This is a round-up of some interesting recent links about law and policy. It is a subjective list and does not pretend to be comprehensive.
The membership of the panel for the inquiry into the death of Daniel Morgan and the subsequent police investigations has been announced. The background is set out at my New Statesman post. This will be worth keeping an eye on – especially if the panel explores the complex relationships between police, private investigators, and the media in the period.
Also on policing, here is a useful page on judicial reviews for police cautions by Justin Leslie.
Robert Jay was the QC famous for his examinations of witnesses at the Leveson Inquiry. He is now a High Court judge. In one of his first cases since joining the bench full time, he has held for the police. At first glance, it seems just another court-sides-with-police-in-public-protest case. However, the case turns on its own facts, and Jay (or “Jay J.” as he is now formally known) makes some fairly liberal statements about protesters who “stand on their rights” which, he says, cannot be unreasonable by definition.
Surveillance and security
The HS2 project is controversial. So HS2 commissioned a report from KPMG to set out its supposed economic advantages. However, in a single post Robert Peston has identified flaws in the report, including (as he says) a jaw-dropping assumption. His post is a great example of someone looking critically at a policy-related document rather than accepting the headline spin.
This is a round-up of some interesting recent links about law and policy. It is a subjective list and does not pretend to be comprehensive.
The Home Office announced that Taser use had increased up to 2011. The Guardian analysed the data and also reported on worries about the increase. The IPCC issued a statement stating their “concerns about some of the ways and circumstances in which the Taser is used, bearing in mind that each use must be justified“.
However, there is no doubt some truth in the satirical site NewsThump’s take: Tasers are brilliant fun and no-one can believe their use has only doubled in the last two years, according to Home Office officials.
Rule of law
Some of the best, most powerful legal writing is now appearing in the London Review of Books. Two recent examples, both on the rule of law, are this book review by Stephen Sedley (perhaps the greatest appeal judge of recent years) and this blogpost by Francis Fitzgibbon – excellent, must-read pieces.
Major public sector IT projects, unless something exceptional happens, tend to be be failures. So far, “Universal Credit” has not been one of these exceptions. The scathing National Audit Office report is here and comments by Tony Collins, a journalist with long experience of reporting on such failures are here. He has also posted on the reason why many government IT projects fail.
One of the trickiest areas of intellectual property law is the use and exploitation of “characters”, as opposed to the protection of any works in which the character is portrayed. The latest in a sequence of cases is that of Ghost Rider, where litigation between Marvel and the character’s creator is reported to have settled.
This is a round-up of some interesting recent links about law and policy. It does not pretend to be comprehensive.
The Ministry of Justice has launched a further consultation on judicial review. This was accompanied by a fairly silly article by the Lord Chancellor. Adam Wagner’s response to that article is excellent.
Rule of Law
In contrast to the Lord Chancellor, the Attoreny-General does “get” the rule of law, and this is his impressive recent speech at a conference in Moscow. This is well worth reading.
Panorama did a documentary last night on policing and mental health. Mental Health Cop blogs about it here.
Lyndon Harris explains how sentencing for death by dangerous driving works in response to concerns over a recent news story.
Andrew Sharpe, one of the lawyers who helped on the “Twitter Joke Trial”, explains why he left life as a City partner.
This is a major reversal for the MoJ and its departmental minister, Chris Grayling. The announcement is a significant admission of failure in policy-making, and it is a proposal which came worryingly close to implementation, for today’s reality-check was certainly not inevitable.
The proposal was “ambitious” (for fuller details see my April post at the New Statesman here).
Instead of the existing market-place for providers of criminal defence legal services (mainly High Street solicitors), the MoJ was going to offer a limited number of high-value contracts which almost all current providers simply could not afford to bid for. The hope – and it had no more a realistic nature than a hope – was that the desired super-providers would somehow appear. The MoJ could not explain how this would actually happen, but their proposal was predicated on this wished-for market change. The MoJ was even willing to remove the historic right of those arrested to choose their own solicitor so as to guarantee revenue-streams for these (imagined) super-providers.
This proposal was not “Thatcherism gone mad”. Indeed, it made no sense whatever one’s ideology. It was simply unworkable. There was no reason to believe these super-providers would appear (and, in fact, because of regulatory requirements, it would be almost impossible for High Street firms to even merge in the time available). Nor did the proposal make sense from a budget reduction perspective: the MoJ could not explain how this proposal would save any money. It even had to admit that the implementation costs would mean higher expenditure in the short-term.
Even though the proposal was self evidently daft – and dangerous – the MoJ pressed ahead with it anyway. This was not some feint so as to get support for budget reductions elsewhere – the MoJ genuinely planned the new contracts to be let this year.
This was simply not serious policy-making. Two months ago, the MoJ quietly announced it was dropping the proposal to restrict the choice of those arrested to choose a solicitor. It is now dropping the proposed competition model altogether.
The budget reductions facing the criminal (and civil) legal justice system are real, and so mature thought needs to be given as to how such reductions can be implemented without adversely affecting the administration of justice. All this needs a competent politician and a competent government department.
However, the wild goose chase of the now-dropped price competition proposal suggests that neither Grayling nor his department are up to the task of intelligent and realistic policy-making. The proposal simply should never have got this close to implementation.
The legality of the detention of David Miranda is still before the courts (there have only been interim hearings so far). My view is that the detention was likely to have been unlawful – and this also is the opinion of Charles Falconer, a former minister who helped introduce the relevant legislation.
