Tuesday, 19 January 2016

David Miranda case at the Court of Appeal

It is now 6 years since the first post on this blog and I hope to continue observing some of the things happening within and to our law.  It has certainly been an interesting 6 years and I am sure that much of interest lies ahead.

The David Miranda case reached the Court of Appeal (Civil Division) and judgment was handed down today - R (Miranda) v Secretary of State for the Home Department [2016] EWCA Civ 6.  This case arose from the detention of Mr Miranda by officers of the Metropolitan Police at Heathrow Airport on 18 August 2013, purportedly under paragraph 2(1) of Schedule 7 to the Terrorism Act 2000. He was questioned and items in his possession, notably encrypted storage devices, were taken from him.  See The Guardian article 19th January by Owen Bowcott.

Terrorism is given a broad definition by Terrorism Act 2000 section 1 and the court's unanimous judgment is important in relation to the interpretation of the definition - see paras. 38 to 58 of the judgment.

Terrorism Act 2000 s.40  is where the term 'Terrorist' is defined and, under s40(1)(b), it means a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism.

Schedule 7 is headed Port and Border Controls.  Paragraph 2(1) of this Schedule, gives an 'examining officer' power to question a person for the purpose of determining whether he appears to be a person falling within s40(1)(b) - i.e. whether he appears to be concerned in the commission etc. of terrorism.  The officer may exercise his powers whether or not he has grounds for suspecting that a person falls within s40(1)(b) though, in practice, a Code for Examining Officers applies.   Schedule 7 para 2(6) also permits an examining officer to stop a person or vehicle and to detain a person for the purposes of exercising the power to question.
The court held that - (in the words of the Master of the Rolls) - the "exercise of the Schedule 7 stop power in relation to Mr Miranda on 18 August 2013 was lawful" because it was proportionate but went on to declare the stop power conferred by para 2(1) of Schedule 7 incompatible with article 10 of the Convention in relation to journalistic material in that it is not subject to adequate safeguards against its arbitrary exercise.  Lord Dyson MR added that  - "It will be for Parliament to provide such protection. The most obvious safeguard would be some form of judicial or other independent and impartial scrutiny conducted in such a way as to protect the confidentiality in the material."

A declaration of incompatibility is permitted by the Human Rights Act 1998 section 4 though  discussion of the Act and its applicability to the case is absent from the judgment.

It is possible for Ministers to initiate remedial action to amend the law - (HRA section 10) - but it may be more likely that the government will appeal to the Supreme Court.

A problem?

A difficulty with the judgment is that when legislation is incompatible with the Convention (as was ruled here) then there is no need to consider proportionality.  Any exercise of incompatible legislation must breach the convention.  However, the legislation remains in force in domestic law due to Human Rights Act 1998 section 6(2)(b) and it is a matter for Parliament whether to amend domestic law so as to remove the incompatibility.  Lord Dyson MR also ruled that the stop was lawful because it was proportionate and not lawful because of section 6(2)(b).  The reasoning is therefore problematic.  For deeper consideration of this point I refer the reader to this post on Head of Legal blog 19th January 2016 where the learned author states: " .... in my view this is a legally unsustainable ruling: it must surely be addressed and corrected by the Supreme Court."

Previous posts:

Detention of David Miranda - is this a misuse of State power?

Miranda 2 - The Code of Practice

Miranda 3 - Amendments to the law are already coming

Miranda 4 - Legal Action

Miranda 5 - Hearing in the High Court

No comments:

Post a Comment