Edward Snowden released classified information to the media in 2013. Among the global media outlets chosen was the British Guardian. One of those Guardian journalists involved in breaking the sorry, and in releasing up to thousands of classified security documents, was Glenn Greewald.
Later in 2013, his partner, Brazilian David Miranda, was stopped whilst entering the UK at Heathrow Airport. He was detained, and had his baggage and laptop searched. At the time, he was carrying material related to the Snowden revelations on an external hard drive, and in his laptop. Since then, Mr Miranda and civil liberties campaigners have seen this as a gross breach of human rights, and journalistic integrity. The case has preceded though the various British courts, with a three judge panel in the Court of Appeal finally finding in Mr Miranda favour early in January 2016.
Master of the Rolls Lord Dyson gave the verdict, along with Lord Justice Richard and Lord Justice Floyd. According to the three judges, essentially a key part of the Terrorism Act (2000), under which Mr Miranda was detained and searched, is incompatible with European human rights laws.
Mr Miranda was detained under Schedule 7 of the Act. Under the powers of Schedule 7, travellers can be questioned to ascertain whether they might be terrorists, or otherwise involved in terrorism. Whilst being detained, they have no right to legal advice, or to remain silent, and can he held for questioning for up to six hours.
Special Branch, and relevant authorities have had such powers since 2000. Since then, the number of stops has risen dramatically, to a peak of 85,000 in 2009/10. Whilst the Schedule 7 powers are predominantly unknown to the travelling public, there have long been concerns about the powers, and challenges raised to Schedule 7 stops. Further, there have been fears (justified or not) of officers profiling Muslims or other ethnic backgrounds, and gathering intelligence and information on such minorities with the searches.
Under Schedule 7, counter terror officers did not have to have any grounds to suspect the individual they were stopping, beyond the traditional “reasonable concern” that that is usual in legal matters. The definition of terrorism was also left slightly open to interpretation in Schedule 7. According to the Court of Appeal m, that definition can now be broadly defined as having some intent to cause a serious and significant threat to public safety, for example by deliberately endangering life.
The Court of Appeal admitted that the stop itself was perfectly legal, and in line with the relevant provisions of the Terrorism Act. However, Mr Miranda is a journalist. He had been stopped whilst in transit between Rio de Janeiro and Berlin after meeting the film maker Laira Poitras, who was another person involved in releasing the Snowden revelations. At that time, Mr Miranda had been carrying an estimated 60,000 classified UK government documents. He was due to hand these over to Mr Greenwald as part of the international media efforts regarding publishing Snowden’s information. The Guardian itself had paid for and arranged the trip and travel plans.
In this case, Lord Dyson found that the “exercise of the Schedule 7 stop power in relation to Mr Miranda on 18 August 2013 was lawful…But the stop power conferred by paragraph 2(1) of Schedule 7 is incompatible with Article 10 of the Convention in relation to journalistic material in that it was not subject to adequate safeguards against its arbitrary exercise.” The judges were referring to Article 10 of the European Convention on Human Rights (ECHR), which refers to Freedom Of Expression, and the right to receive and impart information and ideas.
Whilst legal, according to Lord Dyson, the stop procedures used by anti-terror police at ports and airports are not subject to safeguards and public scrutiny. With a lack of proper legal safeguards, the Schedule 7 powers are therefore considered as incompatible with human rights legislation.
The Court of Appeal was left with the unusual step of issuing a certificate of incompatibility in this matter. The certificate is an option judges have when they believe that the law is incompatible with the UK’s treaties and obligations regarding human rights.
In issuing the certificate, Lord Dyson and the judges stated that their “central concern is that disclosure of journalistic material [whether or not it involves the identification of a journalist’s sources] 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 cannot be certain of their confidentiality then the very nature of a free and independent press – so vital in a democracy- is threatened.
The Home Office continues to state that the Schedule 7 stop was perfectly legal – which indeed it was. Civil rights campaigners hailed the verdict as a victory for civil liberties, and journalistic freedom- which it is also.
As the government presses for even more data information, and surveillance powers, the Court of Appeal verdict once again brings the mind the very pressing need for balance, Balance between freedom of expression, civil liberties, media freedom, and national security.
Above all, the case is a triumph for the law. The Court of Appeal upheld the fact that the stops themselves are perfectly legal- but merely carried out in a questionable manner. Such subtleties define the English legal system, as does a desire to uphold the law of the land, whatever it may be.