Victory for press freedom as appeal court rules Schedule 7 incompatible with Article 10 of Human Rights Act

19 January 2016

The power to stop, search, detain, question and seize documents from anyone travelling through a UK airport under Schedule 7 of the Terrorism Act 2000 is incompatible with Article 10 of the Human Rights Act, the Court of Appeal has ruled today.

In a landmark judgment regarding David Miranda’s 2013 detention at Heathrow Airport, the Court found that the controversial power is not subject to adequate safeguards to stop it being used arbitrarily against journalists – an argument put forward by Liberty in its intervention in this case.

Rosie Brighouse, Legal Officer for Liberty, said: “This judgment is a major victory for the free press. Schedule 7 has been a blot on our legal landscape for years – breathtakingly broad and intrusive, ripe for discrimination, routinely misused. Its repeal is long overdue.

“It is also a timely reminder of how crucial the Human Rights Act is for protecting journalists’ rights. Once again it has come to the rescue of press freedom in the face of arbitrary abuse of power by the State.”

Background

David Miranda was detained for nine hours by police at Heathrow Airport in August 2013. He was questioned under Schedule 7 and freed only when officers reached the legal time limit for either arresting or releasing him. 

His electronic equipment – which included a hard drive carrying encrypted journalistic material derived from Edward Snowden – was confiscated, and he was questioned for long periods without a lawyer present.

Miranda was helping the work of his partner, journalist Glenn Greenwald, who had recently written several stories about the Snowden surveillance revelations for The Guardian. When detained, he was on the way back to Rio de Janeiro after meeting filmmaker Laura Poitras – director of Oscar-winning documentary Citizenfour – in Berlin.

Today’s judgment

In its intervention, Liberty argued that Schedule 7 is unlawful because it is not subject to sufficient legal safeguards to prevent it from being used arbitrarily against journalists and in such a way that it interferes unjustifiably with the fundamental right to freedom of expression.

In his judgment (with which Lord Justice Richards and Lord Justice Floyd agreed), Lord Dyson states that:

  • "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." (Paragraph 113)
  • "In disagreement with the Divisional Court, I would declare that the stop power conferred by para 2(1) of Schedule 7 is incompatible with article 10 of the Convention in relation to journalistic material in that it is not subject to adequate safeguards against its arbitrary exercise and I would, therefore, allow the appeal in relation to that issue. It will be for Parliament to provide such protection." (Paragraph 119)
  • "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." (Paragraph 119)

Liberty has long argued that Schedule 7 is an overbroad and intrusive power. It can be exercised without the need for any grounds for suspecting the person stopped has any involvement in terrorism, or any other criminal activity and contains no protection for journalists or their sources. 

The Court does not have the power, under the Human Rights Act, to change the Schedule 7 power. Instead, it has issued a declaration of incompatibility, which leaves it to Parliament to decide how to change the law so that it is compatible with Article 10.

Contact: Liberty Press Office on 020 7378 3656 or 07973 831128

Notes to editors:

Under Schedule 7 of the Terrorism Act 2000:

  • Officers – police, immigration or customs – can detain an individual and question them for up to six hours.
  • They may search the individual, or any of their belongings, and may retain those belongings for as long as they may be needed as evidence.
  • It is a criminal offence if the person detained fails to answer questions, or obstructs the exercise of the functions under the Act.

Liberty is raising similar concerns regarding the lack of proper safeguards for journalists in the Draft Investigatory Powers Bill, currently before Parliament: 

  • The Draft Bill legislates for indiscriminate mass surveillance against the whole population which will include the collection of confidential journalistic material.
  • It also provides broad powers for the State to intercept and hack individuals’ communications. 
  • Targeted and ‘thematic’ warrants, interception and hacking warrants can be issued by the Secretary of State (and by chief constables in respect of hacking) subject only to a weak review process undertaken by a Judicial Commissioner. 
  • The Draft Bill allows access to journalists’ communications data to be self-authorised by a large number of public bodies, again subject only to a weak model of judicial confirmation. 

Liberty is calling for judicial warrants for all surveillance applications. We are also calling for additional safeguards so that warrants are only issued in respect of surveillance that targets confidential journalistic material where: 
a)    there are reasonable grounds for believing an indictable offence has been committed; 
b)    surveillance is likely to yield material of substantial value; and, other methods of obtaining the material have been tried or are bound to fail; and 
c)    a judge is convinced that it is in the public interest to grant access to the application.