However, the leading legal blogger Carl Gardner takes a different view.
Nonetheless, there is consensus that the key legal issue is whether the UK government used its Schedule 7 power of detention for its proper statutory purpose. For, as David Anderson - the independent reviewer of terrorism legislation who is also investigating the Miranda case – said in a 2012 report (at paragraph 10.63):
…gathering intelligence [is] an important by-product of the Schedule 7 examination, albeit one that can never serve as the prime motive for a stop.
One thing in Naomi’s posts which was especially eye-catching about the use of Schedule 7 is her mention of a sentence being deleted “for legal reasons” from a Guardian piece by the deputy prime minister.
The archived version shows that the original published piece had the words:
The intent behind detaining Miranda was the same: to retrieve or destroy classified information.
But the current version omits those words, and says at the end:
This article was amended on 23 August 2013 after a request from the deputy prime minister’s office based on legal reasons.
Anyway, let’s see what the High Court says about all of this. The substantive hearing is due in October.
This is the full text of the letter before action sent by David Miranda to the Home Office and the Metropolitan Police.
**Letter sent under CPR 54 Pre-action Protocol for Judicial Review –
Response Requested by 12pm today – full response by 27 August 2013 **
Proposed Claimant: Mr David Michael Dos Santos Miranda (dob:10.05.85)
Proposed Defendants: Secretary of State for the Home Department and
Commissioner of Police of the Metropolis
Home Office – Port Reference: T5-A-0188-13
1. We write to inform you that we intend to challenge our client’s
detention under Schedule 7 Terrorism Act 2000 at Heathrow airport
on 18 August 2013, and the consequent unlawful taking and retention
of his property including sensitive journalistic materials.
2. We have set out our proposed grounds of claim below. The purpose of
this letter is to comply with the CPR 54 Judicial Review Pre-Action
Protocol. We also want to give the Defendants an opportunity to
reconsider their position and respond in a way that either makes the
proposed claim unnecessary, or narrows what is in dispute, or at least
makes their position clearer.
3. In terms of the timing of any proceedings which may be necessary, we
require immediate undertakings, set out below, to prevent any
further harm caused by the Defendants’ actions whilst the legality of
the seizure of his property is in the process of being determined. If
undertakings in the following terms are not provided by 12pm on 20
August, we will be left with no option but to seek urgent interim
injunctive relief in the High Court and seek costs on an indemnity
4. We ask that the Secretary of State and the Commissioner of Police of
the Metropolis undertake that there will be no inspection, copying,
disclosure, transfer, distribution or interference, in any way, with our
client’s data which was seized pursuant to Schedule 7, pending
determination of our client’s claim.
5. If there has already been inspection, copying, disclosure, transfer,
distribution or other interference with that data we require
undertakings that the product of that inspection or interference will
not be disclosed, shared or used further in any way, and will be kept
secure pending the outcome of our client’s challenge to the legality
of the seizure of that data.
6. If any other public authority or third party – either domestic or
foreign – has been granted possession or access to that data (or copies
of it) we require you to provide similar undertakings from each of
those parties if you are in a position to do so. Further, or
alternatively, we require immediate disclosure by you of the identity
of those parties to whom such access or disclosure has already been
given so that we may obtain similar undertakings from them directly.
7. Our client’s electronic equipment, including his mobile phone, laptop,
memory sticks, smart-watch, DVDs and games consoles were
confiscated. In addition to the undertaking’s outlined above, we
would ask that the property be returned within 7 days of their being
taken, and no later than 25 August, as set down in paragraph 11(2) of
8. By way of remedy, we seek a quashing order, and a declaration that
the decisions to detain our client, question him under pain of criminal
sanction, and seize his property under Schedule 7 were wholly
unlawful. We will also seek a mandatory order that all data seized
and all copies be destroyed, and recalled if transferred to third
parties. We will argue that the decisions were unlawful for the
i. The Schedule 7 powers were utilised in relation to our
client who was merely in transit in the UK. The
Defendant is required to justify the use of Schedule 7
powers in relation to a person in such circumstances.
ii. The decision to detain and question our client and to
seize his property pursuant to the powers in Schedule 7
amounted to a frustration of the legislative policy and
objects of the Terrorism Act 2000 Schedule 7 power
and/or was for an improper purpose, and was therefore
iii. The decisions to use Schedule 7 powers in our client’s
case amounted to a grave and manifestly
disproportionate interference with the Claimant’s
rights under Articles 5,6,8 and 10 ECHR.
iv. Further, or alternatively the powers under Schedule 7
are incompatible with Articles 5,6,8 and 10 ECHR.
9. Given the urgency of the matter, this letter is sent to outline our
grounds and put the Defendants on notice of the claim. However, as
further details emerge, we reserve the right to amend our grounds.
10. We are aware that there are a number of cases in which Schedule 7
powers are in the process of being challenged. However, the use of
Schedule 7 powers in relation to our client in order to obtain access
to journalistic material is of exceptional and grave concern.
11. We hope that the misuse of this power in these circumstances will be
clear, and that we can reach agreement on the legality of our client’s
search, given the facts of the case. However, insofar as our client’s
claim also makes a wider challenge to the compatibility of Schedule 7
with fundamental rights and seeks declaratory relief, it appears to us
that this will require Parliamentary action if the court agrees with the
Claimant. Therefore, it will be incumbent upon us to issue
proceedings, in any event. For that reason, we consider it
appropriate to abridge the time of service for the detailed protocol
response to 7 days. If you disagree, please let us know by return and
set out your proposed timetable. We stress, however, that we seek
the undertakings set out above on a more urgent timetable.
