(on the application of The Plantagenet Alliance Ltd) v Secretary of State for Justice (First Defendant) The University of Leicester (Second Defendant) The Members for the Time Being of the Chapter, the council and the College of Canons of the Cathedral of Saint Martin Leicester (First Interested Party) The Members for the Time Being of the Chapter, the Council and the College of Canons of the Cathedral and Metropolitan Church of Saint Peter York (Second Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Haddon-Cave |
| Judgment Date | 18 October 2013 |
| Neutral Citation | [2013] EWHC 2609 (Admin),[2013] EWHC 3164 (Admin) |
| Docket Number | Case No: CO/11732/2013,Case No: 5313/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 October 2013 |
[2013] EWHC 2609 (Admin)
Lord Justice Beatson
Mr Justice Kenneth Parker
Case No: CO/11732/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Matthew Ryder QC, Edward Craven and Raj Desai (instructed by Bindmans LLP) for the Claimant
Steven Kovats QC and Julian Blake (instructed by The Treasury Solicitor) for the First Defendant
Jonathan Laidlaw QC and Ben Brandon (instructed by The Treasury Solicitor) for the Second Defendant
This is the judgment of the Court to which we have both contributed. We give the reasons for our decisions at the conclusion of the hearing yesterday, Thursday 22 August 2013. This case concerns the exercise of the extensive powers under Schedule 7 to the Terrorism Act 2000 and the detention of material in the possession of a person assisting a journalist and possibly identifying journalistic sources. The protection of journalistic sources has been stated to be of vital importance to press freedom, both in our domestic law and in the Strasbourg court: see, for example, Section 10 of the Contempt of Court Act 1981 and the decisions of this court in R (Malik) v Manchester Crown Court [2008] EWHC 1362 (Admin), per Dyson LJ as he then was, and of the Grand Chamber of the European Court of Human Rights in Sanoma Uitgevers BV v The Netherlands 14 September 2010. The sole questions for the court yesterday concerned interim relief, and the timetable for the future conduct of these proceedings. Before setting out the different positions of the parties as to the position pending the hearing, and their justifications for their positions on this, we summarise the facts.
In proceedings served late on Wednesday 21 August 2013, the claimant, David Miranda, applied for urgent consideration of his application for permission to apply for judicial review and the grant of interim relief in respect of his examination and detention on 18 August 2013 by Metropolitan Police officers exercising powers under Schedule 7 to the Terrorism Act 2000 while in the international transit area of Heathrow Airport. The defendants are the Secretary of State for the Home Department and the Commissioner of Police of the Metropolis. The incident has been extensively covered in national and international media.
Mr Miranda was detained for a period of almost nine hours between 8.05 and 17.00 while was travelling from Berlin to Rio de Janeiro via Heathrow Airport. During that time he was questioned and his laptop, telephone, memory sticks, portable hard drive and other items were taken by the officers and retained. The interim relief sought by the claimant is designed to stop the defendants examining the material detained or informing third parties of its contents.
Mr Miranda is a Brazilian citizen. He is the partner of Mr Greenwald, an American journalist who has written a series of stories for the Guardian and the New York Times relating to mass surveillance programmes by the agencies of the United States and the United Kingdom governments. A significant part of the underlying information for the stories in the Guardian has been provided by Mr Edward Snowden, a US citizen. The claimant's summary statement of facts and grounds states that Mr Miranda regularly assists Mr Greenwald in his journalistic work and was doing so at the time he was stopped and detained by the police officers. The summary statement of facts and grounds also states that the Guardian had paid for his flights to and from Berlin because his travel was directly connected to the assistance he was providing to Mr Greenwald, and that, while in Berlin, the claimant visited a documentary film maker, Ms Pritras, who had been working with Mr Greenwald.
