IN THE HIGH COURT OF JUSTICE QUEEN S BENCH DIVISION ADMINISTRATIVE COURT BETWEEN: THE QUEEN on the application of DAVID MIRANDA and CO/11732/2013 Claimant (1) SECRETARY OF STATE FOR THE HOME DEPARTMENT (2) COMMISSIONER OF POLICE OF THE METROPOLIS Defendants (1) LIBERTY (2) ARTICLE 19, ENGLISH PEN & MEDIA LEGAL DEFENCE INITIATIVE (3) A COALITION OF MEDIA & FREE SPEECH ORGANISATIONS Interveners SUBMISSIONS ON BEHALF OF LIBERTY I. INTRODUCTION 1. Liberty submits that Schedule 7 is incompatible with Article 10 ECHR because it is over-broad, lacking in effective safeguards against misuse and fails adequately to protect journalistic rights. The structure of Liberty s submissions is as follows: (1) The reasoning of the European Court of Human Rights ( ECtHR ) in Gillan v United Kingdom (2010) 50 EHRR 45 ( Gillan ECtHR ) applies with equal force to Schedule 7 and demonstrates its Article 10 incompatibility. None of the factors on which the Divisional Court in R (Beghal) Director of Public Prosecutions [2013] EWHC 2573 (Admin) ( Beghal ) relied to distinguish Gillan ECtHR concerned Article 10. (2) The Schedule 7 power is ill-defined and over-broad. It allows a person to be detained for up to nine hours in order to establish whether he or she appears to be a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism. There is no requirement that the authorities suspect let alone reasonably that he or she is in fact such a person. The ill-defined nature of the power is 1
reflected in the authorities confusion in the present case about the application of the power to the Claimant. 1 (3) On its face, Schedule 7 allows a detained person to be questioned about confidential journalistic sources, and for confidential journalistic material to be searched, without any of the safeguards which apply to such sources and materials under comparable statutory provisions, including those in the same statute. (4) The breadth of the Schedule 7 power, coupled with the lack of effective safeguards, creates an inherent risk of arbitrary use. (5) This means that Schedule 7 does not meet the quality of law requirement of the Convention. It is therefore incompatible with Articles 5, 6, 8 and 10 of the Convention, regardless of the circumstances in which it is used in any individual case: see Gillan ECtHR in respect of s.44 of the same statute. (6) In light of the Beghal decision, Liberty does not in the present case make submissions on the compatibility of Schedule 7 with Articles 5, 6 and 8 2, but confines its submissions to the compatibility of Schedule 7 with Article 10. Article 10 was not in issue in Beghal, nor is it in the ongoing Strasbourg case of Malik v United Kingdom (App. No. 32968/11), in which the applicant challenges the Convention-compatibility of Schedule 7. (7) The quality of law requirement of the Convention cannot be assessed in the abstract, but requires consideration of whether the provision in question contains effective safeguards to protect the specific right in question. (8) The over-broad nature of Schedule 7 and the inherent risk of arbitrariness which this creates, coupled with the lack of (a) effective safeguards against misuse and (b) any express protection for confidential journalistic sources or materials, means that Schedule 7 is inherently incompatible with Article 10 of the Convention 3, regardless of the manner in which it is used in any particular case. This incompatibility can only be remedied by the inclusion of additional safeguards, including a reasonable suspicion requirement, into Schedule 7 a remedy which is beyond the reach of s.3 of the Human Rights Act 1998 ( HRA ). 1 See statement of Witness A, [10]-[13]. 2 Liberty formally reserves its position in the event that this case or Beghal are the subject of appeal to the Supreme Court. 3 Liberty contends that a declaration of incompatibility is not an effective remedy for the purposes of the Convention: see Malik v UK (considered at [15] below). 2
(9) A declaration that the power was misused in the Claimant s individual case does not provide an effective remedy for this legislative incompatibility. (10) The manner in which Schedule 7 was used in the Claimant s case underlines the unacceptably broad and uncertain scope of the power. II. LIBERTY 2. Liberty was given permission to intervene in writing by Order of Laws LJ, dated 9 October 2013. Liberty (the National Council for Civil Liberties) is a cross-party, non-party membership organisation founded in 1934, which is at the heart of the movement for fundamental rights and freedoms in England and Wales. 