12. We would be grateful if you would respond to this letter in line with
the pre-action protocol for judicial review by close of business on 27
13. Our client, Mr David Miranda, is a Brazilian citizen. He is in a long
term relationship with Mr Glenn Greenwald a journalist, who has
written a series of stories for the Guardian including articles relating
to mass surveillance programmes by the US and UK government
14. Our client assists Mr Greenwald in his legitimate journalistic work and
was doing so when he was detained, pursuant to Schedule 7 powers.
15. At that time, our client was travelling from Berlin to the couple’s
home in Rio di Janeiro via Heathrow airport on 18 August 2013. During
his trip to Berlin, he visited Laura Poitras, a film-maker who has been
working with Mr Greenwald. The Guardian paid for our client’s flights
because of the work he was doing with Mr Greenwald.
16. At 8.05am our client was detained, shortly after he had begun
changing flights and was in transit at Heathrow airport.
17. Guardian News contacted Kate Goold, Associate in this firm’s crime
team. She arranged for Mr Gavin Kendall to represent Mr Miranda.
18. After multiple efforts to make contact with our client through an
initial telephone call, Mr Kendall attended in person as he was given
no telephone access to our client.
19. Mr Kendall arrived at Terminal 5 at 3.25pm. He called a sergeant who
said he would send someone to collect him. Twenty minutes later he
was brought through by an officer whose warrant number was 203654.
The only explanation proferred by the police for our client’s
treatment was that he was detained pursuant Schedule 7 Terrorism
Act 2000 at 8.05am. They confirmed that he would be released at
20. At 4.05pm Mr Kendall was finally granted access to our client – just
one hour before the 9 hour statutory maximum detention power
expired and after our client had been subject to intensive, intrusive
questioning by approximately six different officers over the day.
21. Mr Kendall asked whether our client was being detained as a result of
a suspected offence in the UK or on behalf of another state, country
or government organisation abroad. He was told the police could not
say and was not provided with any explanation for his detention. They
refused to confirm what our client had been asked before his
representative arrived, nor would they provide him with a record of
what was discussed. Our client asked for a pen to write down the
questions and this too had been refused. Our client was not provided
with an interpreter and found the whole experience most distressing.
22. At 8.15am our client was issued with the appended Schedule 7 Notice
of Examination TACT 1 form which described the purpose of his
detention as follows:
“This notice is to inform you that you are being questioned under the
provisions of Schedule 7 to the Terrorism Act 2000 as someone whose
presence at a port of in the border area (in Northern Ireland) is
connected with entering or leaving any place in Great Britain or
This applies to a person travelling by air [….]
This in itself does not necessarily mean that the Examining Officer
who is questioning you suspects that you are a person who is, or has
been, concerned in the commission, preparation or instigation of
acts of terrorism. The purpose of the questioning is to enable him to
determine whether you appear to be such a person.
At this stage you are not under caution, arrest or detention.
However, should the circumstances change you will be notified.
[…you must answer all questions and hand over any data or
documents requested ]
“If you deliberately fail to comply with any of these duties, you
could be prosecuted under paragraph 18(1) of Schedule 7 to the
Terrorism Act 2000.”
23. At 8.25am he was served with the TACT2 Notice of Detention
(INTERIM 2011). A copy of that notice is appended hereto.
24. The following items were listed on our client’s ‘Detained Property
List’ which is appended to this letter signed by examining officer
1. Samsung Laptop
2. Samsung Phone
3. 1 x Gold, 1 x Silver Memory Stick
4. 2 x DVDs (The Oath My Country My Country)
5. Sony Games Console
6. Smart Watch
7. Hard Drive.”
25. These items contain sensitive, confidential journalistic material and
should not have been seized. It is axiomatic that if the police seek
access to sensitive/personal/confidential/journalistic material of this
kind they will ordinarily be required to do so by way of a production
order and will have had to satisfy a number of important legal
requirements that protect journalistic material of this nature. The use
of Schedule 7 powers against our client appears to have enabled the
police to circumvent all of those important legal protections and
obtain that information from him by coercive means accompanied by
the threat of prosecution if he failed to comply.
Legal Framework and Submissions
Schedule 7 to the Terrorism Act 2000
26. Schedule 7 gives police officers and other officials broad powers to
detain, question and search individuals travelling through ports and
airports in the United Kingdom to determine whether or not a person
appears to be a terrorist, as defined by section 40(1)(b) of the Act.
27. Paragraph 2 applies to a person if (a) he is at a port or in the border
area and(b) ‘the examining officer believes that the person’s
presence… is connected with his entering or leaving Great Britain or
Northern Ireland or his travelling by air within Great Britain or within
28. Importantly, those powers do not require reasonable grounds for
suspicion (or even subjective suspicion) on behalf of the officers
exercising them. On the contrary, they are only capable of being
exercised where the individual in question is not suspected of being
involved in terrorism: individuals who are suspected of involvement in
terrorism must immediately be cautioned and advised of their legal
rights (including the right to remain silent) and cannot be compelled
to answer questions.
Application of Schedule 7 powers
29. Our client had not entered through UK immigration, nor was he
travelling by air within Great Britain or the UK.
