IN THE COURT OF APPEAL B E T W E E N THE QUEEN C1/2014/0607 on the Application of David MIRANDA Appellant -v- (1) SECRETARY OF STATE FOR THE HOME DEPARTMENT (2) COMMISSIONER OF POLICE OF THE METROPOLIS Respondents APPELLANT S FURTHER NOTE ON DPP v BEGHAL [2015] UKSC 49 The judgment in DPP v Beghal [2015] UKSC 49 1. In 2011, Mrs Beghal, a French national, was stopped at East Midlands Airport by police officers exercising powers under Schedule 7 of Terrorism Act 2000 ( TACT ). She was never formally detained; however, she was held for 1 hour and 45 minutes in order to be searched and questioned (the attempts to question her were for a significantly shorter time because she declined to answer questions in the absence of a legal representative). 2. Her belongings were searched, but not retained. The police did not search or download any electronic material, such as phones or laptop computers in connection with Mrs Beghal. 3. Having declined to answer questions she was charged and subsequently convicted of failing to comply with an obligation imposed by Schedule 7. She challenged her conviction by way of case stated in the High Court. She then challenged the High Court s refusal of her appeal in the Supreme Court. Her challenge asserted that the obligation to answer questions under Schedule 7 were incompatible with Articles 5, 6 and 8 of ECHR. 4. On 22 July 2015, the Supreme Court gave judgment, refusing her appeal by a majority of 4-1. Lord Hughes (with whom Lord Hodge agreed) gave the lead judgment. Lord Neuberger and Lord Dyson MR gave a separate concurring judgment. Lord Kerr dissented. 1
The significance of Beghal v DPP to Mr Miranda s appeal 5. Ground 5 of this appeal relates to the compatibility of Schedule 7 powers with ECHR, Articles 5, 8 and 10. However, the principal focus is Article 10 (see Appellant s Skeleton Argument at [124] [164]). 6. In Beghal, the Supreme Court did not address Article 10 or the seizure of journalistic material (neither of which arose on the facts of Beghal). Insofar as Articles 5 and 8 are concerned, the Supreme Court provided guidance about matters that did not directly arise on the facts of that case but are relevant in this appeal: in particular, the lawfulness of copying and retaining electronic data and the lawfulness of formally detaining individuals for a period of several hours under Schedule 7. 7. Insofar as Article 10 is concerned, the Supreme Court s reasoning in Beghal provides some assistance in the context of the Appellant s submissions concerning journalistic material. 1 This is because many of the concerns expressed by the Supreme Court in relation to Article 8 and the general seizure, inspection and retention of personal data, apply with even greater force in the context of Article 10 and the state seizing, inspecting and retaining journalistic material. Article 5 Detention for a period of several hours 8. The Supreme Court considered the application of Article 5 ECHR to the detention power under Schedule 7. On the facts of Mrs Beghal s case, the majority held that there was no violation of Article 5 due to the relatively short length of Mrs Beghal s detention. The majority stated, however, that detention for several hours would only be compatible with Article 5 if: there is a reasonable suspicion that the individual is a terrorist within the meaning of s40(1)(b) TACT; or 1 The Supreme Court recently observed that: Compulsory disclosure of journalistic material is a highly sensitive and difficult area. It is likely to involve questions of the journalist s substantive rights. (R (British Sky Broadcasting) v Central Criminal Court [2014] AC 885 at [29]). The existence of a clear legal framework with robust safeguards, and scrupulous adherence to that framework in individual cases, are particularly important in the context of the special protection afforded to journalistic activities under Article 10. 2
there are other grounds for arresting the person. 9. Lord Hughes explained (at [52]): The level of intrusion occasioned by detention for up to six hours is of a different order to the intrusion occasioned by compulsory questioning and search, and it does not follow either that the safeguards which are adequate for the one are sufficient for the other, or that the fair balance between the rights of the individual and the interests of the public falls in the same place. Accordingly, he concluded at [55]: To be proportionate, detention for this length of time calls for objectively demonstrated grounds, such as a suspicion on reasonable grounds that the subject falls within section 40(1)(b) [of TACT] or, of course, other grounds for arrest 10. In reaching this conclusion, Lord Hughes endorsed a higher threshold of suspicion than the Independent Reviewer of Terrorism Legislation, David Anderson QC, had proposed in a memo to the Home Affairs Select Committee. 