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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Miranda, R (on the application of) v Secretary of State for the Home Department & Ors  EWCA Civ 6 (19 January 2016)
Cite as:  WLR(D) 22,  1 Cr App R 26,  EMLR 11,  WLR 1505,  EWCA Civ 6,  HRLR 6,  1 WLR 1505
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ON APPEAL FROM THE HIGH COURT
QUEENS BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RICHARDS
LORD JUSTICE FLOYD
| REGINA (DAVID MIRANDA)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
COMMISSIONER OF POLICE OF THE METROPOLIS
ARTICLE 19, ENGLISH PEN AND THE MEDIA LEGAL DEFENCE INITIATIVE
Steven Kovats QC and Julian Blake (instructed by the Government Legal Department) for the First Respondent
Jason Beer QC, Ben Brandon and Ben Watson (instructed by the Directorate of Legal Services, Metropolitan Police) for the Second Respondent
Alex Bailin QC and Ben Silverstone for the First Intervener (intervening by written submissions only)
Can Yeginsu and Anthony Jones for the Second Intervener (intervening by written submissions only)
Hearing dates : 08 & 09/12/2015
Crown Copyright ©
Master of the Rolls:
"1. This case arises from the detention of the claimant by officers of the Metropolitan Police at Heathrow Airport on 18 August 2013, purportedly under paragraph 2(1) of Schedule 7 to the Terrorism Act 2000. He was questioned and items in his possession, notably encrypted storage devices, were taken from him. He says that all this was done without any legal authority.
2. The claim raises three questions. The first is whether, on the facts of the case, the power conferred by para 2(1) of Schedule 7 to the Terrorism Act 2000 to stop and question a person at a port or border area for the purpose of determining whether he appears to be "concerned in the commission, preparation or instigation of acts of terrorism" allowed the police to stop Mr Miranda on 18 August. The second is whether, if it did, the use of the power was nevertheless disproportionate to any legitimate aim. The third is whether upon its true construction the para 2(1) power is repugnant to the right of freedom of expression guaranteed by Article 10 of the European Convention on Human Rights and Fundamental Freedoms ("the Convention").
THE TERRORISM ACT 2000 ("TACT")
"(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."
"(1) In this Part 'terrorist' means a person who—
(b) is or has been concerned in the commission, preparation or instigation of acts of terrorism."
In this Schedule 'examining officer' means any of the following—(a) a constable...
(1) An examining officer may question a person to whom this paragraph applies for the purpose of determining whether he appears to be a person falling within section 40(1)(b).(2) This paragraph applies to a person if—(a) he is at a port or in the border area, and(b) the examining officer believes that the person's presence at the port or in the area is connected with his entering or leaving Great Britain or Northern Ireland……….(4) An examining officer may exercise his powers under this paragraph whether or not he has grounds for suspecting that a person falls within section 40(1)(b).
A person who is questioned under paragraph 2... must—(a) give the examining officer any information in his possession which the officer requests;(b) give the examining officer on request either a valid passport which includes a photograph or another document which establishes his identity;(c) declare whether he has with him documents of a kind specified by the examining officer;(d) give the examining officer on request any document which he has with him and which is of a kind specified by the officer.
(1) For the purposes of exercising a power under paragraph 2 or 3 an examining officer may-
(a) stop a person or vehicle;
(b) detain a person.
(4) A person detained under this paragraph shall …..be released not later than the end of the period of nine hours beginning when his examination begins"
"2... We strongly assess that MIRANDA is carrying items which will assist in GREENWALD releasing more of the NSA and GCHQ material we judge to be in GREENWALD's possession. Open source research details the relationship between POITRAS, GREENWALD and SNOWDEN which corroborates our assessment as to the likelihood that GREENWALD has access to the protectively marked material SNOWDEN possesses. Our main objectives against David MIRANDA are to understand the nature of any material he is carrying, mitigate the risks to national security that this material poses...
3. We are requesting that you exercise your powers to carry out a ports stop against David MIRANDA...
4. We judge that a ports stop of David MIRANDA is the only way of mitigating the risks posed by David MIRANDA to UK national security... Additionally there is a substantial risk that David MIRANDA holds material which would be severely damaging to UK national security interests. SNOWDEN holds a large volume of GCHQ material which, if released, would have serious consequences for GCHQ's collection capabilities, as well as broader SIA operational activities, going forwards..."
