David Miranda v The Secretary of State for the Home Department (1st Defendant) The Commissioner of the Police of the Metropolis (2nd Defendant) (1) Liberty and Others (Interveners)

JurisdictionEngland & Wales
JudgeLord Justice Laws,Mr Justice Ouseley,Mr Justice Openshaw
Judgment Date19 February 2014
Neutral Citation[2014] EWHC 255 (Admin)
Docket NumberCase No: CO/11732/2013
CourtQueen's Bench Division (Administrative Court)
Date19 February 2014

[2014] EWHC 255 (Admin)

IN THE HIGH COURT OF JUSTICE

DIVISIONAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Laws

Mr Justice Ouseley

Mr Justice Openshaw

Case No: CO/11732/2013

Between:
David Miranda
Claimant
and
The Secretary of State for the Home Department
1st Defendant
The Commissioner of the Police of the Metropolis
2nd Defendant

and

(1) Liberty
(2) English Pen, Article 19 & Media Legal Defence Initiative
(3) Coalition of Media & Free Speech Organisations
Interveners

Mr Matthew Ryder QC, Mr Edward CravenandMr Raj Desai (instructed by Bindmans LLP) for the Claimant

Mr Steven Kovats QC and Mr Julian Blake (instructed by The Treasury Solicitor) for the 1 st Defendant The Secretary of State

Mr Jason Beer QC, Mr Ben BrandonandMr Ben Watson (instructed by The Directorate of Legal Services) for the 2 nd Defendant The Commissioner of the Police of the Metropolis

(1) Mr Alex Bailin QC and Ms Alison Macdonald, (2)Mr Can YeginsuandMr Anthony Jonesand (3)Mr Guy Vassall-adamsandMr Tim Cooke-Hurle for the Interveners

Lord Justice Laws

INTRODUCTION

1

This case arises from the detention of the claimant by officers of the Metropolitan Police at Heathrow Airport on 18 August 2013, purportedly under paragraph 2(1) of Schedule 7 to the Terrorism Act 2000. He was questioned and items in his possession, notably encrypted storage devices, were taken from him. He says that all this was done without any legal authority.

2

The claim raises three questions. The first is whether, on the facts of the case, the power conferred by paragraph 2(1) of Schedule 7 to the Terrorism Act 2000 to stop and question a person at a port or border area for the purpose of determining whether he appears to be "concerned in the commission, preparation or instigation of acts of terrorism" allowed the police to stop the claimant on 18 August. The second is whether, if it did, the use of the power was nevertheless disproportionate to any legitimate aim. The third is whether upon its true construction the paragraph 2(1) power is repugnant to the right of freedom of expression guaranteed by Article 10 of the European Convention on Human Rights and Fundamental Freedoms (ECHR).

THE TERRORISM ACT 2000

3

S.1 of the Act of 2000 provides in part:

"(1) In this Act 'terrorism' means the use or threat of action where—

(a) the action falls within subsection (2),

(b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and

(c) the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause.

(2) Action falls within this subsection if it—

(a) involves serious violence against a person,

(b) involves serious damage to property,

(c) endangers a person's life, other than that of the person committing the action,

(d) creates a serious risk to the health or safety of the public or a section of the public, or

(e) is designed seriously to interfere with or seriously to disrupt an electronic system."

S.1(4) shows that neither the action, any victim, the public or the government are confined to events in connection with the United Kingdom.

4

S.40(1)(b):

"(1) In this Part 'terrorist' means a person who—

(b) is or has been concerned in the commission, preparation or instigation of acts of terrorism."

5

Schedule 5 is material to the argument on proportionality. It is given effect by s.37, which appears in Part IV of the Act, cross-headed "Terrorist Investigations". It provides in part:

"1(1) A constable may apply to a justice of the peace for the issue of a warrant under this paragraph for the purposes of a terrorist investigation.

(2) A warrant under this paragraph shall authorise any constable—

(a) to enter premises mentioned in sub-paragraph (2A) [whose details are not material],

(b) to search the premises and any person found there, and

(c) to seize and retain any relevant material which is found on a search under paragraph (b).

5(1) A constable may apply to a Circuit judge or a District Judge (Magistrates' Courts) for an order under this paragraph for the purposes of a terrorist investigation.

(2) An application for an order shall relate to particular material, or material of a particular description, which consists of or includes excluded material or special procedure material.