3. Liberty represented the applicants in McVeigh and others v United Kingdom (1983) 5 EHRR 71, a challenge to the pre-schedule 7 power to detain travellers passing through ports and airports, and the applicants in Gillan ECtHR. It recently contributed to the Home Office Review of the use of Schedule 7 (December 2012), and has briefed Parliament at all stages of the passage of the Anti-Social Behaviour, Crime and Policing Bill, in relation to the proposed amendments to Schedule 7. Liberty also represents the applicant in the ongoing case of Malik v United Kingdom 4. III. SUBMISSIONS 1. The lack of express journalistic protection 4. Schedule 7 provides no express protection for journalists, journalistic sources or materials. On its face, there is nothing to prevent a person detained under Schedule 7 from being required to answer questions relating to such matters, or to protect his or her confidential journalistic materials from being searched, read and copied. 5. The question is whether Parliament intended Schedule 7 to offer no protection at all to confidential journalistic sources or materials. The Secretary 4 App. No. 32968/11, declared admissible on 28 May 2013, Government s observations submitted on 12 September 2013. 3
of State argues that this is the case: Detailed Grounds at [39]. However, construed in this way, Schedule 7 would deprive the person concerned of the protections which he or she would normally enjoy in respect of answering such questions or producing such material. 6. For example, the Police and Criminal Evidence Act 1984 ( PACE ) empowers the court to grant production orders, allowing the police to obtain evidence connected with the commission of criminal offences (including terrorism). However, journalistic material falls within the categories of special procedure material or excluded material, as defined in ss.11-14 of PACE. Such material is provided with additional protections, and can only be seized if the stringent requirements of Schedule 1 of PACE are met. 7. Similarly, Schedule 5 of the Terrorism Act 2000 ( TA 2000 ) empowers the court to order the seizure or production of special procedure and excluded material for the purpose of a terrorist investigation, where there are reasonable grounds for believing that (a) the material is likely to be of substantial value to that investigation, and (b) it is in the public interest for the material to be disclosed, having regard to the benefit likely to accrue to the investigation, and the circumstances under which the person had the material in his or her possession. 8. In Malik v Manchester Crown Court [2008] EWHC 1362 (Admin), [2008] EMLR 19, Dyson LJ (as he then was) noted at [55] that Schedule 5 contains carefully drafted provisions which strike a balance between the object of enabling the police to conduct terrorist investigations effectively and respect for a journalist s Art. 10 rights. The Secretary of State 5 attempts to distinguish Schedule 5, with its express protection for journalistic material, from Schedule 7 on the basis that the latter s purpose is not to obtain evidence to use in legal proceedings. However, para.1(3)(a) of Schedule 5 permits the production of materials relevant only to a terrorist investigation, which may never lead to legal proceedings. And, as the Secretary of State acknowledges at [40], material found on a Schedule 7 search may be used in evidence in legal proceedings. The distinction is therefore unsustainable. 5 Detailed Grounds [37]. 4
9. Given the overlapping purposes of these various statutory provisions, Liberty submits that there is no rational basis for concluding that Parliament would have intended Schedule 7 to be applied to journalists and journalistic materials in such a way as to deprive them of the protections afforded by those other statutory provisions (including another Schedule of the same Act of Parliament). The well-known principle of legality applies here: the principle of statutory construction that fundamental rights are not overridden by general words, but only by clear and specific express words or (possibly) by necessary implication. In R v Home Secretary ex p Simms [2000] 2 AC 115, Lord Hoffmann explained the principle as follows: Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. [131E] 10. Accordingly, there are two options: (1) Parliament did not intend Schedule 7 to apply at all to journalists / journalistic materials, since it did not envisage or intend that it would be used against them. (2) Alternatively, if it does apply to journalists / journalistic materials, Schedule 7 must be read down (so far as is possible, under s.3 HRA) so as to comply with Article 10 of the Convention by providing appropriate protection. 11. If neither of those options is available then, for the reasons set out below, Schedule 7 is incompatible with Article 10 of the Convention. 2. The quality of law requirement 12. The quality of law requirement forms part of the rule of law 6, a concept inherent in all Articles of the Convention. This requires that, where they engage fundamental rights, national laws must be sufficiently accessible, precise and foreseeable in their application, and must provide effective safeguards against the risk of arbitrary interferences with Convention rights. This has been emphasised by the ECtHR on numerous occasions, including 6 Amuur v France (1996) 22 EHRR 533 at [50]. 5