2 Lord Hughes explained (at [55]): The Independent Reviewer also had doubts about the power of detention, although he contemplated a test of subjective, rather than objectively justified, suspicion. The better view is that if detention beyond what is necessary to complete the process is to be undertaken it ought to be justified by objectively demonstrated suspicion. 11. Lord Neuberger and Lord Dyson MR expressly agreed with Lord Hughes reasoning on Article 5. 3 12. In the present case the Appellant was detained at Heathrow for just under nine hours. 4 There were no objective grounds for suspecting that he was a terrorist at any time during the examination. He was not arrested at any point, nor is there any indication or suggestion in any of the police witness statements that there were objectively justified grounds to suspect the 2 Recommendations of the Independent Reviewer on Schedule 7 to the Terrorism Act 2000, Memorandum to Home Affairs Select Committee (20 November 2013), para 30 3 At [73]. 4 This was the statutory maximum in August 2013; the maximum period was subsequently reduced to six hours. 3
Appellant of being a terrorist. On the contrary DS Stokley concluded there were no reasonable grounds for suspecting the Appellant of any offence. 5 Similarly there was no terrorist investigation underway at that point. 6 13. Applying the analysis in Beghal, the Defendant s lengthy detention for nine hours would have been compatible with Article 5 only if there were reasonable grounds to suspect him of being a terrorist. But for the reasons explained above, there is no evidence he was ever detained on that basis. His detention therefore violated Article 5. Article 8 Inspection, copying and retention of electronic data 14. Although it did not arise on the facts of the case, in Beghal Lord Hughes expressly considered the ECHR compatibility of the use of Schedule 7 powers to obtain, copy and retain electronic data. (See [57] [58].) 15. Lord Hughes did not address the specific issue of journalistic material that arises in this case, but the Appellant submits that the points he raises are relevant in this case because the seizure of electronic devices and data from those engaged in journalistic activities is a particularly serious interference with Article 10(1) and accordingly requires specific and stringent safeguards. 7 16. At [57], Lord Hughes began by considering the nature of the interference with fundamental rights caused by the retention of electronic data, noting that it: is a considerable intrusion into the private life of the subject, particularly given the volume and content of personal material which is kept nowadays on mobile telephones or personal computers. 17. At the time the Appellant was stopped, Schedule 7 gave an officer power to retain seized items on two grounds. First, under paragraph 11(2)(a), material 5 DS Stokley s decision log records that: on the information I have there is insufficient grounds to arrest him as the majority of the information is encrypted [Appeal Bundle, Tab J, page 276]. Similarly, a briefing note produced by DS Howie confirms that at the end of the examination D/Supt Stokley made the decision that there was insufficient evidence to arrest the male for either crime, OSA or TACT offences [Appeal Bundle, Tab J, p. 241, para 11]. 6 Second Defendant s Skeleton Argument [Appeal Bundle, Tab F, page 249, para 47] 7 As the ECtHR stated in Nagla v Latvia (App No. 73469/10, 16 July 2013: 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 (at [101]). 4
may be retained for the purpose of examination for a period of up to 7 days. Second, material may be retained by an examining officer if he believed that it may be needed for use in criminal proceedings (paragraph 11(2)(b)), or in connection with a deportation (paragraph 11(2)(c)). 18. Lord Hughes distinguished between these two grounds (see [57]): (1) Retention of electronic data on the basis of an examining officer s belief that it may be need as evidence in criminal proceedings (or for a deportation decision) may not be an infringement of the person s rights under Article 8. (2) But retention merely for the purposes of examination required a different assessment. At [58], Lord Hughes indicated that objectively established grounds for suspicion ought to be required where an examining officer wishes to retain electronic data beyond the duration of the stop and a short period afterwards to compare records. 19. Lord Hughes conclusion on the second point reflected concerns about this power expressed by the Independent Reviewer in his Annual Reports. Lord Hughes noted that the Code of Practice for Examining Officers offers no further guidance on the retention of electronic data, and that there was therefore a good deal of force in the Independent Reviewer s conclusion that greater safeguards are called for. Lord Neuberger and Lord Dyson MR expressly agreed with Lord Hughes reasoning concerning the copying, inspection and retention of electronic data. 8 20. The Independent Reviewer specifically considered the Supreme Court s judgment in Beghal his 2015 Annual Report. 9 He noted that, had [Mrs Beghal s] electronic data been retained for substantial periods of time it seems from the comments of all Justices that the Supreme Court would have found her rights to have been infringed. 10 The Independent Reviewer 8 See para 72 9 Published on 17 September 2015 10 The Terrorism Acts in 2014 (published in September 2015), para 6.37 5
