Monday, 18 November 2013

The Accidental Terrorist

So, it's all over bar the shouting in the David Miranda judicial review, heard in front of Lord Justice Laws (whose name I don't think I will ever stop finding amusing.  Once when I was meant to be revising for the GDL I spent longer than I care to admit searching to see if I could find a case that had been heard by (the then) Mr. Justice Laws and Mr. Justice Judge. I succeeded. What does that say about me?), Mr. Justice Ouseley and Mr. Justice Openshaw.

Carl Gardiner did a tremendous job on Twitter and subsequently on his blog live-tweeting and analysing both days' proceedings in court.  As former Court of Appeal judge Sir Henry Brooke noted

Predicting the outcome of a case on the basis of the judges' reactions and questions is always a risky business, and almost certainly a foolhardy one if done on the basis of tweets.  So I will restrict myself to some observations and impressions.  (Ignore the timestamps: it's Washington DC time [GMT-5]).

To my mind, this exchange at the start of the first day was in many respects the most consequential of all, and the issue upon which Miranda has the most chance of success.  To put it bluntly, can someone inadvertently satisfy the definition of being concerned in terrorism, as defined in s.1 of the Terrorism Act 2000? (Click to zoom)

The key elements in this (in the Miranda context) are:

1) Creating a serious risk to the health or safety of the public or a section of the public;
2) That is designed to influence the government;
3) For the purpose of advancing a political or ideological cause.

The point that Matthew Ryder QC tried to push was that there had to be intent on the part of the person to create that risk:

though this was a line that Laws LJ did not seem particularly impressed by.

Matthew Ryder then attempted to argue that the risk created had to be a direct one, a point that was even less enthusiastically greeted than the previous:

It seems pretty clear to me from all this that the Court will not find any intent necessary when examining the meaning of what can constitute a 'terrorist action'.  Moreover, looking at s.1 again, particularly comparing s.1(2)(d) and s.1(2)(e), this would appear to be the interpretation Parliament intended: the action in (e) must be designed to interfere with an electronic system, whereas in (d) there is no such requirement that the action in question be designed to create a serious risk to the public.  Therefore, being in mere possession of the documents, because of the risk that someone ill-intentioned might take them from you (as Carl Gardiner put it) can amount to terrorism.  This is, indeed, as CG noted, a breathtaking submission, that hightlights the extraordinarily widely drawn definition of terrorism that is contained in the 2000 Act.  Nonetheless, it received support from the judges in response to Jason Beer QC's submissions:

There are numerous examples of activities that could amount to a terrorist action if this were the definition applied.  As I noted previously, a lot of American politicians who have been encouraging citizens to forego Obamacare, or to shut down the government to defund Obamacare, are engaged in terrorist actions in the eyes of British law.

Matthew Ryder raised the example of a newspaper revealing a government plan to put cameras in every home, but he needn't have gone that far: anti-CCTV campaigners would have sufficed.  Such a campaign is under this definition terrorist activity.  Similarly so could those who campaigned against the introduction of ID cards have been concerned with terrorism.  In fact, any form of political campaign against the 'security state' would probably fall foul of this definition.  Benjamin Franklin's statement that "They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety" on the face of it appears to be an encouragement of terrorist actions.

This is certainly troubling, to say the least, and undoubtedly Laws LJ and the other judges are aware of its implications.  It is for that reason that a point raised by Laws LJ on his own initiative in the middle of the exchange above caught my eye:

I do wonder whether Article 10, the right to free expression, offers the court a way out of accepting the extraordinarily broad definition that the alternative suggests.

The right to argue for liberty over security must surely be protected by Article 10, even if such a course were to create a serious risk to the public (this argument presupposes that Miranda or the examples given are acting in pursuit of a political or ideological cause).  The counter-argument is that merely arguing for such a course does not in itself create a risk to the public, but then again neither does merely being in possession of documents: under both circumstances the 'risk' is directly created at some point further down the line as a consequence of the action in question.  And if a campaigning member of the public's Article 10 rights insulate them from being concerned in terrorist actions, then so too must a journalist's under equivalent circumstances.

Matthew Ryder's submission that the risk had to be real was one that was returned to on the second day, and ran into a sort of a chicken-and-egg argument that was connected with one of the other key submissions on the purpose of the stop:

Matthew Ryder was essentially arguing againt an earlier submission from Jason Beer, that part of the function of Schedule 7 is to allow an inquiry as to whether terrorism has occurred and whether the person stopped is concerned in it.  The argument is, of course, circular.

but that is how the legislation is framed.

I suspect the out come of all this will be a judgment that holds that the 'objective purpose' (a point Laws LJ emphasized) was that contained in the Port Circulation Sheet:
We therefore wish to establish the nature of Miranda's activity, assess the risk that Miranda poses to national security and mitigate as appropriate.
As a consequence, I believe that the Court will accept Jason Beer's point that Schedule 7 gives police the power to inquire whether terrorism has occurred, as well as whether someone appears to be concerned in terrorism.  Although I said I wouldn't try to predict the outcome, I think we may get a bit of a fudge in the judgment.  My hunch is that they will conclude that his journalistic activities do afford him Article 10 protections with regard to his actions falling within the definition of terrorism, but the ultimate cause of his lengthy detention was the fact that the information he was carrying was encrypted: had it been unencrypted the police could have perhaps earlier reached a determination that he was not concerned in terrorism.  None of the relief applied for will be granted, and it will be appealed.

If others agree or disagree, I'd be happy to hear from them in the Comments section.

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