miranda’s detention and the seizure of computer material was “an indirect interference with press freedom” but said this was justified by legitimate and “very pressing” interests of national security.
Miranda was stopped in transit between Berlin and Rio de Janeiro after meeting the film-maker Laura Poitras, who had been involved in making disclosures based on documents leaked by Snowden.
Miranda was carrying encrypted files, including an external hard drive containing 58,000 highly classified UK intelligence documents, “in order to assist the journalistic activity of Greenwald”.
The Guardian made his travel reservations and paid for the trip. The high court judgment said the seized material included personal information that would allow security staff to be identified, including those deployed overseas.
In the court of appeal hearing, Ryder told the judges: “Wanting to get material off somebody and no more is not a [legitimate] schedule 7 purpose.”
The focus of a schedule 7 port stop, he maintained, should be whether or not the person targeted is preparing acts of terrorism. If the law was interpreted as the high court decided, Ryder said it “would mean that terrorism could be committed by acts that do not intend to incite violence or endanger life”.
He added: “It would mean that terrorism can be committed by acts that are themselves entirely lawful and … can be entirely lawful.”