30. In such circumstances, the Defendant is required to justify how
Schedule 7 powers could apply to an international traveller who is at
an airport in transit without ever passing into the United Kingdom.
Misuse of power / improper purpose
31. The decision to detain, question and search our client involved an
unlawful exercise of the powers under Schedule 7. The powers under
Schedule 7 are intended to facilitate inquiries aimed at determining
whether the person being questioned is or has been concerned in the
‘commission, preparation or instigation of acts of terrorism’.
‘Terrorism’, for these purposes, means the use or threat of violence
designed to influence the government or intimidate the public and
which is done for the purpose of advancing a political, religious, racial
or ideological cause (section 1).
32. Our client is a Brazilian citizen. He is in a relationship with an
American journalist who writes for international newspapers such as
The Guardian and The News York Times. At the time of his detention
and search under Schedule 7, our client was travelling to Brazil in
connection with his and his partner’s legitimate journalistic activities.
Our client has no criminal record. Neither our client nor his partner
has any connection with any terrorist or extremist groups of
proscribed organisations. The Defendant’s use of Schedule 7 powers in
the present case was therefore plainly not aimed at investigating
whether our client was involved in the commission, preparation or
instigation of politically motivated acts of violence. This is evident
from the nature of the questions that were put to our client during his
Schedule 7 interviews, which did not suggest any involvement in the
preparation etc. of unlawful violence.
33. Instead, in the absence of any other explanation, it appears clear that
the decision to detain, question and search our client was driven by a
desire to obtain access to the confidential journalistic material that
was in our client’s possession. The Defendant’s exercise of the
Schedule 7 powers was not pursuant to the proper statutory purpose,
but was for a different, improper purpose. In frustrating the
legislative purpose, the Defendant has acted unlawfully: Padfield v
Minister of Agriculture, Fisheries & Food  AC 997.
34. Schedule 7 is not intended to be used as a mechanism for gaining
access to journalist and others’ private information merely because
journalists are passing through a UK port. A number of legal
mechanisms are available to a public authority that wants to obtain
confidential information held by a journalist, including application to
the Crown Court for a production order. Those mechanisms contain
explicit safeguards that are designed to protect the confidentiality of
journalistic sources and to prevent disproportionate infringements of
journalists’ Article 10 rights.
35. For example, the Police and Criminal Evidence Act 1984 (PACE)
enables public authorities to apply for search warrants or production
orders that enable the police to search premises and seize property
and comupterised information connected with the commission of
criminal offences. Under the Act, some classes of material are
subject to additional protection from seizure. These include legally
privileged material, journalistic material and certain types of
material held in confidence. “Special procedure material” is defined in
section 14 of PACE and includes journalistic material and material
acquired in the course of a trade, profession or similar and which is
held subject to a duty of confidence. Schedule 1 of the Police and
Criminal Evidence Act 1984 sets down conditions for the police to
apply to court for a warrant to compel a person to hand over (or to
seize) special procedure material, if certain conditions are met.
36. Similar provisions are contained in schedule five to the Terrorism Act
2000. Broadly, in terrorist cases, the court can order the production
or seizure of special procedure material where the order is sought for
the purposes of a terrorist investigation; there are reasonable grounds
for believing that the material is likely to be of substantial value to
that investigation; and there are reasonable grounds for believing that
it is in the public interest for the material to be disclosed, having
regard to the benefit likely to accrue to the investigation, and the
circumstances under which the person had the material in his or her
possession. These conditions are reasonably similar to those under
PACE, albeit slightly less stringent.
37. By using Schedule 7 to obtain our client’s confidential journalistic
information, the Defendant deliberately bypassed the appropriate
statutory regimes for obtaining confidential journalistic information
and circumvented the important safeguards (including the
requirement to obtain a court order before seizing material)
contained in those mechanisms. The decision was a flagrant misuse of
the Defendant’s statutory powers.
Arts 5,6,8,10 ECHR
38. The Defendant’s actions in detaining, questioning and searching our
client and confiscating his confidential journalistic material breached
our clients rights under Articles 5, 6, 8 and 10 of the European
Convention on Human Rights (as incorporated into English law by the
Human Rights Act 1998).
39. Our client was detained by police for almost nine hours in a secure
area at Heathrow Airport. During this time out client was not
permitted to leave the room in which he was held and was prevented
from contacting his family and friends. His detention therefore
constituted a deprivation of liberty for the purposes of Article 5
40. The European Court of Human Rights has previously indicated that, in
relation to a ‘stop and search’ lasting between 20 – 30 minutes, the
‘element of coercion involved was indicative of a deprivation of
liberty’ (Gillan v United Kingdom). Similarly, in Shimovolous v Russia
(App. No. 30194/09, 21 June 2011) the Court found a deprivation of
liberty in circumstances where an applicant was taken to a police
station to establish his identity and to answer questions regarding his
movements, during a process that took 45 minutes. It is therefore
clear that detaining an individual in a secure zone at an international
airport lasting for almost nine hours engages Article 5.
41. The Applicant’s detention was not ‘in accordance with law’. Gillan v
United Kingdom establishes that a power to stop, search and question
a person through coercion will not be ‘in accordance with the law’ if
it is insufficiently circumscribed and lacks sufficient safeguards
against its arbitrary exercise and abuse. The Schedule 7 powers used
against our client fail to meet those requirements.
42. Our client does not, of course, suggest that all powers of questioning
and search at airports and ports should be curtailed or are invalid.