added that the Supreme Court s judgment gave a strong indication that electronic data cannot be lawfully retained for more than a limited time. 11 21. In his 2014 Annual Report, the Independent Reviewer recommended that the power to make and retain copies of electronic data should apply only if a senior officer is satisfied that there are grounds for suspecting that the person appears to be a person falling within section 40(1)(b). 12 He also recommended that: the Government indicate how it will ensure that private electronic data gathered under Schedule 7 is subject to proper safeguards governing its retention and use. 13 22. The Supreme Court s approach to electronic data, in the context of Schedule 7 and Article 8, as outlined above, has the following consequences in this appeal: (1) Beyond a very short period of time, and absent any appropriate safeguards, the retention and examination of personal electronic data under paragraph 11(2)(a) of Schedule 7 (i.e. the power to detain for examination for up to 7 days), is a breach of Article 8. (2) The criticisms of the use of this power to retain and inspect electronic material apply with even greater force in the context of Article 10 and the seizure, retention and inspection of journalistic material because of the special protections required by such material in the context of freedom of expression. (3) Accordingly, if, as appears to be the case, the Appellant s electronic material was seized, inspected and retained for a considerable time pursuant to paragraph 11(2)(a) of Schedule 7 his rights under both Article 8 and Article 10 were breached. (4) If the Respondents aver that, at the time of the Appellant s release from detention his electronic material was in fact retained and inspected pursuant to paragraph 11(2)(b) of Schedule 7 (i.e. an 11 Ibid, para 6.38 12 The Terrorism Acts in 2013 (published in September 2014), para 7.28 13 Ibid. 6
examining officers belief that the material may be needed for use in criminal proceedings), this is not supported by the evidence that was before the High Court: neither of the officers who stopped and questioned the Appellant provided evidence to the Court; the evidence from DS Stokely appears consistent with detaining the material pursuant to paragraph 11(2)(a). He does state that he was aware of his potential power to retain for longer if he believed it may be needed for us as evidence in criminal proceedings, but does not indicate that was his view at that time. 14 (5) The principles relating to electronic data, Schedule 7 powers and Article 8 ECHR, as outlined by Lord Hughes emphasise the need for a clear framework in which any infringement of rights relating to electronic data occurs, and the seriousness of such infringement insofar as any justification is required. This has obvious implications to the Court s separate consideration of the infringement of rights under Article 10. Subsequent changes to the Code of Practice reveal the previous lack of adequate safeguards: In his written evidence to the Joint Committee on Human Rights dated 20 November 2013, (a few months after the Appellant had been detained) the Independent Reviewer observed that the absence of any express system of safeguards in Schedule 7 for journalistic material was anomalous in relation to the absence of other safeguards that appear in comparable regimes (para 37). The revised Code of Practice published in March 2015 contains a new provision which expressly states that examining officers should cease reviewing, and not copy, information which they have reasonable grounds for believing is subject to legal privilege, is excluded material or special procedure material, as defined in sections 10, 11 and 14 of the Police and Criminal Evidence Act 1984). The material seized from the Appellant was excluded material and special 14 Witness statement of DS Stokley [Appeal Bundle, Tab H, p. 73, para 58] 7
procedure material. At the time of the Appellant s Schedule 7 examination, there were no safeguards or restrictions on the examination or copying of such material in the Code or in Schedule 7 of TACT. 15 This is a further reason why the Appellant s Schedule 7 examination was not prescribed by law under Article 10. Matthew Ryder QC 18 November 2015 Dan Squires Edward Craven Matrix 15 By contrast, Schedule 5 of TACT establishes a clear mechanism (including a process of judicial authorisation) for obtaining access to excluded material and special procedure material. 8