"It appeared from the national security justification that Edward SNOWDEN held a large amount of information the disclosure of which could be highly damaging to UK national interests. This reinforced my view that the value of the material that Mr MIRANDA might be carrying to a hostile state engaged in terrorist activity or a terrorist organisation was enormous and its disclosure to agents of a hostile state or a terrorist organisation elsewhere would be catastrophic. In the circumstances, I considered that Schedule 7 paragraph 8 in particular, permitted us to search him to ascertain whether he had the material in his possession to assist in the determination of whether or not he was a person concerned in the commission, preparation or instigation of acts of terrorism."
"Intelligence indicates that MIRANDA is likely to be involved in espionage activity which has the potential to act against the interests of UK national security. We therefore wish to establish the nature of MIRANDA's activity, assess the risk that MIRANDA poses to UK national security and mitigate as appropriate. We are requesting that you exercise your powers to carry out a ports stop against MIRANDA."
"We assess that MIRANDA is knowingly carrying material, the release of which would endanger people's lives. Additionally the disclosure, or threat of disclosure, is designed to influence a government, and is made for the purpose of promoting a political or ideological cause. This therefore falls within the definition of terrorism and as such we request that the subject is examined under Schedule 7."
"With regard to the PCS forms, if I had not been satisfied that the MPS would be acting lawfully in undertaking Schedule 7 stop based on the information received, I would not have agreed to the examination. PCS forms are used to pass on information to police where there is concern about a risk from terrorism, and as I have mentioned earlier in this witness statement, in this case the PCS was completed by the Security Service. Where appropriate the MPS then acts in compliance with the police's duty to protect the public. The power remains a police power and the police have to be satisfied that it is an appropriate and lawful use of the power. Once we receive sufficient assurances from appropriate agencies that the purpose of the examination is to assist in making a determination about whether the person appears to be someone who is or has been concerned in the commission, preparation or instigation of acts of terrorism, there is an expectation that CT police officers will use all available powers in support of the UK's CT effort where it is appropriate to do so."
SUMMARY OF THE JUDGMENT OF THE DIVISIONAL COURT
THE GROUNDS OF APPEAL
THE FIRST AND SECOND GROUNDS OF APPEAL
What was the purpose of the stop?
"21. [I]n deciding whether the statutory purpose is made out I do not think the court is limited to a consideration of the examining officers' subjective state of mind. Given the context – the possible apprehension of terrorism – Parliament must have enacted Schedule 7 in the knowledge that there might be very good reasons why the examining officers (who might, as here, be junior in rank) should not be privy to the whole story. This is of a piece with D/Supt Stokley's reference at paragraph 39 of his witness statement to "a firewall between the intelligence case and the examination, to prevent any unwitting disclosures to the subject of the examination". It is noteworthy that by force of paragraph 2(4) of Schedule 7 an examining officer is not required to have any "grounds for suspecting that a person falls within section 40(1)(b)". Nor does Schedule 7 provide that an examining officer must be the one to determine whether the subject appears to fall within that subsection. It may well be someone else, to whom the results of the stop are referred.
22. In a case like this the primary evidence for the determination of the stop's purpose is likely to be the terms of the instructions given to the examining officers: here, in effect, the last PCS. Making the modest assumption that the officers will have executed their instructions in good faith, that ought to provide the essential, even if not the whole, rationale for the decision to carry out the stop. But I readily acknowledge that the PCS taken on its own might not merit the court's full confidence as a reliable indicator of the purpose of the exercise. The PCS is, with good cause, the tip of what may be a very large iceberg. It may give – in the worst case deliberately, in the best case unwittingly – a false or at least a distorted picture of the true reasons for the stop. It is important that the court should have some evidence of the hierarchy of decision-making behind and above the PCS; and there may be cases where there is no PCS."
"Given these successive levels of authorisation, the purpose of the stop may in my judgment confidently be gleaned from the final PCS considered in light of the National Security Justification. DI Woodford acted directly on the former, and D/Supt Stokley's acquiescence was reinforced by the latter".
"The purpose of the stop thus disclosed may be simply expressed. It was to ascertain the nature of the material which the claimant was carrying and if on examination it proved to be as was feared, to neutralise the effects of its release (or further release) or dissemination."
Was the purpose improper?
"[I]n order to provide a reasonable but limited opportunity for the ascertainment of a possibility: the possibility that a traveller at a port may be involved ("concerned" – section 40(1)(b)), directly or indirectly, in any of a range of activities enumerated in section 1(2)."