Immigration officers properly use other more carefully circumscribed
and focused powers that enable them to question passengers at
airports. However unlike Schedule 7, those powers are proportionate
and are significantly curtailed because they are directly connected to
the context in which the person is travelling, their immigration status
and their movement of goods into or out of the country.
43. In contrast, the powers under Schedule 7 are too broadly drawn. They
provide wide scope for disproportionate and discriminatory use:
(a) First, in the absence of a requirement of reasonable
grounds for suspicion, there is no meaningful way of
properly focusing on who will be examined and preventing
subjective and illegitimate factors – for example, a desire
to obtain information unrelated to potential involvement in
terrorism – from contaminating the exercise of those
(b) Second, the powers themselves are disproportionate. The
breadth of searching, questioning and investigation that
officers may undertake has no rational connection to a
person’s presence at a port or his activity at that location.
The powers therefore go far beyond the activity that
triggers them (namely, a person’s arrival at a port).
Accordingly, merely because a person happens to be
travelling, police officers may require him to answer
questions about matters entirely unconnected with his
travel, or to seize and copy his possessions. Persons may be
subjected to questioning or searches that would be entirely
inappropriate in any other location (or which would at
least be accompanied by certain legal protections if
This scope for abuse, while theoretical in some cases, is
illustrated vividly by the use of the powers on our client in
(c) Third, in general terms, there is no way to prevent
improper racial, religious or other discrimination in the
exercise of Schedule 7 powers other than through
encouragement not to do so in the accompanying Code.
Statistics consistently reveal a significant disparate impact
of the exercise of Schedule 7 on minority communities.
Nor is there any way of sufficiently ensuring that the
powers are not applied for an improper purpose.
44. Our client’s deprivation of liberty cannot be justified under Article
5(1). The only potentially relevant ground for justifying the detention
is contained in Article 5(1)(b): ‘lawful arrest or detention… in order
to secure the fulfilment of any obligation prescribed by law’. The
case law of the Strasbourg Court demonstrates that, for this ground to
apply, the ‘obligation’ must be ‘already incumbent on the person
concerned’ prior to the police exercise their powers to compel the
fulfilment of that obligation (see Vasileva v Denmark Application No.
52792/99, 25 September 2003).
45. At the point in time when our client was subjected to Schedule 7
powers he was lawfully progressing through transit at Heathrow
Airport and had not failed to comply with any order or obligation
prescribed by law. Accordingly, there was no lawful basis under
Article 5(1) for depriving our client of his liberty.
46. Our client was held for almost nine hours, during which time he was
prevented from contacting his partner and he was required to answer
a number of personal questions including about his relationships. Our
client was physically searched and prevented from boarding his flight
to his home country of Brazil. In addition, his personal belongings,
including electronic devices, his mobile telephone and laptop were
seized for the purpose of searching their contents. In these
circumstances, there was clearly an interference with our client’s
Article 8(1) right to respect for his private life and correspondence.
47. That interference must be justified under Article 8(2) and must be ‘in
accordance with the law’. For the reasons explained above in relation
to Article 5, the interference with our client’s rights under Article
8(1) was not in accordance with the law. In addition, since our client
has no involvement in any terrorist activities, his detention also failed
to pursue any legitimate objective. For all these reasons, the
Defendant’s decision to detain, question and search our client
violated Article 8.
48. The case law of the Strasbourg Court repeatedly emphasises the
importance of protecting journalists’ sources. In Goodwin v UK (1996)
1 BHRC 81 the Court stated:
‘Protection of journalistic sources is one of the basic conditions for
press freedom, as is reflected in the laws and the professional codes of
conduct in a number of contracting states and is affirmed in several
international instruments on journalistic freedoms (see amongst others the
Resolution on Journalistic Freedoms and Human Rights, adopted at the 4th
European Ministerial Conference on Mass Media Policy (Prague, 7–8
December 1994) and the Resolution on the Confidentiality of Journalists’
Sources by the European Parliament of 18 January 1994 (OJ 1994 C44, p
34)). Without such protection, sources may be deterred from assisting the
press in informing the public on matters of public interest. As a result the
vital public watchdog role of the press may be undermined and the ability
of the press to provide accurate and reliable information may be adversely
affected. Having regard to the importance of the protection of journalistic
sources for press freedom in a democratic society and the potentially
chilling effect an order of source disclosure has on the exercise of that
freedom, such a measure cannot be compatible with art 10 of the
convention unless it is justified by an overriding requirement in the public
49. In his concurring judgment Judge De Meyer emphasised that:
‘The protection of a journalist’s source is of such a vital importance for the
exercise of his right to freedom of expression that it must, as a matter of
course, never be allowed to be infringed upon, save perhaps in very
50. The Court recently restated these principles in Financial Times v
United Kingdom (2009) 28 BHRC 616:
‘The court reiterates that freedom of expression constitutes one of the
essential foundations of a democratic society and that, in that context, the
safeguards guaranteed to the press are particularly important.