(3) An order under this paragraph may require a specified person—

(a) to produce to a constable within a specified period for seizure and retention any material which he has in his possession, custody or power and to which the application relates…

(4) For the purposes of this paragraph—

(a) an order may specify a person only if he appears to the Circuit judge or the District Judge (Magistrates' Courts) to have in his possession, custody or power any of the material to which the application relates…

6(1) A Circuit judge or a District Judge (Magistrates' Courts) may grant an application under paragraph 5 if satisfied—

(a) that the material to which the application relates consists of or includes excluded material or special procedure material…

(c) that the conditions in sub-paragraphs (2) and (3) are satisfied in respect of that material.

(2) The first condition is that—

(a) the order is sought for the purposes of a terrorist investigation, and

(b) there are reasonable grounds for believing that the material is likely to be of substantial value, whether by itself or together with other material, to a terrorist investigation…

10(1) An order of a Circuit judge or a District Judge (Magistrates' Courts) under paragraph 5 shall have effect as if it were an order of the Crown Court…

13(1) A constable may apply to a Circuit judge or a District Judge (Magistrates' Courts) for an order under this paragraph requiring any person specified in the order to provide an explanation of any material—

(b) produced or made available to a constable under paragraph 5."

By paragraph 4 of Schedule 5 "excluded material" has the meaning given by s.11, and "special procedure material" has the meaning given by s.14 of the Police and Criminal Evidence Act 1984. Thus "excluded material" includes "journalistic material" (viz. "material acquired or created for the purposes of journalism") held in confidence (s.11(1)(c) read with s.13(1)). "Special procedure material" includes "journalistic material, other than excluded material" (s.14(1)(b)).

6

Schedule 7 is given effect by s.53, which appears in Part V of the Act, cross-headed "Counter-terrorist Powers". It provides in part:

"1 In this Schedule 'examining officer' means any of the following—

(a) a constable…

2(1) An examining officer may question a person to whom this paragraph applies for the purpose of determining whether he appears to be a person falling within section 40(1)(b).

(2) This paragraph applies to a person if—

(a) he is at a port or in the border area, and

(b) the examining officer believes that the person's presence at the port or in the area is connected with his entering or leaving Great Britain or Northern Ireland…

(4) An examining officer may exercise his powers under this paragraph whether or not he has grounds for suspecting that a person falls within section 40(1)(b).

(5) A person who is questioned under paragraph 2… must—

(a) give the examining officer any information in his possession which the officer requests;

(b) give the examining officer on request either a valid passport which includes a photograph or another document which establishes his identity;

(c) declare whether he has with him documents of a kind specified by the examining officer;

(d) give the examining officer on request any document which he has with him and which is of a kind specified by the officer."

Paragraph 6 empowers an examining officer to detain a person subject to examination under paragraph 2 for up to 9 hours. Paragraph 7 provides:

"For the purpose of satisfying himself whether there are any persons whom he may wish to question under paragraph 2 an examining officer may [carry out various searches]."

Paragraph 8 confers further powers of search upon "[a]n examining officer who questions a person under paragraph 2… for the purpose of determining whether he falls within section 40(1)(b)". Paragraph 9(1) provides:

"An examining officer may examine goods to which this paragraph applies for the purpose of determining whether they have been used in the commission, preparation or instigation of acts of terrorism."

Paragraph 10(1):

"An examining officer may authorise a person to carry out on his behalf a search or examination under any of paragraphs 7 to 9."

Paragraph 11 enables an officer to retain any item found on such a search for up to 7 days. Paragraph 18 criminalises wilful failure to comply with any obligation imposed by Schedule 7 on a person questioned under paragraph 2(1).

FACTS

7

I shall have to introduce some further details when I come to address the grounds of challenge, but the following narrative will suffice to set the scene.

8

The claimant is a Brazilian citizen and the spouse of Mr Glenn Greenwald, a journalist who at the material time was working for the Guardian newspaper. Some months after an initial contact made in late 2012 Mr Greenwald and another journalist, Laura Poitras, met Mr Edward Snowden. He provided them with encrypted data which had been stolen from the National Security Agency (NSA) of the United States. The data included UK intelligence material. Some of it formed the basis of articles in the Guardian on 6 and 7 June 2013 and on later dates. On 12 August 2013 the claimant travelled from Rio...

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