UK Appeals Court Says UK Terrorism Act's Detention Clause Violates Press Freedoms

from the good-to-see dept

As you may recall, back in 2013, soon after the Snowden revelations, the UK detained David Miranda at Heathrow Airport and took a bunch of his electronics, as he was flying through (from Germany on his way back home to Brazil). Miranda is Glenn Greenwald’s partner, and the claim by the UK was that in Berlin he had picked up copies of Snowden documents. The UK claimed that the detention was okay under Schedule 7 of the Terrorism Act, which allows for detaining terrorists, not journalists. But the UK said that it was okay, because it classified publishing Snowden documents as an act of terrorism.

Miranda sued in the UK, arguing that his rights were violated. Almost two years ago, a court ruled that the detention was lawful. Miranda appealed, and in an important ruling this morning, the appeals court said that, while Miranda’s detention may have been lawful, Schedule 7 is incompatible with human rights, with regards to protecting journalists, and could be subject to abuse (even if it says that Miranda’s detention wasn’t necessarily abusive). The court more or less ruled that the authorities acted within reason, given the existing law, but a specific part of the law, regarding how it handles journalists, was a problem with regards to the guarantees for a free press.

Reading through the full 36-page ruling is worthwhile. The ruling is a victory for those concerned about abuses against journalists under the Terrorism Act — but only a fairly narrow one. For example, the court does note that publication can “amount to an act of terrorism” if the publication “endangers a person’s life” and the person publishing “intends it to have that effect.” I can understand why someone might make that argument, but it still seems troubling to argue that any form of expression alone is an “act of terrorism.”

Where the court disagrees with the government’s claims, is in noting that Schedule 7 conflicts with Article 10 of the European Convention on Human Rights, which guarantees freedom of expression (not nearly as broadly as the US’s First Amendment, but at least somewhat), because it could be read to force journalists to give up sources, potentially harming a free and open press:

The central concern is that disclosure of journalistic material (whether or not it involves the identification of a journalist?s source) undermines the confidentiality that is inherent in such material and which is necessary to avoid the chilling effect of disclosure and to protect article 10 rights. If journalists and their sources can have no expectation of confidentiality, they may decide against providing information on sensitive matters of public interest. That is why the confidentiality of such information is so important. It is, therefore, of little or no relevance that the Schedule 7 powers may only be exercised in a confined geographical area or that a person may not be detained for longer than nine hours. I accept that the fact that the powers must be exercised rationally, proportionately and in good faith provides a degree of protection. But the only safeguard against the powers not being so exercised is the possibility of judicial review proceedings. In my view, the possibility of such proceedings provides little protection against the damage that is done if journalistic material is disclosed and used in circumstances where this should not happen. An important rationale for the principle of legal certainty that underpins the concept of ?prescribed by law? is that there should be adequate safeguards against arbitrary decision-making. Unlike the position in relation to article 5 and 8, the possibility of judicial review proceedings to challenge the rationality, proportionality and good faith of a decision to interfere with freedom of expression in cases involving journalistic material cases does not afford an adequate safeguard.

Given that, the court rules that Schedule 7 is currently “incompatible” with article 10, and thus the UK Parliament needs to change the law to fix that problem. The court does point out that there may be some easy fixes:

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.

So it appears that the UK could fix this deficiency pretty easily — but in a way that would better protect journalists. I recognize that there are a number of statements and press releases that are excited about this ruling, but it does appear to be a bit of an overstatement. Yes, finding problems with Schedule 7, especially as it relates to journalists, is a big deal. But the concerns seem to be pretty narrowly focused, and open to a rather quick fix by the UK Parliament. A stronger ruling would have been better, but at least the court recognized some problems with the current setup of the law with respect to press freedoms.

As for what happens next? The UK could challenge the ruling at a higher level. Or it could change the law, as suggested by the court. Or it could ignore the ruling, which would lead to a European challenge. So this isn’t necessarily over yet….

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Comments on “UK Appeals Court Says UK Terrorism Act's Detention Clause Violates Press Freedoms”

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Anonymous Coward says:

good result, in more ways than one and for more people than just journalists as well. however, anyone who thinks the UK government, particularly the security forces like GCHQ and MI5/6 under the leadership of Theresa May, will take any notice of this ruling are in cuckoo land!! she openly stated the other day that ‘the UK doesn’t do bulk surveillance’. what a complete load of lies! it was proven what the UK was up to from the Snowden leaks! it was as guilty if not more so than the NSA!!