Furthermore, protection of journalistic sources is one of the basic conditions
for press freedom. Without such protection, sources may be deterred from
assisting the press in informing the public on matters of public interest. As a
result, the vital ‘public watchdog’ role of the press may be undermined and
the ability of the press to provide accurate and reliable reporting may be
adversely affected. Having regard to the importance of the protection of
journalistic sources for press freedom in a democratic society and the
potentially chilling effect that an order for disclosure of a source has on the
exercise of that freedom, such a measure cannot be compatible with art 10
unless it is justified by an overriding requirement in the public interest (see
Goodwin v UK (1996) 1 BHRC 81 at para 39)’
51. These principles are reflected in section 10 of the Contempt of Court
Act 1981, which prevents a court from ordering a person to disclose
the source of information contain in a publication for which he is
responsible unless the court is satisfied that disclosure is necessary in
the interests of justice or national security or for the prevention of
disorder or crime. They are also reflected in a long line of domestic
authorities (see, for example, X Ltd v Morgan-Grampian (Publishers)
 2 All ER 1; Ashworth Hospital Authority v MGN Ltd (2002) 12
BHRC 443; Mersey Care NHS Trust v Ackroyd (No. 2)  EWCA Civ
101) as well as the additional protections afforded to journalists;
sources in legislation such as PACE.
52. The decision to seize our client’s journalistic material constituted a
clear infringement of our client’s rights under Article 10(1). For the
reasons explained above, the infringement of that right was not ‘in
accordance with law’ for the purposes of Article 10(2). Nor did it
pursue a legitimate objective or represent a proportionate restriction
on our client’s right.
53. In addition, the fact that journalistic material may be seized for
examination without prior warning or explanation is likely to have a
seriously chilling effect on the ability and willingness of journalists to
travel to and from the United Kingdom.
54. For all these reasons, the coercive powers under Schedule 7 and their
application against our client violate Article 10.
55. Article 6 ECHR protects the privilege against self-incrimination (see
for example Saunders v United Kingdom (1997) 23 EHRR 313; JB v
Switzerland  Crim LR 748; Heaney and McGuinness v Ireland
(2001) 33 EHRR 264). The breadth of the principle is reflected in
O’Halloran and Francis v United Kingdom (2008) 46 EHRR 21:
‘in all cases to date in which ‘direct compulsion’ was applied to require an
actual or potential suspect to provide information which contributed, or
might have contributed, to his conviction, the Court has found a violation of
the applicant’s privilege against self-incrimination.’
56. Paragraph 5 of Schedule 7 provides that a person who is questioned
under paragraph 2 must giving the examining officer ‘any information
in his possession which the officer requests’. Failure to comply with
such a request is punishable by up to 51 weeks’ imprisonment.
Importantly, the Act contains no provision restricting (a) the scope of
permissible questioning or (b) the admissibility of statements or
evidence obtained through the exercise of those coercive powers.
Incriminating statements and evidence obtained through questioning
under Schedule 7 are therefore admissible, in principle, in a
subsequent criminal trial against the individual subjected to
57. Our client was required to answer numerous questions and to divulge
the confidential passwords to his personal computers, telephone and
encrypted storage devices. The abrogation of our client’s privilege
against self-incrimination cannot be justified merely by reference to
any national security or public interest arguments: in Heaney and
McGuinness v Ireland the Strasbourg Court expressly held that security
and public order concerns ‘cannot justify a provision which
extinguishes the very essence of the applicants’ right to silence and
against self-incrimination guaranteed by Article 6(1)’. The use of the
compulsory powers of questioning against our client violated Article 6.
Action which the Defendant is requested to take
58. We ask that the Defendant agree that the detention, questioning and
seizure of our client’s confidential journalistic and other material was
unlawful, and consequently agree to return all property and
undertake to destroy all copies of materials retained, and confirm
that they have not been shared with any third parties.
59. Our client is also entitled to other relief, including damages for his
unlawful detention and other breaches of his fundamental rights.
Disclosure Sought under Pre-Action Protocol CPR 54
60. Please provide with your reply the following information requested in
line with the duty of candour, which applies equally under the preaction
protocol for judicial review to assist the court and in
furtherance of the overriding objective. (It is in any event information
to which our client is entitled under section 7 Data Protection Act
1998 and section 1 Freedom of Information Act 2000).
a. Please provide a full copy of our client’s records including:
o Tape and transcript of our client’s police interviews;
o The incident report, notebooks/pocket books of officers
o Any other records held by the police in relation to the incident
and our client;
o Any statements taken;
o Copies of all other documents, correspondence, internal
memos and emails in relation to our client;
o A print out of our client’s Police National Computer records.
b. Please confirm ho authorised the use of Schedule 7 powers
against our client and on what grounds?
c. Please confirm whether or not any UK government ministers,
or any third parties, such as US government ministers, were
consulted prior to the use of the power and, if so, whether
they approved of its use.
d. Please confirm whether any information obtained in the course
of our client’s detention has been passed onto third parties
including foreign state powers – if so, who, when, what and on
what legal basis?
e. Please confirm the number of times Schedule 7 has been used
to stop and seize journalistic material in the last 5 years, with
a breakdown by year.
f. Please explain why the use of Schedule 7 powers was
considered appropriate in relation to the seizure of journalistic
material in this case.
61. As is hopefully clear, our client has embarked upon this course of
action in order to prevent further harm being caused as a result of the
consequences of the decision to detain and question him. In relation
to the parts of his claim that do not require the involvement of a
Court (e.g. the return of his belongings and all related data) he would
be willing to consider ADR. However, other issues in the case are such
that judicial oversight is likely to be necessary. We seek the
Defendant’s views on mediation in your reply.
62. Should you have any queries please contact Gwendolen Morgan,
solicitor with conduct of the case in the Public Law and Human Rights
department on [ ].
