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Terrorism Act incompatible with human rights, court rules in David Miranda case

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Appeal court says detention of Miranda was lawful but clause under which he was held is incompatible with European human rights convention

A key clause in the Terrorism Act 2000 is incompatible with the European convention on human rights, the master of the rolls, John Dyson, has said as part of a court of appeal judgment.

The decision came in the case of David Miranda, who was detained at Heathrow airport in 2013 for carrying files related to information obtained by the US whistleblower Edward Snowden.

The court of appeal’s judgment on Tuesday will force government ministers to re-examine the act.

Lord Dyson, who made the ruling with Lord Justice Richards and Lord Justice Floyd, said the powers contained in schedule 7 of the Terrorism Act 2000 were flawed. It allows travellers to be questioned to find out whether they appear to be terrorists. They have no right to remain silent or receive legal advice and they may be detained for up to six hours.

“The stop power, if used in respect of journalistic information or material, is incompatible with article 10 [freedom of expression] of the [European convention on human rights] because it is not ‘prescribed by law’,” said Dyson, the most senior civil judge in England and Wales.

The judgment continued: “If journalists and their sources can have no expectation of confidentiality, they may decide against providing information on sensitive matters of public interest.”

The ruling rejects the broad definition of terrorism advanced by government lawyers. The correct legal definition of terrorism, the court of appeal has now determined, requires some intent to cause a serious threat to public safety such as endangering life.The judges concluded, however, that the police decision to detain Miranda, the partner of the former Guardian journalist Glenn Greenwald, at Heathrow was lawful.

In response to the ruling, the Home Office said: “We have always been clear that David Miranda’s examination by police under schedule 7 was lawful and proportionate. The court of appeal’s judgment in this case supports the action taken by police to protect national security.

“We also note the court’s decision that schedule 7, as in force at the time of this incident, did not provide sufficient protection against the examination of journalistic material.”

Kate Goold, of the law firm Bindmans who represented Miranda, said: “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.”

Greenwald welcomed the judgment on Twitter:

In the judgment, Dyson said the police’s power to stop people at ports and airports was not subject to “sufficient legal safeguards to avoid the risk that it will be exercised arbitrarily. The court therefore grants a certificate of incompatibility”.

He said: “It will be a matter for parliament to decide how to provide such a safeguard. The most obvious safeguard would be some form of judicial or other independent and impartial scrutiny in such a way as to protect the confidentiality in the material.”

Issuing a certificate of incompatibility is highly unusual, but an option for judges when they conclude that UK law is inconsistent with the country’s international human rights obligations.

The judgment in effect says the police acted within the existing law, but the law itself needs to be altered.

“The exercise of the schedule 7 stop power in relation to Mr Miranda on 18 August 2013 was lawful,” the judges concluded. “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 judgment said: “The 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 [freedom of expression] rights.”

The challenge brought by Miranda questioned the legality of his nine-hour detention under counter-terrorism powers.

The hearing at the court of appeal in London in December followed an earlier decision by a lower court that holding him was lawful.

About 60,000 people a year are held in such controversial port stops. The Home Office has argued that border controls exist to check on travellers when there is insufficient information to justify an arrest.

David Miranda, left, and his partner, the former Guardian journalist Glenn Greenwald. Photograph: Janine Gibson/The Guardian

The Liberal Democrat home affairs spokesman, Alistair Carmichael MP, said: “The Terrorism Act should be used in dealing with terrorists, not for journalists or whistleblowers. The ruling recognises the important role journalists play in holding government to account and shining a light on a range of issues.”

The human rights group Liberty welcomed what it described as a “landmark judgment”. Rosie Brighouse, its legal officer, said: “This judgment is a major victory for the free press. Schedule 7 has been a blot on our legal landscape for years – breathtakingly broad and intrusive, ripe for discrimination, routinely misused. Its repeal is long overdue.

“It is also 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 face of arbitrary abuse of power by the state.”

Free speech organisations English Pen, Article 19 and the Media Legal Defence Initiative had all intervened to support the appeal. Jo Glanville, English Pen’s director, said: “While it is disappointing that the appeal was not successful on all grounds, this is a significant victory for press freedom, remedying a very worrying gap in the law for safeguarding journalistic material and sources.”

Nani Jansen, the legal director of the Media Legal Defence Initiative, said: “The seizure of journalistic data under broadly defined counter-terrorism legislation is a serious affront to media freedom, and is undoubtedly a cause of concern for investigative journalists across the globe.”

David Banisar, a legal counsel for Article 19, said: “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.”

Miranda’s first legal challenge was supported by the Guardian. The court of appeal challenge was funded by First Look Media, which publishes the online magazine the Intercept. The organisation said the appeal had been brought to defend freedom of expression and journalists’ rights.

Rachel Logan, Amnesty UK’s legal programme director, said: “This case is about whether journalists are free to go about their work in Britain without interference dressed up as security.”

A Guardian News & Media spokesperson said: “This is a victory not only for David Miranda, but for the principles of a free press and journalism in the public interest. Today’s verdict makes clear that journalism cannot be equated with terrorism, and we’re pleased that the court has highlighted that the extent of these powers should now be reviewed.”

When Miranda was stopped, he was carrying encrypted files containing journalistic material derived from Snowden, the US National Security Agency whistleblower. His counsel, Matthew Ryder QC, told the court: “Snowden, whatever you may think of him, provided information which has been of immense public importance. In this case we are talking about journalism of unusually high quality.”

Three high court judges dismissed the initial challenge in 2014, accepting that Miranda’s detention and the seizure of computer material was “an indirect interference with press freedom” but justified by legitimate and “very pressing” interests of national security.

Miranda was stopped in transit between Berlin and Rio de Janeiro after meeting the film-maker Laura Poitras, who had been involved in making disclosures based on documents Snowden leaked.

Miranda was carrying encrypted files, including an external hard drive containing 58,000 highly classified UK intelligence documents “in order to assist the journalistic activity of Greenwald”.

The Guardian made his travel reservations and paid for the trip. The high court judgment said the seized material included personal information that would allow security staff to be identified, including those deployed overseas.

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