The detention of David Miranda, the partner of Guardian newspaper journalist Glenn Greenwald, has sparked widespread controversy and international press coverage (including the debate here on Just Security as to whether the First Amendment gives the press “license to behave in a manner that is functionally identical to the behavior of spies?”). On 18 August, 2013, Mr Miranda was transiting through Heathrow on his way from Germany to Brazil, on an assignment for the Guardian. He was detained and searched by officials for 8 hours and 55 minutes, pursuant to Schedule 7 (“the Schedule 7 powers”) of the Terrorism Act 2000 (“TACT”). Mr Miranda now claims that his detention was unlawful and inconsistent with the European Convention on Human Rights.
At first blush, Mr Miranda’s case is relatively straightforward. It is merely the latest in a series of cases challenging the scope of Schedule 7 powers, and it raises a familiar set of questions about whether those powers are compatible with individual rights. But because he was carrying information, which was ultimately seized, Mr Miranda’s case also raises the additional question of how free speech principles should be balanced against national security. This post will evaluate the key legal questions presented in Mr Miranda’s case, including: the breadth of Schedule 7 powers, recent case law, and the challenge of balancing national security with free speech principles.
Schedule 7 of TACT
Schedule 7 of TACT applies at ports and border control areas. It gives officers broad powers to question anyone transiting through border control areas (like Heathrow) to determine whether they appear to be a “terrorist” – which is defined under Section 40(1)(b) as a person who is or has been “concerned in the commission, preparation or instigation of acts of terrorism”. Section 1 of TACT provides that “terrorism” means the use or threat of action designed to influence a government or governmental organisation or to intimidate the public. The action or threat must be made for the purpose of advancing a political, religious, racial or ideological cause.
Remarkably, reasonable suspicion is not required. Paragraph 2(4) of TACT provides that an examining officer may exercise Schedule 7 powers “whether or not he has grounds for suspecting that a person falls within Section 40(1)(b).” Moreover, paragraph 5 of Schedule 7 provides that a person questioned under paragraph 2 must give the examining officer any information in his possession at the officer’s request. The officer may then retain whatever they seize for up to seven days.
A Code of Practice has been issued under TACT, which provides useful insight into the scope of Schedule 7 powers:
Notes for guidance on paragraphs 9 and 10
The powers to stop, question, detain and search persons under Schedule 7 do not require an examining officer to have any grounds for suspicion against any individual prior to the exercise of the powers. Therefore examining officers must take into account that many people selected for examination using Schedule 7 powers will be entirely innocent of any unlawful activity.
…
Although the exercise of Schedule 7 powers is not based on an examining officer having any suspicion against any individual, the powers should not be used arbitrarily. An examining officer’s decision to exercise their Schedule 7 powers at ports must be based on the threat posed by the various terrorist groups active in and outside the United Kingdom
….
Schedule 7 powers are to be used solely for the purpose of ascertaining if the person examined is or has been concerned in the commission, preparation or instigation of acts of terrorism. The powers must not be used to stop and question persons for any other purpose…”
Schedule 7 therefore gives border authorities broad powers to detain individuals like Mr Miranda as they pass through British ports/border control.
Stop and search without reasonable suspicion: Gillan
Although it is a striking feature of the Schedule 7 powers that they can be exercised in the absence of reasonable suspicion this is not novel in the context of British counter-terrorism laws. Until July 2012, TACT contained a controversial stop-and-search power in sections 44-47 which could also be used in the absence of reasonable suspicion.
Sections 44-47 were repealed by the Protection of Freedoms Act 2012, following the unanimous judgment of the European Court of Human Rights in Gillan v UK (2010) 50 EHRR 45. In that case, sections 44-47 were used to stop and search the Applicants as they were making their way to a protest outside a military arms fair in London in 2003. The Applicants challenged the general compatibility of the stop and search powers with the European Convention on Human Rights. On January 12, 2010, the European Court held that sections 44-47 were contrary to Article 8 of the European Convention on Human Rights.
Article 8 provides,
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The European Court held, first, that the stop and search of each of the Applicants had interfered with their right to respect for private life (§64). The Court went on to hold that the interference was not “in accordance with the law” given the width of the discretion given to individual police officers. The court also observed “in the absence of any obligation on the part of the officer to show a reasonable suspicion, it is likely to be difficult if not impossible to prove that the power was improperly exercised.” (§86) The Court therefore concluded that the stop and search power in sections 44-47 was incompatible with Article 8.
Post-Gillan and the Schedule 7 powers
In the light of the European Court’s judgment in Gillan, one might wonder how the Schedule 7 powers could survive an Article 8 challenge. One possible answer comes from a recent judgment, Beghal v Director of Public Prosecutions [2013] EWHC 2573 (Admin), dated 28 August 2013. In that case, the High Court considered the detention of Mrs Beghal at East Midlands Airport, pursuant to an exercise of the Schedule 7 powers. Amongst other arguments, Mrs Beghal argued that the Schedule 7 powers were generally incompatible with Article 8 of the European Convention and that her particular detention had been unlawful.