The defendants have stated they will vigorously defend these proceedings. Not surprisingly, they were not able to serve any evidence in the hours between the issue of proceedings on Wednesday afternoon and the hearing yesterday. Their position is contained in letters dated 21 August to the claimant's solicitors from Ms Rashid, a senior lawyer in the Treasury Solicitor's Department and Mr Fairbrother, a solicitor in the Metropolitan Police's Directorate of Legal Services. The claimant's applications are supported by the statements of Ms Morgan, a solicitor at Bindmans LLP and Mr Rusbridger, the editor of the Guardian and the editor in chief of Guardian News and Media, both dated 21 August 2013.
The parties have been unable to agree as to suitable undertakings by the defendants to deal with the position pending the full hearing. The claimant sought the following undertakings. First, that there would be no inspection, copying, disclosure, transfer, distribution or interference in any way with data seized from Mr Miranda. Secondly, that the product of any inspection that has already taken place will not be disclosed, shared or used further in any way and will be kept secure. Thirdly, that the defendants would take all necessary steps within their power to obtain undertakings that any third parties who had been granted possession or access to such data would not disclose, transfer, distribute or otherwise interfere in any way with the data pending the final determination of these proceedings.
The Secretary of State and the Commissioner declined to give those undertakings. Paragraph 11 of the letter from the Treasury Solicitor's Department states that "based on information originally known to the Secretary of State it is necessary to continue to examine [the] data without delay because there are grounds to believe that it contains material, including tens of thousands of highly classified UK intelligence documents, the authorised disclosure of which would threaten national security, including putting lives at risk" (emphasis added).
In the written submissions of Mr Laidlaw QC and Mr Brandon on behalf of the Commissioner dated 21 August, it is stated that "the effect of an order granted in the terms sought by the claimant would be to prohibit the second defendant from performing its core, statutory function: the prevention and detection of crime. In particular, it would prohibit the second defendant from continuing to examine the material seized so as to determine whether the claimant is a person falling within Section 40(1)(b) of the [Terrorism Act] 2000; and to establish whether any material obtained from that examination may be needed for use as evidence in any future criminal proceedings". The submissions also state that the balance of justice weighs decisively against the grant of interim measures in the terms sought because of the limited seven day period the police have to examine the "things seized" under the relevant statutory provision. Since that period would expire at midnight on Saturday 24 August, the effect of the grant of interim relief in the terms of the undertaking would be final.
The defendants, however, offered to undertake not to inspect, copy, disclose, transfer, distribute (whether domestically or to any foreign government or agency), or interfere with the data held by Mr Miranda and detained save (1) for the purposes of a criminal investigation and use as evidence in criminal proceedings, and (2) for the purposes of protecting national security, including by preventing or avoiding the endangering of the life of any person or the diminution of a counter-terrorism capability of Her Majesty's Government. The defendants resist any interim relief pending the hearing beyond this.
During the course of the hearing it was agreed that the defendants would serve the evidence upon which they will rely to resist an order of interim relief by close of play on Tuesday 27 August and that interim relief should be considered on Friday 30 August. The question for the court yesterday on interim relief therefore changed, and concerned only the position pending the hearing on 30 th August. As to the timetable, one was agreed, although, in the event that the Secretary of State gives notice that she wishes to apply for a closed hearing pursuant to CPR Part 82 and succeeds in that application, it will have to be revisited.
Before turning to the question of interim relief, we shall summarise the legal framework and the nature of the claimant's challenge to the action taken while he was in transit at Heathrow airport.
Schedule 7 of the Terrorism Act concerns port and border controls. It gives officers broad powers including the power to question specified persons to determine whether they appear to be a terrorist as defined by Section 40(1)(b) of the Act. Section 40(1)(b) provides that "terrorists" means a person who "is or has been concerned in the commission, preparation or instigation of acts of terrorism".
Section 1 of the Act provides that terrorism means the use or threat of action where the use or threat is designed to influence a government or governmental organisation or to intimidate the public or a section of the public. The action or threat must be made for the purpose of advancing a political, religious, racial or ideological cause.
Paragraph 2(2) of Schedule 7 provides that an examining officer may question a person if:
"(a) he is at a port or in the border area, and
(b) the examining officer believes that the person presence at the port or in the area is connected with his entering or leaving Great Britain or Northern Ireland or is travelling by air within Great Britain or within Northern Ireland."
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