"In all the circumstances, given the facts stated in the last PCS and the National Security Justification, I conclude that the purpose of the stop – to ascertain the nature of the material which the claimant was carrying and if on examination it proved to be as was feared, to neutralise the effects of its release (or further release) or dissemination – fell properly within Schedule 7 of the 2000 Act on the latter's true construction."
"It is fair to say that the majority of examinations which have led to convictions were intelligence-led rather than based simply on risk factors, intuition or the "copper's nose". Indeed, despite having made the necessary enquiries, I have not been able to identify from the police any case of a Schedule 7 examination leading directly to arrest followed by conviction in which the initial stop was not prompted by intelligence of some kind."
The meaning of terrorism in section 1 of TACT
"With great respect, the bare proposition that the definition of terrorism in section 1 is very wide or far reaching does not of itself instruct us very deeply in the proper use of Schedule 7. There are however particular aspects which seem to me to be important for the ascertainment of the reach of the Schedule. First, section 1 does not create a criminal offence. The Act creates a separate regime of criminal offences: section 54 ff. That being so, we should not assume that foundational concepts of the criminal law, such as intention and recklessness, are to be read into provisions such as section 1(2)(c) ("endangers a person's life") or 1(2)(d) ("creates a serious risk to the health or safety of the public"). Section 1(2) is concerned only to define the categories of "action" whose use or threat may constitute terrorism: not to impose any accompanying mental element. Similarly, the expression "concerned in" in section 40(1)(b) is not to be taken to import the criteria for guilt as a secondary party which the criminal law requires in a case of joint enterprise".
"the section 1 definition is 'capable of covering the publication or threatened publication [for the purpose of advancing a political, religious, racial or ideological cause] of stolen classified information which, if published, would reveal personal details of members of the armed forces or security and intelligence agencies, thereby endangering their lives, where that publication or threatened publication is designed to influence government policy on the activities of the security and intelligence agencies': section 1(1)(b) and (c), and (2)(c)."
"The Article 19 Interveners also submit (paragraph 39) that 'a reading of section 40(1)(b) which permits the type of activity carried out by [the claimant] to fall within the definition [set out in the subsection] is overbroad and inconsistent with well-recognised international principles that media reporting on terrorism ought not to be considered equivalent to assisting terrorists". They cite a number of materials, including a declaration of the Committee of Ministers of the Council of Europe adopted in 2005, calling upon Member States to "refrain from adopting measures equating media reporting on terrorism with support for terrorism". This mischaracterises the defendants' case. There is no suggestion that media reporting on terrorism ought per se to be considered equivalent to assisting terrorists. The construction advanced allows as I have said for the ascertainment of the possibility that a traveller at a port may be involved, directly or indirectly, in any of a range of activities enumerated in section 1(2) of the Act. Not least given the requirement that the power must be exercised upon some reasoned basis, proportionately and in good faith, I cannot conclude that any of the international materials relied on points towards a different construction."
"[I]t is what the action 'involves', or what its consequence 'creates' etc, and not merely the action itself, which must be used or threatened for political ends. Thus it would constitute terrorism to use or threaten serious violence or the creation of a serious risk to health and safety in order to influence the Government and to advance a political or religious cause. If, however, an individual was unaware that his actions created a serious risk to health and safety, those actions could not be said to be 'the use or threat' of such a risk for the purpose of advancing a political cause and influencing the Government."
CONCLUSION ON THE FIRST AND SECOND GROUNDS OF APPEAL
THE THIRD GROUND OF APPEAL: PROPORTIONALITY
"… [T]he question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to that objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community."
Is the balancing exercise to be conducted on the basis that the material was journalistic material?
"…the Court will pay attention to whether the police orders were based on a reasonable assessment of the facts and whether the applicant was able to report on the demonstration. It will also have regard to the applicant's conduct, including whether he identified himself as a journalist."
The assessment of the threat to national security
The judgment of the Divisional Court
"…..I can say with confidence that the material seized is highly likely to describe techniques that have been crucial in life-saving counter-terrorism operations, the prevention and detection of serious crime, and other intelligence activities vital to the security of the UK. The compromise of these methods would do serious damage to UK national security, and ultimately put lives at risk. Following the article jointly published by the Guardian, New York Times and ProPublica on 5 September, for example, the US Office of the Director of National Intelligence said on the following day that the article revealed 'specific and classified details about how we [ie, the US] conduct this critical activity', and that it provided a 'roadmap to our adversaries' about surveillance issues."