The Court rejected her claim. First, the Court held that the Schedule 7 powers were “in accordance with the law”. To this end, the Court distinguished Gillan on two grounds: (i) the Code of Practice, described above, requires that Schedule 7 powers be administered “professionally” (§90) and (ii) “port and border control is very different from a power to stop and search.” (§91).
The Court also emphasized that many exercises of the Schedule 7 powers are unlikely to engage Article 8 (§93); that Schedule 7 powers are applicable only to a “limited category of people…namely, travellers in confined geographical areas” (§95); and that Schedule 7 powers “may only be exercised in respect of that limited category of people for the specified purpose “of determining” whether the person questioned “appears to be a person” who “is or has been concerned in the commission, preparation or instigation of acts of terrorism” (§96). Based on these findings, the Court concluded that the Schedule 7 powers are proportionate (§§105-108).
It is not yet clear whether Mrs Beghal will appeal. In any event, the outcome of her case is likely to be of considerable interest to Mr Miranda. Mr Miranda is also likely to be interested in the outcome of Malik v UK (2013) 57 EHRR SE13, a case pending before the European Court of Human Rights and in which Mr Malik, detained in Heathrow pursuant to the Schedule 7 powers, complains that the detention violated his Article 5(1) and Article 8 rights..
Mr Miranda’s Case
Although the final outcome of Beghal and Malik will undoubtedly be relevant to Mr Miranda’s claim, Mr Miranda’s case is unique for at least three reasons.
First, Mr Miranda’s case differs factually from those of Beghal and Malik. In his claim, Mr Miranda explained that he regularly assists Mr Greenwald in his journalistic work and that he was doing so when he was stopped and detained. The Guardian newspaper had paid for his flights to and from Berlin because his trip was directly related to the work he was doing for Mr Greenwald. It seems reasonable to infer from the facts publicly available that the defendants had specific information about Mr Miranda which led to him being deliberately targeted. So the question in his case is not so much whether it was lawful for him to have been detained under the Schedule 7 powers (i.e. absent a reasonable suspicion) but rather whether Schedule 7 powers were properly exercised in the first place (i.e. whether the rationale for detaining him falls within the scope of Schedule 7). For an illustration of a case where the Schedule 7 powers were held to have been improperly used see: R (CC) v Commissioner of Police of the Metropolis [2012] 1 WLR 1913, §34.
Second, if one assumes that the defendants are able to show that they exercised the Schedule 7 powers properly: then another question arises – what are the legal constraints on their examination of materials seized from Mr Miranda? This is the question most starkly raised by Mr Miranda’s case and which exposes the threats posed by the Schedule 7 powers to freedom of expression. It has yet to be considered at a full hearing but it has been considered at an interim hearing which brings me to the final point of distinction.
And that is, third, that because the case concerns the use of information, interim relief plays a critically important part in Mr Miranda’s case. On August 22, Mr Miranda sought an injunction to prevent the defendants from examining or sharing the seized material until a full hearing on interim relief could be held. The defendants refused: a letter written by the Home Secretary’s legal representatives stated, “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.” The Police Commissioner also refused on the basis that it would prohibit the police from performing their core function, i.e. the prevention and detection of crime, and, in particular, from examining the material to see if Mr Miranda is a person falling within section 40(1)(b) of TACT.
In deciding this question of interim relief, the Divisional Court had to consider what limits to impose on the defendants’ use of the seized material. In its judgment, dated 23 August, the Court considered that the defendants should be permitted to carry out inspections on the material seized – for the purpose of considering whether Mr Miranda falls within section 40(1)(b) of TACT and, more generally, for the purpose of protecting national security. Scant justification was given regarding the basis for the latter purpose: “The court also considered inspection and disclosure for the purpose of protecting national security….should be permitted in the limited period until 30 August, notwithstanding the high importance of protecting journalistic sources.” (§34)
This is troubling. It raises the spectre of the executive being able to seize information, pursuant to broad Schedule 7 powers, and then being permitted to examine it, in the name of national security – the justification for exercises of executive power to which judges give greatest deference. As the Grand Chamber of the European Court of Human Rights has held, “The right of journalists to protect their sources is part of the freedom to “receive and impart information and ideas without interference by public authorities” protected by art.10 of the Convention and serves as one of its important safeguards. It is a cornerstone of freedom of the press, without which sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information to the public may be adversely affected.” (Sanoma Uitgevers BV v The Netherlands, 14 September 2010).
So, this is the difficulty with Mr Miranda’s case: in this context, how are judges to strike a balance between freedom of expression (and the protection of journalistic sources) and national security?