R (David Miranda) v (1) Secretary of State for the Home Department and Another (1) Liberty (2) Article 19, English Pen and the Media Legal Defence Initiative)
| Jurisdiction | England & Wales |
| Judge | Master Of The Rolls,Lord Justice Richards,Lord Justice Floyd |
| Judgment Date | 19 January 2016 |
| Neutral Citation | [2016] EWCA Civ 6 |
| Docket Number | Case No: C1/2014/0607 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 January 2016 |
[2016] EWCA Civ 6
The Master Of The Rolls
Lord Justice Richards
and
Lord Justice Floyd
Case No: C1/2014/0607
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEENS BENCH DIVISION
DIVISIONAL COURT
CO117322013
Royal Courts of Justice
Strand, London, WC2A 2LL
Matthew Ryder QC, Daniel SquiresandEdward Craven (instructed by Bindmans LLP) for the Appellant
Steven Kovats QC and Julian Blake (instructed by the Government Legal Department) for the FirstRespondent
Jason Beer QC, Ben BrandonandBen Watson (instructed by the Directorate of Legal Services, Metropolitan Police) for the SecondRespondent
Alex Bailin QC and Ben Silverstone for the First Intervener (intervening by written submissions only)
Can Yeginsu and Anthony Jones for the Second Intervener (intervening by written submissions only)
Hearing dates : 08 & 09/12/2015
INTRODUCTION
I cannot improve on the introduction to the judgment of Laws LJ (with which Ouseley and Openshaw JJ agreed). He said:
"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 para 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 Mr Miranda 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 para 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 ("the Convention").
THE TERRORISM ACT 2000 ("TACT")
Section 1 provides:
"(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."
Section 40 provides:
"(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."
Schedule 5 is material to the issue of proportionality and the fourth ground of appeal. It is not necessary to set it out here. I have set out the material parts of it at para 85 below.
Schedule 7 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.
6
(1) For the purposes of exercising a power under paragraph 2 or 3 an examining officer may-
(a) stop a person or vehicle;
(b) detain a person.
…….
(4) A person detained under this paragraph shall …..be released not later than the end of the period of nine hours beginning when his examination begins"
THE FACTS
The following account of the facts is derived to a considerable extent from the judgment of Laws LJ. Mr Miranda 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, Mr Miranda travelled from Rio de Janeiro to Berlin in order to meet Laura Poitras. He was carrying encrypted material derived from the data obtained by Mr Snowden. He was to collect computer drives containing further such material. He was doing it in order to assist in the journalistic activity of Mr Greenwald. He was stopped at 08.05 on Sunday 18 August 2013 at Heathrow where he was in transit on his way back to Rio de Janeiro.
The Security Service (for which the first defendant Secretary of State is responsible by statute) had undertaken an operation relating to Mr Snowden. They became aware of Mr Miranda's movements. At 08.30 on Thursday 15 August 2013 they briefed Detective Superintendent Stokley of SO 15, the Counter-Terrorism Command in the Metropolitan Police ("MPS"), the second defendant.
The Security Service told him that one of the individuals involved in disseminating the stolen intelligence material was Mr Greenwald, a freelance journalist for the Guardian, that Mr Miranda was married to him and was travelling from Berlin to Rio and may have some sensitive material in his possession. As Det Supt Stokley put it at para 10 of his first witness statement dated 23 September 2013, the Security Service wanted to explore "the various options around seizure and analysis of this material and what police colleagues could do to assist with that process."
Det Supt Stokley wanted to initiate further inquiries to see whether Mr Miranda or others had committed any criminal offences (including terrorist offences). He had a meeting with the Ports Team SO 15 officers who were responsible for Schedule 7 stops. They agreed that the best way to achieve the objectives of both the Security Service and SO 15 would be to conduct a port stop in this case. Det Supt Stokley then addressed his mind as to how SO 15 "could articulate the justification for the Schedule 7 stop in a way that was consistent with but also independent of the overall joint operational objectives of the operation which had been set by the Security Service" (para 20 of his first witness statement). It was decided that two levels of authorisation were required. The first was a request from the Security Service asking SO 15 to consider using police powers under Schedule 7 to conduct a port stop. The second concerned the tactical aspects of the proposed stop which had to be agreed between the examining officers and the Security Service.