"It is known that contained in the seized material are [sic] personal information that would allow staff to be identified, including those deployed overseas."
"The material needs to be examined as a matter of urgency to identify the nature of the material stolen in order to enable the MPS to mitigate the risks posed by the theft, the unlawful possession and disclosure of this material. For example, should the identity of individuals working for HMG be revealed their lives and the lives of their families could be directly at risk. Similarly should details of ongoing/historic operations and/or methodology be revealed the operation itself could be rendered ineffective. This will consequently put the lives of the general public at risk as we would be less able to counter the threat from terrorism. If the MPS was able to identify what identities and information are contained within the material we would be able to mitigate the risk posed to those individuals, those operations and the general public at large by putting appropriate measures in place."
"I believed that the information in [the claimant's] possession could potentially compromise the UK's ability to monitor terrorist networks, posing a threat to the safety of the public... In particular, I considered that the release of information about PRISM technology into the public domain was of use to terrorists. My understanding of the technology from material in the public domain is that it enables security and intelligence services to monitor email traffic. Accordingly, I considered that if nothing was done to try to prevent further damaging disclosures which could directly benefit terrorists, the MPS and I personally would be failing in our obligation to prevent the loss of life, safeguard the public to [sic] prevent and detect crime. For all these reasons I considered that the use of a Schedule 7 stop was proportionate."
"51. It is absurd to suggest that because the material, if it ever fell into the hands of terrorists could in theory be used for terrorist purposes, then there is a justification for using counter-terrorist measures to take that material from responsible journalists publishing material through respected international media organisations (original emphasis).
52. Nowhere in their evidence do the defendants' witnesses positively indicate that any disclosure has actually threatened or endangered life or any specific operation. In my view, this is not surprising, given the care we took not to create such a risk."
"Thirdly, Mr Greenwald's account (paragraph 33) of the "many ingredients to the sensible reporting of very sensitive information" is insubstantial; or rather, mysterious – the reader is left in the dark as to how it is that "highly experienced journalists and legal experts" (paragraph 33(1)) or "[e]xperienced editors and reporters" (33(2)) are able to know what may and what may not be published without endangering life or security. There may no doubt be obvious cases, where the information on its face is a gift to the terrorist. But in other instances the journalist may not understand the intrinsic significance of material in his hands; more particularly, the consequences of revealing this or that fact will depend upon knowledge of the whole "jigsaw" (a term used in the course of argument) of disparate pieces of intelligence, to which the classes of persons referred to by Mr Greenwald will not have access. At paragraph 26 of his first statement Mr Robbins says this:
'Indeed it is impossible for a journalist alone to form a proper judgment about what disclosure of protectively marked intelligence does or does not damage national security... The fragmentary nature of intelligence means that even a seemingly innocuous piece of information can provide important clues to individuals involved in extremism or terrorism.'"
"In my judgment, however, Mr Ryder's broader argument on proportionality – that the use of Schedule 7 is in any event unjustified – does not in truth depend on the categorisation of the GCHQ documents as journalistic material. The heart of the point is that the claimant was assisting in the conduct of responsible journalism, and the law's duty to protect that activity means that interference with it by the summary and unsupervised process of Schedule 7 was disproportionate and unlawful whether or not any intercepted documents strictly fell within the statutory definition of "journalistic material": no "fair balance [was] struck between the rights of the individual and the interests of the community" – requirement (iv) in the restatement of the proportionality principle in Bank Mellat: though, as I have held (paragraph 45), where journalistic freedom is involved the balance is not between private right and public interest, but between two aspects of the public interest."
"But that is not an adequate safeguard for lives and security, because of the "jigsaw" quality of intelligence information, and because the journalist will have his own take or focus on what serves the public interest, for which he is not answerable to the public through Parliament".