most relevantly in Gillan ECtHR, in which the Court held that s.44 of the TA 2000 violated Article 8 of the Convention. Liberty submits that the Court s reasoning applies with equal force to the compatibility of Schedule 7 with Article 10. It is well-established that the quality of law requirement applies with equal vigour to Article 10 cases: see for example Telegraaf Media v The Netherlands, (App. No. 39315/06, 22 November 2012) at [90]. Further, the quality of law requirement cannot be considered in a vacuum: it must be assessed against the specific requirements of each individual Convention right. This includes the question of whether the provision in question contains safeguards which are effective to protect that right. In the present case, this exercise requires the Court to consider whether Schedule 7 provides sufficient safeguards for the protection of journalistic materials so as to comply with Article 10. This is not an issue raised in Beghal or Malik v UK. 3. Gillan HL versus Gillan ECtHR 13. For the reasons given below, Liberty submits that: (1) The reasoning of the Strasbourg Court in Gillan ECtHR is directly applicable to Schedule 7. The fact that the power at issue in Gillan (s.44 of the TA 2000) applies in the street and Schedule 7 applies at border points does not render Gillan ECtHR distinguishable, given the broad reasoning on which the Strasbourg Court reached its decision. (2) That reasoning indicates that, like s.44, Schedule 7 is incompatible with Article 10 of the Convention. 14. As to the approach which this Court should adopt on the conflict between the House of Lords and the Strasbourg Court on this point, Liberty submits that: (1) The decision of the House of Lords in R (Gillan) v Commissioner of Police of the Metropolis [2006] 2 AC 307 ( Gillan HL ) concerning s.44 is not binding on this Court as regards Schedule 7. (2) Alternatively, even if Gillan HL is considered to be binding, in light of the ECtHR s subsequent judgment in Gillan ECtHR, this Court is free to 6
express its views regarding the Article 10 compatibility 7 of Schedule 7, but should grant permission for an appeal to the Supreme Court. 8 4. The question of an effective remedy 15. As set out above, Liberty s primary position is that Schedule 7 is incompatible with Articles 5, 6, 8 and 10 of the Convention. Further, Liberty submits that a declaration of incompatibility does not provide an effective remedy for this incompatibility. For this reason, the applicant in Malik v United Kingdom took his complaint to the European Court of Human Rights without first pursuing any domestic remedies. The present submissions are advanced without prejudice to that position. 16. Nor would it be an effective remedy for the Claimant to obtain an individual declaration that the Schedule 7 power was misused in his particular case. The House of Lords in Gillan HL considered that the use of s.44 could be remedied by such a declaration 9, but in Gillan ECtHR, the Strasbourg Court considered that the possibility of such an individual remedy was not a sufficient safeguard to rescue s.44 from the risk of arbitrary misuse inherent in the legislation. 17. Nor is it an answer to say that Schedule 7 must be exercised compatibly with the Human Rights Act the same could be said of s.44 (and indeed of any statutory power with the potential to interfere with a Convention right). In Malik v Manchester Crown Court, the Divisional Court concluded that Schedule 5 was compatible with Article 10 because of the combined effect of the carefully drafted provisions which strike a balance between the object of enabling the police to conduct terrorist investigations effectively and respect for a journalist s Art. 10 rights, and the fact that the Article 10 balance would ultimately be struck by a court in deciding whether to grant a production order against someone holding journalistic material. The express statutory 7 See Divisional Court in R (GC) v Metropolitan Police Commissioner [2010] EWHC 2225 (Admin) a practice of which the Supreme Court did not disapprove in [2011] 1 WLR 1230. 8 See Kay v Lambeth London Borough Council [2006] 2 AC 456 at [28]. The Court of Appeal s power to depart from an otherwise binding ruling of the House of Lords/Supreme Court because of a subsequent inconsistent ECtHR decision was considered in R (Purdy) v DPP [2009] EWCA Civ 92 at [50]-[62] (not disputed by the House of Lords in [2010] 1 AC 345). 9 See Gillan HL at [14], [20] and [76]. 7
