The High Court’s Judgment Affirming the Legality of Mr. Miranda’s Detention

David Miranda -v- Secretary of State for the Home Department and Others, CO/111732/2013, [2014] EWHR 255 (High Ct. of Justice Divisional Ct. Feb. 19, 2014)

A hearing was held on November 6 and 7, 2013, and, on February 19, 2014, the High Court, in an opinion by Lord Justice Laws, which Mr. Justices Ouseley and Openshaw joined, granted permission to seek judicial review on the ground that Mr. Miranda had raised issues of “substantial importance.” Para. 15. The Court ruled, however, that the detention of David Miranda under Schedule 7 of the Terrorism Act 2000 (“Schedule 7”) was lawful.

In his opinion, Lord Justice Laws first held that Mr. Miranda had been properly stopped, as required by Schedule 7, for the purpose of determining whether he “appeared to be a person falling within [the definition of a terrorist in] section 40(1)(b).” Para. 21. In reaching this holding, the judge stressed that “the Schedule 7 purpose is not to determine whether the subject is, but only whether he ‘appears to be’ a terrorist.” Para. 30. At the same time, however, Lord Justice Laws recognized that, “The purpose of the stop [of Mr. Miranda] may be simply expressed. It was to ascertain the nature of the material which the claimant was carrying and if on examination it proved to be as was feared, to neutralise the effects of its release (or further release) or dissemination.” Para. 27. In an attempt to fit the purpose of examining and preventing the dissemination of the material Mr. Miranda was carrying within Schedule 7’s mandated, limited purpose of determining whether he appeared to be a terrorist, the judge reasoned that Schedule 7 “provides [for] no particular consequence” when a stopped person is determined to possibly be a terrorist. Consequently, one permissible outcome is the retention of materials in the subject’s possession … if the general law allows it.” Para. 32.

Lord Justice Laws went on to reject Mr. Miranda’s alternative contention that even if his detention was authorized by schedule 7, “the Schedule 7 stop was a disproportionate interference with his … right to ‘the protection of journalistic expression.” Here, the judge agreed with Mr. Miranda’s counsel that English common law, rather than the jurisprudence of the European Court of Human Rights, would suffice to resolve the issue.

In further agreement with Mr. Miranda’s counsel, Lord Justice Laws held that the protections of journalistic expression applied to Mr. Miranda, even though he was not himself a journalist. The judge turned this seeming concession against the claimant, however, by reasoning that while the right to freedom of expression “belongs to every individual for his own sake,” journalistic expression is protected to enable the citizenry to engage in informed political debate. Para. 46. Consequently, in determining whether Mr. Miranda’s detention disproportionately interfered with his freedom, the balance to be struck was not between his private right and the public interest, but between “two aspects of the public interest”: national security versus the public’s interest as readers or audience. Id.

In finding that the balance favored the government, Lord Justice Laws fully credited its evidence about the grave threat to life and national security that exposure of the materials Mr. Miranda was carrying posed. By contrast, the interference with journalistic freedom was limited because Mr. Miranda was not a journalist himself, but only an assistant to Glenn Greenwald. In addition, the “58,000 highly classified UK intelligence documents stolen from GCHQ” that Mr. Miranda carried “was not ‘journalistic material,’ or if it was, only in the weakest sense.” Paras. 64, 72 and 73. Further finding in favor of the government, the judge rejected the claimant’s position that in a democracy, journalists and the government share responsibility for determining when publication should be withheld for the sake of national security. “Journalists have no such constitutional responsibility. The constitutional responsibility for the protection of national security lies with elected government.” Para. 71.

In ruling that Mr. Miranda’s detention was lawful, Lord Justice Laws also dismissed his contention that Schedule 7 contravenes the requirement of Article 10(2) of the European Convention on Human Rights that any restriction on freedom of expression be “prescribed by law.” Following the reasoning in Beghal v DPP, [2014] 2 WLR 150, [2013] EWHC 2573,the judge found that the Schedule 7 powers are not overbroad and arbitrary because they can be exercised only for port and border control, on people who travel through border and port areas, and “subject to cumulative statutory limitations.” Para. 81. Contentiously, the judge went on to suggest that the European Court of Human Rights had wrongly invalidated the stop and search powers in the 2000 Act in Gillan and Quinton v. UK (2010), 50 EHRR 45. In reasoning that “[i]n matters affecting fundamental rights it would be contrary to the rule of law … for a legal discretion granted to the executive to be expressed in terms of an unfettered power,” the Gillan Court failed to understand that “in English law the executive never enjoys unfettered power. All State power has legal limits, for it is conferred on trust to be exercised reasonably, in good faith, and for the purpose for which it is given by statute ….” Para. 83. Strongly suggesting that the unique features of the English legal system obviate the need for explicit constraints on executive power to be set forth in legislation, the judge announced that, “It is not a general, certainly not an absolute, requirement of the law of human rights in England that the Act of Parliament must spell out the constraints upon the power which it confers.” Id.

Further, Lord Justice Laws dismissed the claimant’s contention that by not requiring prior judicial scrutiny of restrictions on journalistic expression, Schedule 7 violates Article 10(2)’s requirement that restrictions on freedom of expression be prescribed by law. In addition to asserting that the European Court of Human Rights had not made prior judicial scrutiny an absolute prerequisite for government interferences with journalistic freedom, the judge again evinced a commitment to the autonomy of UK law. “[T]he Strasbourg court would itself acknowledge that the protections against excess of power by State agents, and the limitations which the law imposes on the power they enjoy, vary greatly from State to State …” Para. 88.

Lord Justice Laws concluded that in addition to showing that the right to freedom of expression under Article 10 of the European Convention on Human Rights is not contravened, the limits that Beghal found on the Schedule 7 power imply that there is no violation of either Article 5’s right to liberty and security or Article 8’s right to respect for private and family life.

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