Divisional Court's conclusion on proportionality
"72. How do these considerations bear on the present case? The claimant was not a journalist; the stolen GCHQ intelligence material he was carrying was not "journalistic material", or if it was, only in the weakest sense. But he was acting in support of Mr Greenwald's activities as a journalist. I accept that the Schedule 7 stop constituted an indirect interference with press freedom, though no such interference was asserted by the claimant at the time. In my judgment, however, it is shown by compelling evidence to have been justified. I have described the testimony of Mr Robbins and DS Goode (and DS Stokley). There is no reason to doubt any of it. In contrast, (1) the evidence of the claimant and Mr Greenwald is unhelpful, to the extent I have explained. (2) There is no question of a source being revealed; though I accept there is some force in the Article 19 Interveners' submission (paragraph 17) as to "the potential discouragement of future journalistic sources who may not elect to waive their anonymity". (3) The fact that the material was stolen, though it does not exclude the law's intervention to protect free speech, goes in the scales in favour of the defendants. "
73. In my judgment the Schedule 7 stop was a proportionate measure in the circumstances. Its objective was not only legitimate, but very pressing. The demands of journalistic free expression were qualified in the ways I have explained. In a press freedom case, the fourth requirement in the catalogue of proportionality involves as I have said the striking of a balance between two aspects of the public interest: press freedom itself on one hand, and on the other whatever is sought to justify the interference: here national security. On the facts of this case, the balance is plainly in favour of the latter."
Mr Ryder's arguments on proportionality
Conclusion on proportionality
"….the Secretary of State's view regarding the nature and extent of damage to national security which will flow from disclosure should be accepted unless there are cogent or solid reasons to reject it."
THE FOURTH GROUND OF APPEAL: SCHEDULE 5
"1(1) A constable may apply to a justice of the peace for the issue of a warrant under this paragraph for the purposes of a terrorist investigation.
(2) A warrant under this paragraph shall authorise any constable—
(a) to enter premises mentioned in sub-paragraph (2A) [whose details are not material],
(b) to search the premises and any person found there, and
(c) to seize and retain any relevant material which is found on a search under paragraph (b).
5(1) A constable may apply to a Circuit judge or a District Judge (Magistrates' Courts) for an order under this paragraph for the purposes of a terrorist investigation. "
(2) An application for an order shall relate to particular material, or material of a particular description, which consists of or includes excluded material or special procedure material.
(3) An order under this paragraph may require a specified person—
(a) to produce to a constable within a specified period for seizure and retention any material which he has in his possession, custody or power and to which the application relates...
(4) For the purposes of this paragraph—
(a) an order may specify a person only if he appears to the Circuit judge or the District Judge (Magistrates' Courts) to have in his possession, custody or power any of the material to which the application relates...
6(1) A Circuit judge or a District Judge (Magistrates' Courts) may grant an application under paragraph 5 if satisfied—
(a) that the material to which the application relates consists of or includes excluded material or special procedure material...
(c) that the conditions in sub-paragraphs (2) and (3) are satisfied in respect of that material.
(2) The first condition is that—
(a) the order is sought for the purposes of a terrorist investigation, and
(b) there are reasonable grounds for believing that the material is likely to be of substantial value, whether by itself or together with other material, to a terrorist investigation...
10(1) An order of a Circuit judge or a District Judge (Magistrates' Courts) under paragraph 5 shall have effect as if it were an order of the Crown Court...
13(1) A constable may apply to a Circuit judge or a District Judge (Magistrates' Courts) for an order under this paragraph requiring any person specified in the order to provide an explanation of any material—
(b) produced or made available to a constable under paragraph 5.
"61. This submission lacks all practicality. I will assume that the defendants (rather the second defendant: the application is made by "a constable" – paragraph 5(1)) could have got before a judge before the claimant left Heathrow for Brazil. But there are other insuperable difficulties. (1) Paragraph 5(4)(a) could not have been satisfied. The application must relate to "particular material, or material of a particular description, which consists of or includes excluded material or special procedure material" (paragraph 5(2)), and the order may only specify an individual if "he appears to the [judge] to have in his possession, custody or power any of the material to which the application relates" (5(4)(a)). But the police did not know what the claimant was carrying: neither the National Security Justification nor the final PCS contained particulars remotely sufficient for the Schedule 5 process. (2) Paragraph 6(1)(a) could not have been met. The police could not have satisfied the judge "that the material to which the application relates consists of or includes excluded material or special procedure material". (3) The claimant would not have been obliged to answer any questions about what he was carrying: the power in paragraph 13 to require an explanation only relates to material already produced or made available. (4) It appears that the only sanction for disobedience to any order that might be obtained would have been contempt proceedings after the event: paragraph 10 provides that a judge's order "under paragraph 5 shall have effect as if it were an order of the Crown Court". "
