Wednesday, 30 October 2013

Journalism as Terrorism?

David Miranda's detention at Heathrow Airport in August kicked off a storm of commentary as to whether this was an unlawful use of the powers available under Schedule 7 of the Terrorism Act 2000.  We came a step closer today to a High Court decision as to whether it was or not, with a number of applications by Miranda's legal team being heard (and rejected), and a full hearing scheduled to go ahead next week.

At the time I was very strongly of the opinion that the use of Schedule 7 powers, which grant officers the power to question and search anyone at a port of entry to the United Kingdom without reasonable suspicion, to detain and search Miranda was unlawful.  The (limited) disclosure of documents obtained today by Miranda's has done nothing to dissuade me of that opinion.

(As a side note, it may be of interest to my American friends that the case of David House demonstrates that the Department of Homeland Security asserts the same right to search at the US border.  What is interesting is that while in the US the Customs and Border Patrol (CBP) simply asserted that they had the inherent right to seize and search electronic devices under the 'Fourth Amendment Border Exception'.  In the UK the British government had to resort to the use of anti-terrorism legislation to achieve the same effect.)

Paragraph 2 of Schedule 7 is quite clear that the purpose of the powers granted is "for the purpose of determining whether he appears to be a person" who "is or has been concerned in the commission, preparation or instigation of acts of terrorism."  We learned today thanks to Alex Pritchard-Jones's live-blogging that the officers at Heathrow detained him after a request that the 'Port Circulation Sheet' informed Heathrow that (paraphrased for tweets) "Intelligence indicates that Miranda involved in espionage activity that has potential to be a threat to the UK. We ask that consider exercising powers to detain to assess risk posed."

The problem with this is that for the use of the powers to be lawful the threat posed has to be a terrorist one, and terrorism is defined in the Act as:

1 Terrorism: interpretation.

(1)In this Act “terrorism” means the use or threat of action where

(a)the action falls within subsection (2),

(b)the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and

(c)the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause.

(2)Action falls within this subsection if it—

(a)involves serious violence against a person,

(b)involves serious damage to property,

(c)endangers a person’s life, other than that of the person committing the action,

(d)creates a serious risk to the health or safety of the public or a section of the public, or

(e)is designed seriously to interfere with or seriously to disrupt an electronic system.

 The key question for the examining officers then, even if taken at face value, was whether Miranda's "espionage activity" that had the "potential to be a threat to the UK" enough to make him appear to be concerned in the instigation, preparation or commission of acts of terrorism.

The problem for the government is that espionage activity that has the potential to be a threat to the UK, even if (for the sake of argument) we assume that it "creates a serious risk to the health or safety of the public", is still not sufficient to fall under the definition of terrorism.  The action (or threat of it) has to be "designed to influence the government... for the purpose of advancing a political, religious, racial or ideological cause."

It is clear that the Met and security services knew who Miranda was.  It would appear that the Met's idea was to pass on partial information, effectively requesting Heathrow officers detain him and search his electronic devices in order to make their own determination, because the Met themselves would not have the power to do so because they actually knew he was not involved in terrorist activity.

At least that is what I hope was the case, for the alternative is a lot more worrying. The alternative is a genuinely held belief that journalism that exposes the extent of the US and UK government's domestic spying is designed to influence the government for the purposes of advancing a political or ideological cause: journalism as terrorism.

At the time, the Home Office issued a statement saying "If the police believe that an individual is in possession of highly sensitive stolen information that would help terrorism, then they should act and the law provides them with a framework to do that."  But as I have pointed out, being in possession of such information is not enough to permit a nine hour detention (the maximum allowed) under Schedule 7.  It's not as if there is not legislation specifically designed to deal with the circumstances mentioned by Theresa May's spokesman.

S.58(2) of the Terrorism Act 2000 contains the offence of being in possession of a document containing information likely to be of use to terrorists.  The problem for the government here was that there is a specific defence available to someone charged with this offence of having "a reasonable excuse" for the possession of the documents.  Responsible journalism is, the government knew, a reasonable excuse.

The government would at least have had strong grounds for questioning under s.1 of the 1911 Official Secrets Act:

(1)If any person for any purpose prejudicial to the safety or interests of the State:

(c)obtains, collects, records, or publishes, or communicates to any other person any secret official code word, or pass word, or any sketch, plan, model, article, or note, or other document or information which is calculated to be or might be or is intended to be directly or indirectly useful to an enemy he shall be guilty of felony.

Once again, though, the government ran the risk of a legal determination against them that journalists sharing (not publishing) information that might be indirectly useful to an enemy, when balanced against the need for a free press, did not meet the criteria set out above.

All this gets to the fundamental point: the government had no interest in charging Miranda with anything.  What they wanted was to confiscate his electronic devices in order to access the information from Edward Snowden that was contained on them, and presumably destroy them (as they forced The Guardian to do).  Under Schedule 7 they were able to threaten Miranda that any refusal to answer their questions would be punishable as a crime.

Any arrest under the Official Secrets Act would have granted Miranda the normal rights possessed by anyone under arrest, and would have led to immediate legal arguments as to whether or not the material in his possession was 'journalistic material' for the purposes of the Police and Criminal Evidence Act, potentially forcing the police to have to apply to a judge for an order, which they may not have got (though I think probably would have), for its disclosure.  Miranda would have retained the right to remain silent under questioning, and to have legal representation present.  All this would possibly have resulted in the detention of David Miranda for a considerably longer period of time, and lengthy legal arguments about access to the information contained in the documents on his electronic devices.

The government tried to circumvent these legislative safeguards by invoking Schedule 7 as the easiest means to get possession of the documents.  Their grounds for wanting to do so may well be well-founded: not knowing what is in the documents I cannot say.  However, improperly invoking anti-terrorism legislation as a means of taking an end run around the judicial safeguards that the law has put in place to protect people was to my mind clearly an improper and unlawful way to go about it.

Aside from improper purpose, the other three grounds for judicial review advanced by Miranda's lawyers were proportionality, ECHR compatibility, and the fact he was only in transit.  Matthew Ryder QC sensibly chose not to advance the last of these (the Act specifically allows officers to question people onboard an aircraft at a UK airport; it would be an absurdity if it was interpreted to mean they couldn't then question them once they had stepped off it into the terminal).

I am not convinced the ECHR arguments will get far either, but proportionality would certainly appear to have some legs: Miranda was detained for five minutes shy of the nine hour maximum.  Even assuming at the outset that Heathrow did not have access to the intelligence, it certainly appears unlikely that it took them a full nine hours to reach their determination that he did not appear to be involved in terrorism.  Nonetheless it is my feeling that if the improper purpose is not taken, then all the other grounds will fall away also.

It is, of course, frustrating for the government to have to go through all these annoying legal hurdles, and the temptation to go around them must be strong.  But that is precisely why they are there: to protect citizens from unwarranted interference and intrusion as they go about their lives.  When the government feels it can get around such protections, or appears to consider journalism as a form of terrorism, it means we need more of them, not fewer.

UPDATE: Alex Pritchard-Jones has written a fuller account of the hearing for Karl Gardner's excellent Head of Legal blog.

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