63. We look forward to hearing from you by 12pm today, 20 August, in
relation to the undertakings requested and your substantive response
by close of business on 27 August 2013.
Was the nine-hour detention of David Miranda lawful?
To answer this, let us start with what we know about the detention..
The official statement of the Metropolitan Police was as follows:
At 08:05 on Sunday, 18 August a 28-year-old man was detained at Heathrow airport under schedule 7 of the Terrorism Act 2000. He was not arrested. He was subsequently released at 17:00.
This provides official confirmation of three crucial facts.
First, that the duration of the detention was just under nine hours.
Second, that the man was not arrested in respect of – still less charged of – any criminal offence. The man was allowed to fly on to his destination.
Third, that the detention was under schedule 7 to the Terrorism Act 2000.
Now, taking these three facts together a fuller picture begins to emerge.
The power to question
The use of schedule 7 of the 2000 Act is significant. The schedule is set out here, and it provides at paragraph 2(1):
An examining officer may question a person to whom this paragraph applies for the purpose of determining whether he appears to be a person falling within section 40(1)(b).
(Schedule 7 has legal effect under section 53(1) of the 2000 Act.)
The paragraph 2(1) power is limited to a specified purpose, that of “determining” whether a person falls within section 40(1)(b) of the 2000 Act. Therefore, if that is not the purpose then the power to question is not being lawfully exercised.
Paragraph 2(4) goes on to provide that an examining officer may exercise the power whether or not he or she has grounds for suspecting that a person falls within section 40(1)(b). This means that there does not actually need to be a reasonable suspicion. However, paragraph 2(4) does not negate the requirement that the power be exercised for the purpose specified.
The power to detain
A power to question is not the same as a power to detain.
And so paragraph 6(1)(b) provides a power to detain a person for the purpose of questioning.
However, paragraph 6(1)(b) does not provide a power to detain that person – unless they are being questioned to determine whether they fall within section 40(1)(b) of the 2000 Act.
Therefore, this is not a general power to detain, and it is conditional on the person (a) being questioned for (b) the specified purpose.
So if the person is being detained for any other purpose then the power to detain is not being lawfully exercised.
As long as the power to detain is being used for its appropriate purpose then under paragraph 6(4), that detention can be for up to nine hours. However, the nine hours long-stop only applies whilst the examination continues. Once it is over before the end of nine hours, then the person should be released.
What section 40(1)(b) says
So schedule 7 provides a limited power to question and a limited power to detain.
Both the powers to question and to detain are conditional on the purpose of whether a person falls within section 40(1)(b) of the 2000 Act.
So the next question is fundamental – what does section 40(1)(b) say?
Section 40(1)(b) is a definition clause, and it provides the following definition of “terrorist”:
a person who…is or has been concerned in the commission, preparation or instigation of acts of terrorism.
Section 40(1)(b) thereby is a limiting definition – the questioning (and any period of detention) under schedule 7 is for seeing if a person falls within this definition. Accordingly, any questioning (and any period of detention) which is not for this specified purpose is outside the scope of the provision.
This limit is also significant as we look at the power of search and examine: paragraph 9 limits the power to examine property to determine whether the person falls within section 40(1)(b). It is not a general power of search.
However, once property has been taken, then paragraph 11(2) provides it can be retained:
(a) the purpose of examination, for a period not exceeding seven days beginning with the day on which the detention commences, [or]
(b) while [the officer] believes that it may be needed for use as evidence in criminal proceedings [...]
So, once the property has been taken from the detained person it can be kept for evidence in criminal proceedings, regardless of whether the detained person is within the category of “terrorist”.
Compulsion and coercion
Under paragraph 5(a), the detained person “must give the examining officer any information in his possession which the officer requests”. Under paragraph 18, it is an imprisonable offence for that person not to comply with any duty (including the duty to provide information).
So the questions are asked under threat of coercion.
What schedule 7 is for and what it is not for
The legal powers provided under schedule 7 are broad, but they are also confined.
Unless they are being used for the specified purpose of determining whether the detained person fills the definition of “terrorist” under section 40(1)(b) then the power to detain and question cannot be lawfully used.
And if that is not the purpose, then the power to search for property to assist in determining whether a person is a terrorist is not triggered, and this in turn means that the power to retain any property for evidence in criminal proceedings is also not triggered.
In other words, schedule 7 cannot be used as a fishing expedition for property.
A detention of nine hours
David Miranda was detained for just under nine hours.
This is exceptional.
According to the official report on use of terrorism powers, only 0.06% of detainees are held for more than six hours. This is not surprising given the limited scope of the question to be determined. It seems 97.2% of those detained are freed in less than one hour.
For someone to be detained for almost the full nine hours is exceptional. Even the “watchdog” for anti-terrorism legislation has called it “unusual”.
What the Americans have said
All the above can be worked out just from the Met police confirmation.
It is reported that the American government had advance notice of the detention.
If this is the case, then this appears to open a serious question [*Add for clarity - in this particular case] – if the officers knew in advance that Miranda was to be detained, they knew who he was. He was not some random passenger.
Accordingly, if they knew who he was, then it would seem – to me – that [*Add for clarity - in this particular case] they would not therefore need to question and detain him to see if he fulfilled the section 40(1)(b) definition. They knew full well whether he did, or if he did not. The questioning would be artificial.
In other words, by flagging the American government with an advance notice of the detention [Add for clarity - in this particular case], it would seem to me that [*this] detention could not have been genuinely for the purpose of determining if Miranda fell within section 40(1).
