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Freedom of Speech in a time of Terrorism

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About The Author

Amy Ling (Former Private Law Manager)

Amy graduated with a first in Philosophy from The University of Manchester in 2012. Following three years working within the social housing sector, Amy is currently studying for her LPC and will begin a training contract at a city firm in September 2016. Amy is an accomplished mooter, and was on the winning team in the 2015 JustCite International Mooting competition. Outside of the law, Amy is a keen runner.

Image © Agência Brasil

[W]e must be very clear about one thing, which is we should never give up the values that we believe in and defend as part of our democracy and civilisation and believing in a free press, in freedom of expression, in the right of people to write and say what they believe.

David Cameron, The Telegraph, Jan 2015

I want the British people to know they have a government that understands the importance of our national security and that we will take whatever actions are necessary to keep our country safe.

David Cameron, The Telegraph, Nov 2015

As the above quotes demonstrate, when it comes to national security the relationship between the importance of freedom of expression and that of public safety is complex and fraught. This is particularly so when it comes to journalistic freedom to investigate the activities of the state, and even more so when the context of such investigations is a time of heightened fear of terrorist attack following recent events across Europe.

One such case to explore this issue was  David Miranda v Secretary of State for the Home Department [2016] EWCA Civ 6. This article will examine the background to the case, the issue of compatibility and the possible consequences from the ruling.

The Schedule 7 Detention

On the 18th of August 2014, David Miranda was detained by police whilst travelling through Heathrow airport on his way to Rio de Janeiro. He was held for nine hours, his belongings searched and items in his possession – which included 58,000 classified intelligence documents - were confiscated.

The reason Miranda was identified for a search is due to his association with Glenn Greenwald, a journalist who at the time was working with the Guardian newspaper on their coverage of the explosive Edward Snowden information leaks. The Snowden leaks had been highly damaging to the political establishment and had exposed practices employed by the security services in intercepting communications.  The information being carried by Miranda was on behalf of Greenwald to assist in this work, with the documents used to justify the stop make clear reference to Snowden.

The powers used to detain and search Miranda are provided by Schedule 7 of the Terrorism Act 2000. Paragraph 2(1) of Schedule 7 states:

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).

A person falling under section 40(1)(b) is someone who is or has been ‘concerned in the commission, preparation or instigation of acts of terrorism’, with terrorism itself defined at section 1 as:

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.

It is estimated that 60,000 people a year are stopped and searched using this power.

In preparation of the stop the National Security Justification issued by the security services for action by the airport staff stated (as quoted from the judgment) ‘[…] there is a substantial risk that David MIRANDA holds material which would be severely damaging to UK national security interests’. The Port Circulation Sheet (PCS) issued to airport staff also stated:

MIRANDA is knowingly carrying material, the release of which would endanger people’s lives… designed to influence a government, and is made for the purpose of promoting a political or ideological cause.

It was on this basis that the actions were taken at Heathrow airport, to which Miranda responded with the launch of a judicial review.

Judicial Review: The Finding of Incompatibility

Shortly after the incident, Miranda issued judicial review proceedings on the grounds that:

  1. The Schedule 7 power exercised in detaining him was for a purpose not permitted by statute; 
  2. The use was a disproportionate interference with his Article 5 (right to liberty and security), 8 (right to respect for private and family life) and 10 (freedom of expression) rights under the European Convention on Human Rights (ECHR); and
  3. The power in Schedule 7 was incompatible with Miranda’s article 10 rights.

The divisional court found against Miranda on all grounds, with the leading judgment given by Laws LJ. The case was then appealed to the Court of Appeal on similar grounds namely ‘purpose’, the ‘proportionality’ and the ‘compatibility’.

The purpose and proportionality grounds were found to fail. Firstly, Lord Dyson (giving the leading judgment) concluded that the ‘true and dominant purpose’ of the stop was to give effect to the PCS, and that this purpose was proper, as agencies such as the police and judiciary are entitled to rely on intelligence from the security services. Secondly, they found that the action was proportionate: again, the security services assessment of risk to national security should be trusted, and that even if a risk was low this should be weighed against the potential harm to the public, which was deemed to be such that the detention and search was not a disproportionate interference with Miranda’s rights.

However, an examination of the structure of the Schedule 7 powers led the court to conclude that there was a compatibility issue with Article 10.