Anonymous Coward says:

Re: Re: None of this means nothing

The UK is an island so if they stop the boats, stop the planes & stop the trains then it becomes a prison.

Just be sure to let the prisoners know that they can try to swim to freedom but the sharks will get you in those warmer waters. Heck that excuse worked in the penal colony of Pt. Arthur way down in Tasmania in the 1800’s for the British jailers.

Anonymous Coward says:

Re: Re: None of this means nothing

The populace is responsible for and deserve punishment for the transgressions of their leaders… this bullshit needs to stop. The perpetrator is responsible for their own deeds, and not anyone else. If the justice system has been corrupted and therefore fails, lets put everyone in jail – what novel idea and it really would work too! – Wow.

tqk (profile) says:


For example, the court does note that publication can “amount to an act of terrorism” if the publication “endangers a person’s life” and the person publishing “intends it to have that effect.” I can understand why someone might make that argument, but it still seems troubling to argue that any form of expression alone is an “act of terrorism.”

Anyone who was over ten years old on 9/11 can understand why someone might make that argument. It serves their purpose in grandstanding and accumulation of power over others. When explaining how to use an IM app can get you banged up for material support of ISIS, anything’s now possible. If it was up to politicians and LEOs, spitting on the sidewalk would be terrorism. Singapore will throw you in jail for it.

When the bar’s been lowered so far that respectable, professional journalists are accused of terrorism for possessing information, the word’s essentially worthless except as a legal bludgeon. It disgusts me that they’re getting away with this crap. The judge should’ve laughed the gov’t out of court and awarded Miranda treble damages for wasting his time for no valid reason beyond getting their knickers in a knot.

Whatever (profile) says:

Hello? Is this on?

You realize of course that the UK has ALREADY fixed this quite a while ago, instituting a hands off policy in regards to journalist’s materials. They don’t have to do anything to far exceed the EU rules and to satisfy the courts concern. This case is old at this point, the issues already have been resolved.

What was more important in this ruling was that, even as the court found the UK didn’t entirely comply with the EU rulings, it was within the balance between journalists rights and security / public / government interest. The court gave them a full pass without any issue, the search and detainment was considered legal and pretty much it drops there. It’s very unlikely that the UK government will push this any further, their rules already are beyond what the court suggests and they have won – Miranda’s complaint is thrown out and everything that has happened is considered legal and acceptable.

If anything, it would Miranda’s lawyers to launch an appeal.

Wyrm (profile) says:

Well, I have two problems with this ruling.

– first is how we are still not equal. In this case, journalists have a privileged “freedom of speech” that most people can’t pretend to.

– but most importantly, it’s once again a case of the law enforcement playing Humpty Dumpty: “When I use a word, it means just what I choose it to mean — neither more nor less.” You don’t need to kill or even threaten people. Now an acceptable definition of terrorism in UK is “you know a guy who knows a guy who knows something.” (With the vague excuse that this “something” might put an undefined “someone” in danger.)

When people in power stop changing the meaning of the Law, maybe people will respect it – and them – a little more.

Wendy Cockcroft says:

Re: Re:

Be fair, there’s no knowing that the citizen is on his or her way to Syria until they announce it on social media, etc.

Gateway destinations include Turkey, so what do you do — mess with their tourist industry? Are you really going to tell border control, “I’m off to join ISIS in Syria, toodle-oo!”? There’s no way of knowing till the deed is done.

tqk (profile) says:

Re: Re: Re:

Gateway destinations include Turkey, so what do you do — mess with their tourist industry?

It sure is convenient for ISIS that Turkey can’t wait for Assad’s regime to fail (I used to feel the same way). Except, they’re not waiting. Turkey is full on “material support of ISIS”, as are Israel and the Saudis, both ostensibly allies of The West! Yet foreigners still get banged up for supporting ISIS? Er, …

WTF is going on!?! All this !@#$ just to pee off Shia Iran?!? Madness. I hate this century, or what some are doing with it.

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