62. Given all these difficulties, an application under Schedule 5 would have been pointless and ineffective."
"I did not address my mind at the time to applying to a circuit judge for a Schedule 5 TACT production order as I considered that Schedule 7 represented the best and only method of achieving the dual objective of establishing what material Mr MIRANDA may have had in his possession and questioning him about it. I may have been able to obtain access to the material had I obtained a Schedule 5 order, but I would not have been able to ask Mr MIRANDA what his intentions were in relation to it unless I had arrested him and conducted a PACE interview under caution at a police station. Secondly, I believed that it was important to act as swiftly as possible, as Mr MIRANDA was only going to be in the UK in transit for a short period of time. A Schedule 5 production order process followed by an arrest and interview would have taken much longer, and would have inevitably resulted in a much greater interference in Mr MIRANDA's private life and would have seriously disrupted his travel arrangements."
THE FIFTH GROUND OF APPEAL: INCOMPATIBILITY WITH ARTICLE 10
"Mr Kovats submits that the Strasbourg court has not developed an absolute rule of prior judicial scrutiny for cases involving State interference with journalistic freedom. In my judgment that is right. Although the court's reasoning is sometimes expressed in very general terms (see in particular paragraphs 90 and 92 of Sanoma), in this area as in others its method and its practice is to concentrate on the facts of the particular case. And the Strasbourg court would itself acknowledge that the protections against excess of power by State agents, and the limitations which the law imposes on the power they enjoy, vary greatly from State to State: such differences illustrate the importance of the well known doctrine of the margin of appreciation. As I have indicated at paragraph 30 (sic), there are important constraints upon the use of the Schedule 7 power. The discipline of the proportionality principle is one of the foremost safeguards: its role in this case, I think, demonstrates as much. "
"At the same time there are important constraints on the use of the Schedule 7 power. First, although the examining officer need not have grounds for suspecting that the subject falls within section 40(1)(b), the general law of course requires that the power be exercised upon some reasoned basis, proportionately (as to which see paragraphs 39 – 46 below) and in good faith. Secondly, there is a limitation upon the meaning of terrorism given by reference to the mental or purposive elements prescribed by section 1(1)(b) ("designed to influence... or to intimidate...") and 1(1)(c) ("for the purpose of advancing a political, religious, racial or ideological cause"). Thirdly, the power may only be used where the subject is "at a port or in the border area" (Schedule 7 paragraph 2(2)(a)) intending (in the examining officer's belief) to enter or leave Great Britain or Northern Ireland (2(2)(b)). Fourthly, the examining officers' power of detention is limited to 9 hours (Schedule 7 paragraph 6). "
"The protection of journalistic sources is one of the cornerstones of freedom of the press. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest".
"The Court considers that any search involving the seizure of data storage devices such as laptops, external hard drives, memory cards and flash drives belonging to a journalist raises a question of the journalist's freedom of expression including source protection and that the access to the information contained therein must be protected by sufficient and adequate safeguards against abuse. In the present case, although the investigating judge's involvement in an immediate post factum review was provided for in the law, the Court finds that the investigating judge failed to establish that the interests of the investigation in securing evidence were sufficient to override the public interest in the journalist's freedom of expression, including source protection and protection against the handover of the research material. "
"(i) the restriction to those passing into and out of the country;
(ii) the restriction to the statutory purpose;
(iii) the restriction to specially trained and accredited police officers;
(iv) the restrictions on the duration of questioning;
(v) the restrictions on the type of search;
(vi) the requirement to give explanatory notice to those questioned, including procedure for complaint;
(vii) the requirement to permit consultation with a solicitor and the notification of a third party;
(viii) the requirement for records to be kept;
(ix) the availability of judicial review; the contention of the appellant and of Liberty that judicial review would be ineffective is overstated; judicial review is available if bad faith or collateral purpose is alleged, and also via the principle of legitimate expectation where a breach of the Code of Practice or of the several restrictions listed above is in issue; courts are well used to requiring police officers to justify their actions and to drawing the correct inference if there is material to do so; use of the power for a collateral purpose, such as to investigate a non-terrorism suspected offence, would be likely to become apparent, as it did in the case of section 44 – see para 41(f), (g) and (h) above.
(x) the continuous supervision of the Independent Reviewer is of the first importance; it very clearly amounts to an informed, realistic and effective monitoring of the exercise of the powers and it results in highly influential recommendations for both practice and rule change where needed.
"… review post factum,…..cannot restore the confidentiality of journalistic sources once it is destroyed."
Lord Justice Richards:
Lord Justice Floyd: