-v- (1) SECRETARY OF STATE FOR THE HOME DEPARTMENT. (2) COMMISSIONER OF POLICE OF THE METROPOLIS Respondents APPELLANT S REPLACEMENT SKELETON ARGUMENT

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1 IN THE COURT OF APPEAL B E T W E E N THE QUEEN C1/2014/0607 on the Application of David MIRANDA Appellant (1) SECRETARY OF STATE FOR THE HOME DEPARTMENT -v- (2) COMMISSIONER OF POLICE OF THE METROPOLIS Respondents APPELLANT S REPLACEMENT SKELETON ARGUMENT Note for the Court: This skeleton argument was originally filed in support of the application for permission to appeal dated 21 February Permission to appeal was granted by Richards LJ on 14 May Pursuant to Practice Direction 52C, paras 21 and 31, this skeleton argument became the Appellant s appeal skeleton in June On 10 July 2014, the Court of Appeal stayed the appeal pending the judgment of the Supreme Court in Beghal v Director of Public Prosecutions. The Supreme Court delivered judgment in Beghal on 22 July The Supreme Court s judgment in Beghal supersedes certain submissions in the appeal skeleton concerning Ground 5 of the Grounds of Appeal (compatibility of Schedule 7 to the Terrorism Act 2000 with Articles 5, 8 and 10 ECHR). To assist the Court of Appeal, the Appellant has therefore struck through those passages in this replacement skeleton argument (see paras 14 27, 125, 127 and below). The Appellant has also submitted two short Notes that address (i) the Supreme Court s judgment in Beghal and (ii) the Divisional Court s interpretation of s. 1 of the Terrorism Act The Court of Appeal is respectfully requested to read those Notes in conjunction with this replacement skeleton argument. Overview Reading time: Hearing time estimate: List of Essential Reading: 5 hours 1½ days Annex A THE APPEAL 1 1. On 18 August 2013, the Appellant was stopped by police officers at Heathrow airport, pursuant to Schedule 7 of the Terrorism Act 2000 (TACT). The officers seized encrypted digital material from him, which he possessed for journalistic purposes. They questioned and detained him for 9 hours. 1 Unless otherwise indicated, references are to the Appellant s bundle, and given as [A/XX] where A is the Tab and XX is the page number. 1

2 2. He brought a claim for judicial review, challenging the use of Schedule 7 powers. He claimed the powers had been exercised for an improper purpose; their use was disproportionate; and Schedule 7 was incompatible with his fundamental rights pursuant to Articles 5, 8 and 10 of the European Convention on Human Rights (ECHR). 3. His claim was heard before a Divisional Court on 6 7 November It was a rolled up hearing of both permission and the substantive application. 4. On 19 February 2014 the Divisional Court (Laws LJ, Ouseley J and Openshaw J) gave judgment on the Appellant s claim. It granted the Appellant permission to apply for judicial review on the basis that his claim raises issues of substantial importance. But the Divisional Court dismissed his claim The Appellant appeals that judgment and submits that the Divisional Court erred in five ways, summarised below. SUMMARY OF THE FIVE GROUNDS ON APPEAL 6. First, the Divisional Court erred, in law, in the way it determined the purpose of the two examining officers, who exercised the Schedule 7 powers. 7. In particular, the Divisional Court determined the examining officers purpose by reference to judgements and assessments by other persons, that were unknown to the examining officers. This was a flawed approach. The purpose for which a public officer exercises a statutory power should focus on his own knowledge and state of mind. It should not be determined by reference to knowledge or assessments of other people unknown to him. 8. Second, even if contrary to the Appellant s first ground, the Divisional Court was permitted to determine the examining officers purpose by reference to evidence of other persons knowledge or judgements, the Divisional Court erred in its own assessment of that evidence. 2 [C/1-32] 2

3 9. In particular, the Divisional Court acknowledged the dominant purpose test (set out in R v Southwark Crown Court ex parte Bowles [1998] AC 642, [1998] UKHL 16) but failed properly to apply it. Further, the Divisional Court adopted errors of law that were contained in those other persons assessments. 10. Third, the Divisional Court erred in its assessment of whether the use of Schedule 7 powers struck a fair balance between the rights of the Appellant and the interests of the community. 11. In particular, the Divisional Court accepted the Respondents witnesses evidence that some of the data seized from the Appellant may cause significant harm to national security if it were released into the public domain. But neither the Respondent s witnesses nor the Divisional Court itself made any proper assessment of the actual or likely risk that such harmful release of that data would occur. 12. Fourth, the Divisional Court also erred in its assessment of whether the use of Schedule 7 powers was proportionate, by determining that the potential use of Schedule 5 of TACT would have been impractical and therefore did not provide a less intrusive means by which to obtain the material from the Appellant than Schedule Fifth, the Divisional Court erred in concluding that Schedule 7 is compatible with Articles 5, 8 and 10 of ECHR. 14. In particular, the Divisional Court agreed with the conclusion of a differently constituted Divisional Court in the case of Beghal v DPP [2014] 1 All ER 529; [2013] EWHC The Appellant submits that the reasoning in Beghal v DPP was incorrect and should not have been followed. Further, the Divisional Court cast doubt on the decision of the European Court of Human Rights in the case of Gillan and Quinton v United Kingdom (2010) 50 EHRR 45. That was also an error of law. A procedural consideration on the fifth ground 15. It is important to note that on 8 February 2014, the Supreme Court granted permission to appeal in the case of DPP v Beghal. That appeal will consider Schedule 7 s compatibility with Articles 5 and 8 ECHR, as well as the correct 3

4 approach domestic courts should take to the case of ECtHR ruling in the case of Gillan v United Kingdom. 16. In light of that development, the Appellant submits that permission to appeal should be given on this fifth ground, not least because the Supreme Court has already acknowledged the importance of this issue. 17. However, it will be necessary for this Court, and the parties to this appeal, to determine whether it is appropriate for the fifth ground to be argued before the Court of Appeal, alongside any other points upon which permission to appeal is granted; or whether the fifth ground should be separated from any other issues upon which permission to appeal is granted, and stayed pending judgment from the Supreme Court in Beghal v DPP. 4

5 THE FACTS 18. The facts are summarised in the Divisional Court s judgment ( the Judgment ) at [7] [13]. 3 For the sake of completeness they are set out more fully below. Background and context 19. The Appellant is a Brazilian national who lives in Rio de Janeiro. His spouse is the journalist Glenn Greenwald. 20. Since early June 2013, the Guardian and other highly respected news publications published articles about mass digital surveillance of citizens by the US National Security Agency (NSA) and GCHQ. Their articles were based on material obtained from a former NSA analyst, Edward Snowden. Mr Greenwald was working with the Guardian at the time. He was one of the key writers. 21. On 12 August 2013, the Appellant travelled from Rio de Janeiro to Berlin to meet another journalist named Laura Poitras. The Appellant was assisting the journalistic work of Mr Greenwald and was carrying encrypted material containing data obtained from Mr Snowden. 22. The Appellant spent 6 days in Berlin and returned through Heathrow on the morning of Sunday, 18 August At that time he was stopped pursuant to Schedule 7 of TACT. Police and Security Service activity leading up to the Schedule 7 stop on the Appellant Thursday 15 August At some time on or before 15 August 2013, the Security Service had begun an operation into Mr Snowden and his associates, in regard to the unauthorised disclosure of UK protectively marked material. They were aware of the Appellant s travel and assessed he was likely to be carrying the Snowden material to assist Mr Greenwald. 4 3 [C/6-8] 4 DSU Stokley witness statement, paragraph 8 [H/50-51]. 5

6 24. At a meeting at hours on that day, the Security Service briefed Detective Superintendent Stokley of the Counter Terrorism Command (SO15) on their national security operation relating to Mr Snowden. 25. Det Supt Stokley provided a witness statement for the Divisional Court proceedings. 5 He stated that, in its initial stages, the operation which led to Mr MIRANDA being stopped and questioned under Schedule 7 to the Terrorism Act 2000 (TACT) was unusual in that it was led almost entirely by the Security Service. Unlike most other joint operations that I had been involved with before, in this instance SO15 s involvement was minimal up to the point that the Schedule 7 stop was executed Also on 15 August 2013, a Port Circulation Sheet (PCS) was issued relating to the Appellant. A PCS is a document used to provide information to counter terrorism police officers. In this case it was issued by the Security Service. 27. Page 2 of the PCS contains the following instruction to the person filling in the PCS form: 7 If you are requesting the subject to be examined under Schedule 7, please confirm the below statement: I confirm that the purpose of an examination will be 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. The Security Service had marked this box not applicable. 28. Also on Page 2, under the heading Intelligence Summary and Additional Information the PCS said: 8 Port officers must be in a position to account for their use of powers on the information available. Please provide a summary of current intelligence explaining why the person is of interest. Where a Schedule 7 is requested this section should outline the contribution the examination will make in assisting a determination of whether the person appears to be someone who is or has been concerned in CPI [the commission, preparation or instigation of acts of terrorism]. The Examining Officer will refer to this information when deciding how and to what extent Schedule 7 powers will be used. 5 [H/47-76] 6 Paragraph 7 [H/50] 7 [J/206] 8 [J/206] 6

7 29. In that section, the Security Service provided the following explanation of the reason for requesting a Schedule 7 stop (emphasis added): 9 Intelligence indicates that Mr 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. 30. At page 3, of the PCS the Security Service were asked to fill out questions they wished to be asked. At page 4 they were asked to explain whether the examination of electronic media will assist, with various options as to it being downloaded. 31. The initial PCS issued on 15 August was cancelled on the same day. 32. Det Supt Stokley met with the DC Justin Myers from the Ports Team, at New Scotland Yard. They agreed that if the Appellant was going to be in transit through LHR [London Heathrow] for a relatively short period of time, the best way we would be able to achieve the Security Service and SO15 objectives would be to conduct a port stop That afternoon Det Supt Stokley initiated lines of enquiry to establish whether the Clamant had committed any offence after obtaining Security Service clearance to do so. Those inquiries apparently yielded no evidence of any criminality, since later that day Det Supt Stokley began to address my mind to how we (SO15) could articulate the justification for the Schedule 7 stop in a way that was consistent with but also independent of the overall joint operational objectives of the operation which had been set by the Security Service. 11 Friday 16 August On 16 August 2013, the Security Service wrote to Det Supt Stockley. The subject of the letter was National Security Justification for proposed operational actions around [redacted] David MIRANDA. It stated as follows (emphasis added): 12 9 [J/206] 10 Paragraph 14 [H/53] 11 Paragraph 20 [H/55] 12 [I/44-45] 7

8 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 POITAS, 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, [redacted]. We are requesting that you exercise your powers to carry out a ports stop against David MIRANDA [redacted] 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. [redacted] 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 Saturday 17 August At hours a new PCS dated 17 August 2013 was received at the National Ports Office. It gave an expanded list of questions. 36. That PCS received active consideration from PS Holmes at hours. 37. Acting Detective Inspector Woodford was the Ports Duty Officer for Heathrow on the weekend of August He provided a witness statement for the Divisional Court proceedings His evidence was that at around lunchtime on 17 August he received a phone call from PS Holmes and it was PS Holmes s view that the PCS did not contain adequate information or sufficient clarity to satisfy him that the use of Schedule 7 in these circumstances was appropriate or lawful ADI Woodford was concerned that the PCS had not confirmed that a Schedule 7 stop was requested and that, in fact, in the relevant box it was marked not applicable. He felt the PCS could not be accepted in its current state and it should be returned to the Security Service for them to provide further confirmation and assurance about the request. 13 [H/38-46] 14 Paragraph 10 [H/41-42] 8

9 40. At hours on 17 August 2013, a final PCS was received by the National Ports Office. ADI Woodford was told on the telephone by a person whose identity he did not recall that an amended PCS had been received that now indicated that the Security Service had confirmed that the purpose of the examination was to make a determination about whether the subject was concerned in CPI. He was also informed that the intelligence case explained how the proposed stop which appeared to be directed towards national security issues was related to CPI That final PCS had the following addition to the intelligence summary: 16 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 ADI Woodford s witness statement indicated that he knew nothing at all about the Appellant or the material he was carrying, or even his connection to Edward Snowden. The only information he had was contained on the PCS. Sunday 18 August The Appellant arrived in Heathrow on a flight from Berlin that morning. At approximately hours two SO15 officers, PC and PC , stopped the Appellant pursuant to Schedule 7 of TACT. (1) PC and PC served the Appellant with appropriate forms (TACT1 and TACT 2) and then conducted questioning of him that lasted for 9 hours. (2) ADI Woodford s witness statement stated, I assisted in the stop to the extent that I joined the officers in meeting the aircraft at the gate. Once I was satisfied the officers had stopped Mr MIRANDA. I returned to the national 15 Paragraph 14 [H/43-44] 16 [J/218] 9

10 ports officer at LHR. It appears he had no further involvement in the Schedule 7 stop or examination. 17 (3) Det Supt Stokley s evidence was that, Mr Miranda was detained under Schedule 7 for the purpose of examining him in accordance with the PCS. 18 However, it appears that Det Supt Stokley was not present at the airport at that time. He attended Heathrow later that morning. The extent of his involvement is not entirely clear from his statement but, amongst other things, he gave a briefing to the officers about retention of material on the drives. 44. Notably, the Respondents provided no witness statements from the two officers who exercised the Schedule 7 powers. The examination of the Appellant and seizure of material from him 45. A number of items were taken from the Appellant. They contained large amounts of journalistic material, namely 19 : (1) Two highly encrypted storage devices containing source material from Ms Poitras. These devices contained confidential journalistic material emanating from Mr Snowden. The Appellant was in the process of delivering these materials to Mr Greenwald for his work on articles for The Guardian. (2) A further hard drive file of data containing highly encrypted documents emanating from Mr Snowden and an index and summary. (3) Audio recordings of confidential discussions with Mr Poitras and other members of her editorial team regarding potential film and documentary projects. (4) A number of confidential personal items unrelated to any journalistic activities. 46. It appears that the material was handed to the Security Service for inspection after it was seized. 17 Paragraph 18 [H/45] 18 Paragraph 32 [H/61] 19 See para 24 of the witness statement of David Miranda [H/86]. 10

11 47. During the Appellant s detention, he was questioned by PC and PC on a number of occasions, each period of questioning lasting about 10 minutes. 48. There is no definitive list of the questions he was asked, but they appear to have included questions about his background and family in Brazil; where he had travelled in Berlin and who he had met while he was there; and his company and business activities. Other than broad questions as to his political views on government, or demonstrations in Brazil, there do not appear to have been any questions focused on discerning the real likelihood that he would assist hostile states, or engage in terrorist activity. Police activity during the Schedule 7 stop and examination 49. In relation to assessing the evidence of the dominant purpose of the officers involved, the following points about the police activity are significant. 50. The two officers examining the Appellant knew nothing of the intelligence case that had resulted in the Schedule 7 stop, other than the bare facts set out in the final PCS. 51. They were aware of questions that the Security Service wanted them to ask, 20 but they did not know the significance of the questions, the context of the questions, the way in which those questions related to any potential involvement of the Appellant in terrorism, or the meaning and significance of any answers that the Appellant might give. It seems that they were therefore unable to understand any information they received within the context of the intelligence case known to the Security Service (which had resulted in his stop being requested) or any threat posed by the Appellant. 52. The Appellant s Schedule 7 detention and examination continued for the maximum 9 hours permitted by statute. The examining officers did not wait for his lawyer to arrive, and therefore his lawyer was only able to be present during the last hour of questioning. 20 [I/35] 11

12 53. As a result of the Schedule 7 stop, the Appellant missed his original onward flight and was placed on a later flight to Brazil. In addition to 9 hours of detention and coercive questioning under threat of criminal prosecution for non-compliance, the Appellant suffered significant distress, as is set out in his witness statement. 21 Evidence before the Divisional Court 54. The evidence before the Divisional Court included the following witness statements: (1) First Witness Statement of Alan Rusbridger (editor of the Guardian), on behalf of the Appellant (21 August 2013) 22 (2) First Witness Statement of Oliver Robbins (Deputy National Security Advisor for Intelligence, Security and Resilience in the Cabinet Office), on behalf of the First Defendant (27 August 2013) 23 (3) Witness Statement of Det Supt Caroline Goode, on behalf of Second Defendant (27 August 2013) 24 (4) Second Witness Statement of Oliver Robbins, on behalf of the First Defendant (24 September 2013) 25 (5) Witness Statement of DI Maxwell Woodford, on behalf of Second Defendant (24 September 2013) 26 (6) Witness Statement of Det Supt James Stokley, on behalf of Second Defendant (24 September 2013) 27 (7) First Witness Statement of the Appellant, David Miranda and Exhibit DM 1 (23 October 2013) 28 (8) First Witness Statement of Glenn Greenwald, on behalf of the Appellant (23 October 2013) 29 (9) Second witness statement of DS James Stokley, on behalf of the Second Defendant (30 October 2013) [H/77-100] 22 [H/5-7] 23 [H/8-20] 24 [H/21-26] 25 [H/27-37] 26 [H/38-46] 27 [H/47-76] 28 [H/77-109] 29 [H/ ] 30 [H/ ] 12

13 55. On 23 October 2013, the Appellant applied for permission to cross-examine Mr Robbins, Det Supt Stokley and ADI Woodford at the hearing. That application was refused (see Judgment at [14]). 31 THE LEGAL FRAMEWORK The Terrorism Act Section 1 of TACT defines terrorism as follows: (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) (b) (c) (d) (e) involves serious violence against a person; involves serious damage to property; endangers a person's life, other than that of the person committing the action; creates a serious risk to the health or safety of the public or a section of the public; or is designed seriously to interfere with or seriously to disrupt an electronic system. (3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied. (4) In this section (a) (b) (c) (d) action includes action outside the United Kingdom, a reference to any person or to property is a reference to any person, or to property, wherever situated, a reference to the public includes a reference to the public of a country other than the United Kingdom, and the government means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom. 31 [C/8-9] (5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation. 13

14 57. Section 40 of TACT states: (1) In this Part terrorist means a person who (a) has committed an offence under any of section 11, 12, 15 to 18, 54 and 56 to 63; or (b) is, or has been, concerned in the commission, preparation or instigation of acts of terrorism. (2) The reference in subsection (1)(b) to a person who has been concerned in the commission, preparation or instigation of acts of terrorism includes a reference to a person who has been, whether before or after the passing of this Act, concerned in the commission, preparation of instigation of acts of terrorism within the meaning of given by section 1. Schedule 7 of TACT Port and Border Controls 58. Schedule 7 establishes compulsory powers to detain, question and seize material that are exercisable in ports (including airports) and border areas. 59. Paragraph 2 states as follows: (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 a 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 (3) This paragraph also applies to a person on a ship or aircraft which has arrived at any place in Great Britain or Northern Ireland (whether from within or outside 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). 60. Paragraph 5 imposes obligations on the person under examination: A person questioned under paragraph 2 must (a) give the examining officer any information in his possession which the officer requests; 14

15 (b) (c) (d) give the examining officer on request either a valid passport which includes a photograph or another document which establishes his identity; declare whether he has with him documents of a kind specified by the examining officer; give the examining officer on request any document which he has with him and which is of a kind specified by the officer. 61. Paragraph 6 gives an examining officer the power to stop and detain a person subject to examination under paragraph 2, for up to 9 hours. 62. Paragraph 8 gives an officer wide search powers in relation to the person under examination: 8(1) An examining officer who questions a person under paragraph 2 may, for the purpose of determining whether he falls within section 40(1)(b) (a) search the person; (b) search anything which he has with him, or which belongs to him, and which is on a ship or aircraft; (c) search anything which he has with him, or which belongs to him, and which the examining officer reasonably believes has been, or is about to be, on a ship or aircraft; 63. Paragraph 11 gives an officer the power to retain any item found on a search, for up to 7 days: 11(1) This paragraph applies to anything which (a) is given to an examining officer in accordance with paragraph 5(d); (b) is searched or found on a search under paragraph 8; or (c) is examined under paragraph 9 (power to examine goods arriving in UK). (2) An examining officer may detain the thing (a) for the purpose of examination, for a period not exceeding seven days beginning with the day on which the detention commences 64. Paragraph 18 makes it a criminal offence wilfully to fail to comply with the above obligations: 18(1) A person commits an offence if he (a) wilfully fails to comply with a duty imposed under or by virtue of this Schedule, (b) wilfully contravenes a prohibition imposed under or by virtue of this Schedule, or (c) wilfully obstructs, or seeks to frustrate, a search or examination under or by virtue of this Schedule. (2) A person guilty of an offence under this paragraph shall be liable on summary conviction to 15

16 (a) (b) (c) Imprisonment for a term not exceeding three months; A fine not exceeding level 4 on the standard scale; Both. 65. Schedule 8 of TACT also sets out further provisions for the treatment of persons detained under Schedule 7: a detained person shall be deemed to be in legal custody through the period of his detention; fingerprints and non-intimate samples may be taken from detained persons without their consent. Schedule 5 of TACT 2000 Terrorist Investigations: Information 66. Section 32 of TACT defines terrorist investigation : 32. In this Act terrorist investigation means an investigation of (a) (b) (c) (d) (e) the commission, preparation or instigation of acts of terrorism, an act which appears to have been done for the purposes of terrorism, the resources of a proscribed organisation, the possibility of making an order under section 3(3), or the commission, preparation or instigation of an offence under this Act or under Part 1 of the Terrorism Act 2006 other than an offence under section 1 or 2 of that Act 67. Schedule 5 makes provision for searches of property and the seizure of material for the purposes of a terrorist investigation. 68. Paragraph 4 of Schedule 5 states: In this part (a) excluded material has the meaning given by section 11 of the Police and Criminal Evidence Act 1984, (b) items subject to legal privilege has the meaning given by section 10 of that Act, and (c) special procedure material has the meaning given by section 14 of that Act; and material is excepted material if it falls within any of the paragraphs (a) to (c). 69. Paragraph 5 and 6 of Schedule 5 fall under the sub-heading Excluded and special procedure material: production & access : 5(1) A constable may apply to a Circuit judge or a District Judge (Magistrates Court) for an order under this paragraph for the purposes of a terrorist investigation. 16

17 (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) (b) (c) 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; to give a constable access to any material of the kind mentioned in paragraph (a) within a specified period; to state to the best of his knowledge and belief the location of material to which the application relates if it is not in and it will not come into, his possession, custody or power within the period specified under paragraph (a) or (b). (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 Court) to have in his possession, custody or power any of the material to which the application relates, and (b) a period specified in an order shall be the period of seven days beginning with the date of the order unless it appears to the judge that a different period would be appropriate in the particular circumstances of the application. 6(1) A Circuit Judge or a District Judge (Magistrates Court) 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, (b) that it does not include items subject to legal privilege, and (c) that the conditions in sub-paragraph (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. (3) The second condition is that there are reasonable grounds for believing that the material should be produced or that the access to it should be given having regard (a) to the benefit likely to accrue to a terrorist investigation if the material is obtained, and (b) to the circumstances under which the person concerned has any of the material in his possession, custody or power. 17

18 GROUND 1: ERROR OF LAW IN DETERMINING THE PURPOSE OF THE EXAMINING OFFICERS BY REFERENCE TO INFORMATION AND JUDGEMENTS MADE BY OTHER PERSONS The Divisional Court s analysis of the examining officers purpose 70. In determining whether the examining officers acted for a purpose not permitted by Schedule 7 of TACT, Laws LJ analysed the purpose in two stages. First, he considered what the purpose was for the use of the powers in fact (at [18] [27]). Second, he considered what the purpose was of Schedule 7 powers in law (at [28] [36]), and accordingly whether the purpose in fact fell within the purpose in law. 71. In reaching his conclusion on the purpose in fact, he noted the following: (1) The purpose to be considered is, of course, the purpose for which the examining officers executed the stop. It seems to me plain on the evidence that the examining officers were PCs and They stopped the [Appellant] and questioned him. (In fact PC says that PC exercised his powers of examination under Schedule 7 (see [18]). (2) The Appellant had submitted that the purpose in question is the purpose in the mind of the examining officers, and relied on the judgment of Collins J in CC v Commissioner of Police of the Metropolis [2012] 1 WLR 1913, [2011] EWHC 3316 (see [19]). (3) In the alternative, the Appellant had submitted that if the purpose of the stop was looked at more broadly, through the prism of other officers evidence, the dominant purpose was to assist the Security Service investigation, not the statutory purpose pursuant to Schedule 7 (see [20]). (4) Laws LJ rejected the Appellant s first submissions and took the following approach (see [21]): in deciding whether the statutory purpose is made out I do not think the court is limited to consideration of the examining officers subjective state of mind 18

19 (5) Laws LJ then went on to consider assessments made by Det Sup Stockley and ADI Woodford, on the basis of information they were given and reached the following conclusions (at [26] [27]): Given these successive levels of authorisation, the purpose of the stop may confidently be gleaned from the final PCS considered in light of the National Security Justification. DI Woodford acted directly on the former, and Det Sup 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 [Appellant] 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. Applicable legal principles 72. The Divisional Court did not refer to any authority in reaching the view that the Court was not limited to the consideration of the examining officers state of mind, and that it was permissible to determine the examining officers purpose by considering the knowledge and judgments of other officers even though those details were not known to the examining officers. 73. It is well-established that a statutory power may not be used for an object outside its intended purpose, no matter how much that object may appear to the decision-maker to be in the public interest (Stewart v Perth and Kinross Council [2004] UKHL 16 at [28]; Pyx Granite Co. Ltd. v Ministry of Housing and Local Government [1958] 1 QB 554 at 572). 74. The question of what purpose or purposes a decision-maker exercised a power for is a question of fact, which the Court determines for itself on the evidence. The Court will not accept self-certification by a decision-maker: cf. R (Pearce) v Commissioner of Police of the Metropolis [2013] EWCA Civ 866 at [32] per Maurice Kay LJ. 75. Where multiple purposes can be discerned in the exercise of a discretionary power in a statutory context such as the present, and one is not authorised, the Court will enquire as to which was the dominant purpose in determining whether the exercise of the power is lawful: R v Southwark Crown Court ex parte Bowles [1998] AC

20 (Of course, an exercise of power will be independently unlawful if it takes account of a material irrelevant consideration whether the factor was a dominant factor or not.) 76. Paragraph 2 of Schedule 7 expressly only allows an examining officer to question and detain an individual for the purpose of determining whether he appears to be a person falling within section 40(1)(b). That is, for the purpose of determining whether he is a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism. The power to question and detain is vested in the examining officer only. 77. In the case of R (CC) v Commissioner for the Metropolis [2012] 2 All ER 1004; [2011] EWHC 3316 (Admin) Collins J applied the principles in ex parte Bowles in the context of determining examining officers purpose in exercising Schedule 7 powers. Collins J found that the Schedule 7 powers had been exercised for an unauthorised purpose. The officers asserted that they questioned the subject pursuant to the proper use of their powers. But, on the evidence, Collins J considered that the dominant purpose was to further the Secretary of State s desire to obtain evidence untainted by torture for use in control order proceedings. Collins J held that in determining compliance with the express statutory purpose in paragraph. 2(1), all will depend on what the officers knew and why they decided to use their powers (at [32]). Collins J s analysis accordingly focused on the knowledge and actions of the examining officers, inferences to be drawn from the questions they asked and whether it demonstrated they were simply carrying out an exercise to assist the Security Service, rather than make an assessment of their own, pursuant to Schedule The focus in CC on the subjective knowledge of the officers who exercised the power is consistent with well-established authority on the correct approach to reviewing the lawfulness of a police officer s powers of arrest. In O Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286, the Judicial Committee of the House of Lords considered the proper construction of s. 12(1) of the Prevention of Terrorism (Temporary Provisions) Act 1984, which provided a constable with a power of arrest without warrant on reasonable grounds for suspicion. 79. The House of Lords held that the statutory test fell to be satisfied based only on matters known to the arresting officer at the time of the arrest. This was because the statutory power was framed in terms of the officer s belief, the power was vested in the constable and not in his superior officers, and, in framing the statutory provision, 20

21 Parliament was taken to have proceeded on the longstanding constitutional theory of the independence and accountability of the individual constable (per Lord Steyn at pages , and Lord Hope at pages 298 and 303). 80. It is therefore an important principle that an officer s individual accountability underpins the coercive powers vested in him personally. The principle has led courts to resist finding that an officer can lawfully use his powers as a mere conduit for another: the officer exercising the power, remains accountable for the use of that power even where tasked to do so by others. 81. Accordingly, in Hough v Chief Constable of Staffordshire [2001] EWCA Civ 39 (again concerning a constable s power of arrest without warrant), Simon Brown LJ observed, at [16], that, the critical question to be asked in all cases is what is in the mind of the arresting officer: he can never be a mere conduit for someone else The Appellant s submissions on Ground The Divisional Court erred in determining that the court is [not] limited to a consideration of the examining officers' subjective state of mind, and thereafter in taking account of matters not known to the examining officers in determining their purpose, in fact. 83. The Appellant submits that the correct approach is that of Collins J in CC, namely that purpose in fact falls to be determined based on the actual knowledge of the officers. 84. This is the ordinary and natural construction of paragraph 2(1) of Schedule 7. An officer s purpose in exercising a statutory power is an inherently subjective concept connoting the goal or intention of the decision-maker. Since the relevant power is vested in the examining officer personally, paragraph 2(1) of Schedule 7 requires the Court to consider the goal or intention of the individual examining officer in question, when reviewing his exercise of the power. It is artificial to seek to identify the examining officer s purpose by reference to matters not known to him (here as 21

22 outlined in the National Security Justification 32 ) and/or by reference to the goals and intentions of other officers. 85. To do so, would also permit the examining officer to act as a mere conduit for the purposes of others in this case, the officers who had greater levels of information. If an examining officer s purpose is properly construed by reference to matters unknown to him at the time of exercising his powers (such as the anterior purposes of superior officers who acquiesce in the exercise of powers), the officer will necessarily be permitted, even required, to abrogate his individual responsibility in the belief that he is acting as the conduit for the legitimate purposes of others within the chain of decision-making. 86. The Appellant submits that this construction should therefore be rejected as contrary to the principle of individual accountability identified by the House of Lords in O Hara. The Appellant acknowledges that the power conferred on an officer by Schedule 7 is not identical to the statutory power of arrest without a warrant, not least because the former does not require reasonable grounds for suspicion. However, the general principle that where Parliament vests a power in an officer personally, and not in his superiors, he must be held accountable for the exercise of the power based on what he knew or did not know at the time, applies equally - arguably a fortiori - in respect of those statutory restrictions that Parliament has seen fit to place on the discretion given to the examining officer. In the case of Schedule 7, the statutory restriction on the power is that it can only be exercised by the examining officer for the specific purpose set out in paragraph The Appellant submitted to the Divisional Court, and submits on appeal, that when the focus is properly limited to what was, in fact, known to the examining officers, it is clear that the dominant purpose of the examining officers did not fall within Schedule 7. The dominant purpose was to assist the Security Services with national security objectives of retrieving and examining the Snowden material, including for the purpose of any Official Secrets Act investigations. 88. In setting out the Appellant s submission, the Divisional Court appeared to acknowledge the paucity of information available to the Court about the purpose of the examining officers upon which they could have properly exercised their Schedule 7 powers (at [19]): 32 [I/44-45] 22

23 PCs and apparently knew very little as I have said no more than was set out in the PCS. Mr Ryder [counsel for the Appellant] points out that they have not given evidence of the state of their knowledge or the nature of their purpose in effecting the stop. Accordingly, so it is argued, taken on its own such evidence as there is of the officers state of mind cannot of itself establish that they acted for the purpose allowed by Schedule The Appellant submits that if the Divisional Court had limited itself to the matters that were within the knowledge of the officers themselves, it is clear that their dominant purpose was merely to support the request of the Security Service and not to meaningfully exercise the powers for their proper Schedule 7 purposes. GROUND 2: ERROR OF LAW IN ASSESSING THE DOMINANT PURPOSE FOR WHICH SCHEDULE 7 WAS USED. The Divisional Court s analysis of the combined purpose of the officers 90. The Appellant submits, in the alternative to Ground 1, that even if the Divisional Court was entitled to determine the purpose of the examining officers by considering the knowledge and assessments of persons other than the examining officers, it erred in how it determined the relevant purpose. 91. After considering the evidence of Det Supt Stokley, Laws LJ determined that the purpose, in fact, was as follows (at [27]): The purpose of the stop thus disclosed may be simply expressed. It was to ascertain the nature of the material which the [Appellant] 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. 92. And at [32] Laws LJ described the purpose of Schedule 7 powers in the following terms: it appears to me that the Schedule 7 power is given in order to provide a reasonable but limited opportunity for the ascertainment of a possibility: the possibility that a traveller to a port may be involved ( concerned section 40(1)(b) [of TACT]), directly or indirectly, in any range of activities enumerated in section 1(2) [of TACT] 23