The first stage of the authorisation process was contained in the Security Service's National Security Justification ("the NSJ"), a document emanating from the Security Service. The second stage was reflected in a Port Circulation Sheet ("PCS") which was completed by the Security Service following dialogue between the Security Service and the Ports Officers. A PCS is a form of document used by inter alia the Security Service to provide information to counter-terrorism police officers. Det Supt Stokley said that it was only when both stages in the authorisation process had been completed and the documents received that a port stop could take place. He saw his focus as being to seek to determine whether Mr Miranda appeared to be a person who was or had been concerned in the commission, preparation or instigation of acts of terrorism (para 24 of his first statement). The acts of terrorism that he had in mind when considering the justification for a Schedule 7 stop "were acts which endangered life, created a serious risk to the safety of the public or were designed to seriously disrupt an electronic system" (para 26).
Some time on Friday 16 August 2013, Det Supt Stokley received the NSJ that his commanding officer had requested from the Security Service. The redacted text included the following:
"2… We strongly assess that MIRANDA is carrying items which will assist in GREENWALD releasing more of the NSA and GCHQ material we...
To continue reading
Request your trial
-
R. v. Vice Media Canada Inc., 2018 SCC 53
...SCC 41, [2010] 2 S.C.R. 592; Nagla v. Latvia, No. 73469/10, July 16, 2013; R. (Miranda) v. Secretary of State for the Home Department, [2016] EWCA Civ 6, [2016] 1 W.L.R. 1505; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Canadian Broadcasting Corp. v. Manitoba (Attorney General), 2009 MBCA ......
-
Salman Butt v Secretary of State for the Home Department
...in the Terrorism Act 2000, Mr Bowen submitted that that definition should be construed strictly, following R (Miranda) v SSHD [2016] EWCA Civ 6, [2016] 1 WLR 1505, at [55]. In my judgment, Miranda has nothing to do with this issue; it was concerned with the effect which what the Court of Ap......
-
The Queen (on the Application of National Council for Civil Liberties (Liberty)) v Secretary of State for the Home Department
...16 July 2013). He also relies on the decision of the Court of Appeal in R (Miranda) v Secretary of State for the Home Department [2016] EWCA Civ 6; [2016] 1 WLR 1505. (2) This independent decision must take place before interception occurs or (if it occurs urgently) before any use is made ......
-
Good Law Project Ltd v The Secretary of State for Health and Social Care
...who have material knowledge and expertise, it is not to be lightly overridden: R (Miranda) v Secretary of State for the Home Department [2016] EWCA Civ 6 per Lord Dyson MR at [79]; R (Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605 per Lord Burnett of Maldon CJ,......
-
Couldn’t Tell You Even If I Wanted To? Anonymity of Journalists’ Sources, Voluntary Disclosure and Abuse of Process
...22 EHRR 123.16. Ibid. at 39.17. Ibid. at 2.18. [2008] EMLR 14.19. Financial Times Ltd and Others vthe United Kingdom [2010] EMLR 21.20. [2016] EWCA Civ 6.21. [2015] UKIP Trib 14 176-H.22. [2016] EWCA Civ 6 at [98–119].23. Ibid. at 100.24. Ibid. at 102.Freer But the present case is not about......
-
Civil Liberties and the Korean War
...judicial scrutiny than in the 1950s,the Korean war period being the nadir of judicial review in the post-war era. See R(Miranda)vSSHD [2016] EWCA Civ 6, [2016] 1 WLR 1505.146 We are thinking here of recent examples, some referred to below, in the context of the war inIraq.420 C2018 The Aut......
-
The significance of the Joint Declarations on freedom of expression
...(ECtHR, 19 September 2017) (admissibility decision) paras 56, 75 – 76.68. David Miranda v Secretary of State for the Home Department [2016] EWCA Civ 6.69. At the ECtHR: written comments of the Open Society Justice Initiative, The Financial Times Ltd and Access InfoEurope in T´arsas´ag a Sza......