The UK Court of Appeal has dismissed a case brought by the partner of journalist Glenn Greenwald against his detention at Heathrow Airport – while stating that a key part of Britain's Terrorism Act breaches European human rights law.
David Miranda, who was carrying encrypted documents on behalf of Greenwald to Rio de Janeiro, was stopped and detained by the Metropolitan Police at Heathrow on 18 August 2013.
He was questioned and items in his possession were taken from him, including the encrypted material. That had been derived from data stolen by whistleblower Edward Snowden from the US National Security Agency.
Miranda claimed that the police acted unlawfully because the stop power was exercised for a purpose not permitted by the law, and that its use was in breach of the European Convention on Human Rights.
In his ruling, Lord Dyson – Master of the Rolls and Britain's third most senior judge – rejected Miranda’s argument that the use of the stop power against him was an unjustified and disproportionate interference with his right to freedom of expression, despite the fact that this was a case involving an interference with press freedom.
“I would hold that the exercise of the Schedule 7 stop power in relation to Mr Miranda on 18 August 2013 was lawful, although my reasoning differs in one important respect from that of the Divisional Court. I have reached this conclusion despite my disagreement with the Divisional Court as to the meaning of 'terrorism' in section 1 of [the Terrorism Act 2000]. I would, therefore, dismiss the appeal in so far as it relates to the exercise of the stop power in this case.”
Lord Dyson also ruled that paragraph 2(1) of Schedule 7 of the Terrorism Act 2000, under which Miranda was held, is incompatible with the European Convention on Human Rights (ECHR). In his judgment (PDF), he wrote: "The court therefore grants a certificate of incompatibility. It will be a matter for Parliament to decide how to provide such a safeguard. 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."
Lord Dyson also said that the publication of material can amount to an act of terrorism, as defined by the Terrorism Act, if the publication endangers life and the person publishing the material intends it to (or is reckless as to whether it does) have that effect. ®