24 93. Laws LJ thus concluded at [36] in the following way: I conclude that the purpose of the stop to ascertain the nature of the material which the [Appellant] 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. Applicable legal principles 94. As stated above, paragraph 2 of Schedule 7 permits an examining officer to question a person for the purpose of determining whether he appears to be a person who is, or has been, concerned in the commission, preparation or instigation of acts of terrorism. Section 1 of TACT sets out the statutory definition of terrorism. 95. Accordingly, if an examining officer errs, in law, in determining what type of act falls within section 40(1)(b) for example, by focusing on a person s involvement in acts which should properly fall outside the scope of section 1 of TACT then the examining officer would be exercising his powers unlawfully. The Appellant s submissions on Ground The Divisional Court made three errors. 97. The Divisional Court s first error was that although it properly identified the dominant purpose test, as set out in R v Southwark Crown Court ex parte Bowles, it failed to apply it. 98. Laws LJ considered that the Security Service s National Security Justification formed part of the purpose of Det Supt Stokley and therefore, in taking Det Supt Stokley s assessments into account, formed part of the purpose of the use of Schedule 7 powers (see Judgment at [26]): Our main objectives against [the Appellant] are to understand the nature of any material he is carrying, mitigate the risks to national security that this material poses we judge that a ports stop of [the Appellant] is the only way of mitigating the risks posed by [the Appellant] to UK national security Additionally there is a substantial risk that [the Appellant] holds material which would be severely damaging to UK national security interests (the National Security Justification). 24

25 99. However, the National Security Justification was not, itself, a purpose falling within Schedule 7. If an improper purpose appeared to sit alongside a proper purpose, it is incumbent on the Court to identify which was the dominant purpose. In this case the Divisional Court failed to do so The purpose identified by the Divisional Court for the exercise of the officers powers was, to ascertain the nature of the material [the Appellant] was carrying and if it proved to be as feared, to neutralise the effects of its release or dissemination. This was insufficient to indicate whether or not the dominant purpose was, in fact, merely fulfilling the Security Service national security objective, rather than to assess whether the Appellant was a terrorist (as defined by section 40(1)(b) of TACT) The Appellant submits that if the Court had properly sought to distinguish the dominant purpose, and in doing so had included the evidence of Det Supt Stokely, it would nevertheless have concluded that the dominant purpose was not the Schedule 7 purpose for the following reasons: (1) The entire background and context in which the Schedule 7 powers were exercised was prompted and driven by the Security Service request to obtain information for their national security / OSA operation. There had been no criminal or terrorist investigation by the police prior to that point. (2) The initial PCS requests by the police did not even provide a legitimate purpose for making a Schedule 7 stop. 33 That PCS wording, on which the Second Respondent relied, was only provided by the Security Service after the police had informed them that, without the correct words indicating that purpose, the stop could not be made. (3) The Schedule 7 Examination Report describes the stop in terms of the exercise of powers in accordance with the wishes of the originator listed in the PCS. 34 (4) The very limited background provided to the examining officers meant that Det Supt Stokley must have realised that the questioning by the examining 33 See [J/ ] and [J/ ] 34 [J/233] 25

26 officers, for the statutory purpose in paragraph 2(1) of Schedule 7, would be a largely impotent exercise. (5) At the conclusion of the examination, Det Supt Stokley directed the examining officers to retain the property seized from the Appellant with a view to identifying possible OSA offences. Since the officers state of knowledge following the examination regarding the Appellant s actions and intentions and the content of the material in his possession was materially the same as before the Schedule 7 examination, it is telling that no reference was made to possible terrorism offences. This reinforced the inference that the dominant purpose for the exercise of Schedule 7 powers - including accessing the data within the encrypted drives - concerned national security and OSA matters, rather than terrorism The Divisional Court s second error was that it appeared to take into account a purpose advanced by Det Sup Stokley that was wholly speculative, without any evidential foundation, and was not communicated directly or indirectly to the officers who exercised the Schedule 7 powers. At [24] Laws LJ stated as follows: Det Sup Stokley s acquiescence in the stop was influenced by his apprehension, given the connection with Mr Snowden and the latter s movements, that [the Appellant] might have been concerned in acts falling within the definition of terrorism in section 1 of the 2000 Act which might be carried out by Russia and designed to influence the British government Paragraphs of his October witness statement show that he took that view. His particular focus was the property that we though might be found in [the Appellant s] possession (paragraph 32). The National Security Justification though it made no mention of Russia, reinforced [his] view.. reached independent[ly] of the case made by the Security Service for the stop, that the value of the material that [the Appellant] might be carrying to a hostile state was enormous and its disclosure to agents of a hostile state or a terrorist organisation would be catastrophic (paragraph 36). In his view this justified the use of Schedule 7 powers It was erroneous for the Divisional Court to suggest that such a speculative suggestion, not derived from any information from the Security Service and not communicated to any person that actually exercised the Schedule 7 powers, could properly be included in the assessment of the purpose of the exercise of the Schedule 7 powers, let alone support the predominance of a permissible Schedule 7 purpose. 26