Detention: Law of: Foreign Court Development

David Miranda Decision Gives Broad Scope to UK Detention Authority

By Matt Danzer
Thursday, February 20, 2014, 7:45 AM

As I noted in an earlier post, the UK High Court in an opinion by Lord Justice John Laws dismissed David Miranda’s suit challenging his detention by the Metropolitan Police at London’s Heathrow Airport on August 18, 2013.

Lord Justice Laws first considers Miranda’s claim that the Metropolitan Police acted beyond the scope of the authority conferred by Schedule 7 of the Terrorism Act 2000 when it detained Miranda, who is Glenn Greenwald's partner, and seized his encrypted storage devices containing documents leaked by Edward Snowden. In determining whether the examining officers detained Miranda for the proper “purpose” under the law, Lord Justice Laws explains that the court will not look to the examining officers’ state of mind as they may not be made privy to sensitive information justifying the detention for fear of unwitting disclosure; instead, “the primary evidence for the determination of the stop’s purpose is likely to be the terms of the instructions given to the examining officers,” subject to “some evidence of the hierarchy of decision-making” behind those instructions.

In this case, the UK Security Service issued a standard Port Circulation Sheet to the Metropolitan Police requesting Miranda’s detention. Metropolitan Police Detective Superintendent Jim Stokley then “acted as a filter” between the Security Service and the police to ensure that the request was in accord with Schedule 7, ultimately concluding that Miranda’s travels and connection with Snowden could lead to the secret material reaching a hostile state or terrorist organization and thus justified a stop. The final decision to detain Miranda then fell to the Ports Duty Officer, who was satisfied by the content of the Port Circulation Sheet and authorized the exercise of Schedule 7 powers. After reciting these facts, Lord Justice Laws concludes that the purpose of stopping Miranda “was to ascertain the nature of the material which [he] was carrying and . . . to neutralise the effects of its release.”

The court next turns to the question of whether this purpose was adequate to fulfill the requirements of Schedule 7. Lord Justice Laws notes that Schedule 7 does not create a criminal offense and so does not require determinations of the target’s intentions or mental state. Nor does Schedule 7 require that the examining officers have any grounds for suspecting that the target is a terrorist; rather, the purpose of the detention power “is to ascertain whether the subject” appeared to be involved in terrorist acts, including the threat of publishing classified information for the purpose of influencing government security policies. Lord Justice Laws also rejects the claim that classifying Miranda’s actions as possible terrorism is inconsistent with international principles that media reporting on terrorism should not be construed as assisting terrorists, pointing out that Schedule 7 only allows “for the ascertainment of the possibility that a traveller at a port may be involved” in various activities. Thus, the court concludes that the purpose of Miranda’s detention was proper under Schedule 7.

Lord Justice Laws continues by addressing whether Miranda’s detention was “proportionate,” beginning with a reflection on the relationship between free speech and democratic government. While acknowledging that free speech has been described as “the lifeblood of democracy,” Lord Justice Laws criticizes the proposition that “the essential justification of free expression as a fundamental value is the promotion or betterment of democratic government.” Instead, Lord Justice Laws contends that freedom of speech is a right that “belongs to every individual for his own sake,” to be contrasted with the narrower freedom of journalistic expression claimed by Miranda that is meant to “serve the public at large.” While the usual free speech test balances the private right and the public interest, in this case the court must balance “two aspects of the public interest.”

After citing extensive evidence presented by law enforcement and national security officials on the risks posed by the transfer and possible release of the information in Miranda’s possession, Lord Justice Laws criticizes Glenn Greenwald’s witness statement to the contrary as unresponsive, pointing out that while “a bare, wholly unqualified assertion by government will not be enough” to justify the exercise of Schedule 7 powers, the government’s evidence “plainly goes much further” and neither Miranda nor Greenwald are “in a position to form an accurate judgment on the matter.” Lord Justice Laws thus finds that “the Schedule 7 stop was a proportionate measure in the circumstances.”

Finally, the court looks at whether Schedule 7 detention is “repugnant” to the right of journalistic free expression contained in Article 10 of the European Convention on Human Rights and Fundamental Freedoms (ECHR), particularly due to the law’s lack of prior judicial scrutiny. Lord Justice Laws finds that Schedule 7 “does not offend” Article 10 because of the numerous constraints on Schedule 7 powers and the fact-intensive manner in which the European Court of Human Rights has applied Article 10 to cases of state interference with journalistic freedom.