And if that was not actually the actual purpose of the detention, then there would be no power to question, detain and search David Miranda at all.
But in any case, and in summary: if the questioning, detention, and search of Miranda was for a purpose other than to determine if he was a terrorist, then it was unlawful.
[Add - 20 August 2013 - Joshua Rozenberg raises the alternative ground of illegality that the nine hour detention was disproportionate.]
[*Adds - 20 August 2013 - changes in the last few paragraphs to make intended meaning clearer - I was not making a general point that prior notice and awareness always meant a detention unlawful - but that in the case of Miranda it seems to me that they would have been aware that he was not a terrorist.]
Today Bradley Manning apologised at the military tribunal – the apology is here.
The apology reads as if it was drafted by his defense lawyers: it is not only contrite, but it presses every button for the tribunal not to impose a harsh sentence.
This should not be a surprise, for the impression which has formed for many following this prosecution is that Manning is getting very good legal advice.
Instead of denying all charges, a wise decision was taken to admit the lesser charges and focus the defense on the more serious ones. That tactic worked: Manning was found not guilty on the more serious charges.
Now at sentencing, there is contrition and not crowd-pleasing defiance. It may not be enough to prevent a heavy sentence, but it certainly will not provoke the tribunal into wanting to make a lesson of him.
Any lawyer defending a case in the public eye is aware that the defendant’s supporters will often want a more robust and confrontational approach to the case. This pressure should be disregarded: the priority is always the client’s interests. The media or political context of a case should not, of course, be ignored – and there are benefits to having external support – but the most important goal must be to get the optimal outcome for the defendant.
By concentrating on defeating the more serious charges, and by this show of contrition, it would seem that Manning now has the best possible chance of the lowest sentence available in the circumstances. And if this is so, then it is the lawyers which should be thanked for that.
It is easy to be an “armchair defendant” – but it is less easy to be a real one sitting in a court room, or in a prison cell.
According to news reports, it was a breach of confidence by a lawyer which led to JK Rowling being identified as the real author of a thriller by “Robert Galbraith”. She is also reported to not be happy about this.
Assuming those reports are correct (and I will not mention the law firm or the lawyer in case they reports are not correct) then it raises an interesting legal question.
What would Rowling’s legal remedy be for such a breach?
In this instance, the breach has not obviously resulted in Rowling suffering any loss or damage. Indeed, sales of the book have increased substantially and so she has profited from the unauthorised disclosure.
Usually in English law, one cannot sue unless any loss or damage has been caused by the wrongful act.
There are exceptions: an injunction can sometimes be obtained to prevent a threatened breach or to prevent further breaches – but in this area the law does not act in vain. A court will not (or should not) grant an ineffectual injunction.
(Strictly speaking, confidentiality is “equity” and not “common law” and so a money remedy could also be available for an “account of profits” – the money which someone makes out of their wrongdoing. But this would not help Rowling either. The alleged wrongdoer here has not made any profit.)
So the English law of confidentiality is unlikely to offer Rowling a legal remedy for this seeming breach of a legal obligation. Indeed, when someone breaches a legal obligation to you, and causes you a profit, then in general the law of England hardly helps you at all.
There is no doubt that it the allegations are well-founded then there may be professional conduct point to be answered – and it is times like this that it is important that law is a regulated profession, for certain legal breaches do not have practical legal remedies.
All this said, Rowling has at her disposal other non-legal remedies.
She can take her business elsewhere.
And, given how she used her unpleasant experiences with the tabloid journalists to create “Rita Skeeter”, one can only wonder how she will portray her next lawyer…
(Addendum 19 July – some excellent comments below, and see also Richard Moorhead’s post “Harry Potter and the Breach of Confidentiality” for consideration of this from the regulatory perspective.)
(Second Addendum 19 July – Hugh Tomlinson QC’s comment below of 12:12 on 19 July appears to nail the issue – yes, the breach would be actionable.)
This is the latest in an occasional series of round-ups of interesting links on law and policy. It does not pretend to be comprehensive and it only reflects what interests me and what I have read. The box on the right-hand side has links to previous round-ups (or rounds-up).
Criminal legal aid
The daft and dangerous proposals of the Ministry of Justice for criminal legal aid continue to fall apart.
Today at 11am there will be the publication of a special report by the House of Commons Justice select committee . This follows the committee’s two recent oral evidence sessions – one with representatives of the professional and professional bodies and one with the Lord Chancellor.
This report is unexpected. There was no need to publish a report, as it is entirely open to the committee to just have evidence sessions without any follow-up. So that there is a report is significant. And, as the MPs’ questioning of the Lord Chancellor was both sceptical and well-informed, it may well be a report worth looking at carefully.
The equal marriage bill is now an Act of Parliament.
The parliamentary webpage for the legislation – here - shows the progress of the bill. Yesterday it received royal assent (though not in person – no monarch has personally given assent to a bill of the UK parliament since Queen Victoria – and it is done on the Queen’s behalf).
However, the Act is not quite yet the law of the land. Other than an immediate obligation on the Secretary of State to review civil partnerships, the Act will take effect at a date selected by the government. This is not an unusual provision, as there often needs to be preparatory administrative work and so on before a new law can take effect.
That said, some Acts are never brought into effect. The Easter Act 1928 has never been commenced, and leading family law barrister and blogger Lucy Reed tells me much of the Family Act 1996 has also not been commenced.