Article 10 of the ECHR provides that:

  1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
  2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

As it is subject to ‘formalities, conditions, restrictions or penalties’, unlike rights such as Article 3 (prohibition of torture), freedom of expression is qualified and may be limited where it falls under one of the reasons listed, such as in the interests of national security. It should also be noted that English law places particular weight on the importance of freedom of expression, as per section 12 of the Human Rights Act 1998.

Miranda’s argument was that the Schedule 7 powers could not be considered “prescribed by law” because they were not subject to sufficient safeguards to protect journalistic sources and materials, such as independent scrutiny over exercise of the power. In particular:

  • there was no requirement that an officer undertaking a Schedule 7 search should take into account the right to freedom of expression of the risk that examination, seizure or retention of information could intrude upon confidential journalistic material or disclose the identity of a confidential source; and
  • there was no provision for authorisation by a court or other independent and impartial decision making body in cases where journalistic material is involved.

Additionally, the campaign group Liberty, who acted as an intervener, highlighted the importance of such reviews occurring before the confiscation of the material, as the right to confidentiality will have been undermined if the material has already been revealed to the authorities.  

In considering this point, the court looked to the 2015 case of Beghal v DPP, in which it was said by Lord Hughes:

The requirement of legality… calls for the law to contain sufficient safeguards to avoid the risk that power will be arbitrarily exercised and thus that unjustified interference with a fundamental right will occur.

The safeguards that were in place at the time of Miranda’s detention were the right of judicial review that it is possible for anyone detained to raise – as Miranda did in this case. However, the court did not find that this was adequate: there were no safeguards in place to prevent the disclosure of journalistic material – and potentially the identities of the sources of that material prior to the search, so that any action open to that journalist is only available after the damage has been done.  As crucially highlighted at para 113 of the judgment:

The central concern 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. If journalists and their sources can have no expectation of confidentiality, they may decide against providing information on sensitive matters of public interest. [Emphasis added]

The court also drew a comparison with the provisions of the Police and Evidence Act 1984 (PACE), which does afford journalistic material additional protections by classifying it under the categories of excluded material (section 11) and special procedure material (section 14).

The conclusion was that the provisions in Schedule 7 are not compatible with the rights in Article 10. Lord Dyson suggested that this could be resolved with the introduction of adequate safeguards such as ‘some form of judicial or other independent and impartial scrutiny conducted in such a way as to protect the confidentiality in the material’.

An Important Reminder

It is important to note that a declaration of incompatibility made in accordance with section 4 of the Human Rights Act 1998 does not affect the validity, continuing operation or enforcement of the law to which it relates, but simply puts the matter before parliament to consider for change.

In March 2015 the government had updated Code of Practice for Examining Officers and Review Officer under Schedule 7 to the Terrorism Act 2000, which the Home Office claims ‘goes over and above the court’s recommendations’ and therefore makes the powers now compatible. Clause 40 of the Code states: ‘officers should cease reviewing, and not copy, information which they have reasonable grounds for believing is subject to legal privilege, is excluded material or special procedure material’. In this way, the provisions have been brought in line with PACE, though it is not clear that the provisions as recommended by Lord Dyson have been enacted.

Nonetheless, and despite losing on all other grounds, the judgment was welcomed by those involved, such as Kate Goold of Bindmans, who represented Miranda:

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 needs to come in line with other legislation to ensure that the seizure of journalistic material is protected by judicial safeguards.

Further, David Banisar (legal counsel for Article 19, one of the other interveners in the appeal) argues:

With the investigatory powers bill now going through the parliamentary scrutiny process on a rushed timetable, this judgment serves as an argument for even greater scrutiny and a thorough review of powers which could have dramatic implications for freedom of expression in the UK

It is this implication that appears to be the most significant. In a world in which the pressure for citizens to give up more of their rights to privacy and freedom of expression, we must not forget that those who work in the public interest are not just those in the government, police and security services but also those journalists who work tirelessly to hold these agencies to account.  As argued by Rosie Brighouse of Liberty, the Miranda judgment serves as:

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 fact of arbitrary abuse of power by the state

Whilst it is therefore laudable that David Cameron has committed to ‘whatever actions are necessary’ to combat terrorism, any arbitrary abuse of power is already a concession against the liberal values such actions claim to protect.

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Tagged: Anti-Terror, Human Rights, Media

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