UK: The Miranda Case and the protection of journalistic material

Lorna Woods

David Miranda is a freelance journalist who had worked on the Snowden stories for the Guardian newspaper. He was stopped and questioned for 9 hours at an airport in the UK; items in Miranda’s possession (encrypted storage devices containing information leaked by Edward Snowden about the activities of security services) were taken from him.

The interception was based on para 2(1) of Schedule 7 to the Terrorism Act 2000, which allows the police to stop and question a person at a port or border area for the purpose of determining whether the person stopped appears to be ‘concerned in the commission, preparation or instigation of the acts of terrorism’. Miranda challenged the use of the power in his case: he was not involved in terrorism but rather in carrying journalistic materials (albeit materials that contained leaked sensitive information).

The High Court found the use of the power lawful but Miranda appealed to the Court of Appeal. Did the stopping of Miranda fall within the power granted by Sch. 7? The Court concluded that, while Miranda might not have been a terrorist, the use of the power did not require that Miranda be shown so to be. Rather, the power has been given to ‘provide an opportunity for the ascertainment of the possibility that a traveller ’may be involved in terrorism’ (para 58). So it was not necessary for the police to believe that Miranda would release the information he was carrying for a political purpose, but only that it might be so released.

The Court considered whether the use of the power against Miranda was proportionate, which involves a four stage test: (i) is there a sufficiently important objective so as to justify the limitation of a fundamental right; (ii) is the challenged measure rationally connected to the objective identified; (iii) could a less intrusive measure be used; and (iv) has a fair balance been struck between the rights of the individual and the interests of the community. Miranda challenged the assessment of the fourth element as regards the balance between freedom of expression, given that Miranda was carrying journalistic materials, and the interests of national security.

The Court accepted on the basis of the ECHR judgment in Pentikainen v. Finland, that the police would need to be aware of the fact Miranda had journalistic materials for that factor to be taken into account. On the facts, that test was satisfied. The Court held that ‘[w]hen determining the proportionality of a decision taken by the police in the interests of national security, the court should accord a substantial degree of deference to their expertise is assessing the risk to national security …’ (para 79). The Court then stated, ‘[t]here is no reason to disagree with their assessment of the risk. Indeed, the court is ill equipped to do so’ (para 82) and therefore found the interference with press rights to be proportionate. The appeal also argued that the police could have used an order under Schedule 5, which was less intrusive and therefore should have been preferred under the third limb of the proportionality argument. The Court rejected this as not being an effective mechanism, or at least ‘less effective’ than the use of Sch. 7 powers (para 93).

Finally, was the use of schedule 7 in relation to journalistic material ‘prescribed by law’ as required by Article 10(2), ECHR? The concern was that ‘it is not subject to “sufficient legal safeguards to avoid the risk that power will be exercised arbitrarily and thus that unjustified interference with a fundamental right will occur”’ (para 94, citing the Supreme Court in Beghal v. DPP). The Court referred to the ECHR cases of Sanoma Uitgevers and Nordisk Film regarding disclosure of journalistic sources, accepting that judicial oversight was required there. The Court considered also the case of Nagla v. Latvia.

The Court then concluded that there was ‘no reason in principle for drawing a distinction between disclosure of journalistic material simpliciter and disclosure of journalistic material which may identify a confidential source’ (para 107). Judicial review cannot cure a disclosure of confidential material and it is unlikely that a journalist in transit would be able to arrange an emergency interim injunction to prevent such a breach. The act therefore contains inadequate safeguards in relation to journalistic material. So while the stopping of Miranda was lawful, the use of the power in relation to journalistic material was not.

Lorna Woods is a Professor at the University of Essex’ School of Law.

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The Court’s decision in the case Miranda v. SSHD [2016] EWCA Civ 6 is available in English language here.