provisions were essential to the overall Article 10 compatibility of the Schedule. 18. Further, the fact that the Claimant may theoretically be able to seek and obtain an individual declaration that the power was misused in his particular case does not dilute the chilling effect 10, in Article 10 terms, of the legislation. The Court in Gillan ECtHR expressly recognised the formidable obstacles which an applicant faced in mounting a judicial review against the misuse of s.44 power to stop/search (without reasonable suspicion): [80]. Realistically, a person holding journalistic material who is stopped under Schedule 7 will need immediate access to high quality legal advice in order to mount a judicial review and associated application for interim relief in order to prevent the authorities from reading / copying any seized confidential material. 5. An analysis of Gillan ECtHR 19. Gillan ECtHR warrants close analysis, in order to appreciate the breadth of its reasoning and to demonstrate its applicability in this case. Gillan ECtHR concerned s.44 of the TA, which provided for stops and searches without reasonable suspicion, in areas subject to an authorisation under that section. The core conclusion of the ECtHR was that the interference with Article 8(1) constituted by s.44 was not in accordance with the law for Article 8(2) purposes, in that the provisions were neither sufficiently circumscribed, nor subject to adequate legal safeguards against abuse: [87]. It followed that s.44 was incompatible with the Convention: the use of the powers in any particular instance, however compliant with the enabling legislation, would necessarily be in violation of Article 8. 20. The Court recalled that the requirements of Article 8(2) were to be assessed in context and by reference to the nature and extent of the interference with Article 8(1) rights: the words in accordance with the law require the impugned measure both to have some basis in domestic law and to be compatible with the rule of law The law must thus be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual if need be with appropriate advice to regulate his conduct. 10 See e.g. Financial Times v UK [2010] EMLR 21 at [70]; Ashworth Hospital Authority v MGN Ltd [2002] 1 WLR 2033, HL at [61]. 8
For domestic law to meet these requirements it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise. The level of precision required of domestic legislation which cannot in any case provide for every eventuality depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed. ([76], emphasis added.) 21. This statement of principle did not differ materially from the approach of the House of Lords in Gillan HL. 11 The difference between the reasoning of the two Courts arose in respect of their Lordships conclusion that the provisions of the TA were subject to effective control, having regard to the relatively slight nature of the interference (if any) with Article 8(1). Lord Bingham identified 11 constraints on the potential abuse of power 12, while doubting that an ordinary superficial search of a person could engage Article 8(1) 13, and making clear that he considered the provisions in the context of the great danger of terrorism (an approach echoed by Lord Hope 14, Lord Scott 15 and Lord Brown 16 ). 22. By contrast, the ECtHR concluded that, notwithstanding the national security and terrorism context, the nature and extent of the safeguards in the relevant legislative scheme offered inadequate protection against the arbitrary use of the powers: in the Court s view, the safeguards provided by domestic law have not been demonstrated to constitute a real curb on the wide powers afforded to the executive so as to offer the individual adequate protection against arbitrary interference. [79] 23. There were two aspects to the ECtHR s analysis of the inadequacies of the legislative scheme: first in relation to the process of authorisation and review underlying the deployment of stop and search powers; second concerning the discretion afforded to individual officers in conducting stops and searches. 11 See for example Lord Bingham at [32] and at [34] and Lord Hope at [52]. 12 At [14]; noted in Gillan ECtHR at [16]. 13 At [28]. 14 At [53]-[56]. 15 At [63]. 16 At [74]. 9
The ECtHR found both aspects of the powers to be insufficiently circumscribed and lacking in adequate safeguards: [87]. 24. The ECtHR identified five deficiencies in the process of authorisation and review: (1) The senior police officer granting an authorisation under s.44(4) was not required to consider whether the relevant powers were necessary or proportionate: [80]. (2) The requirement for the Secretary of State to confirm an authorisation under s.46(4) was limited in scope and redundant in practice: [80]. (3) Formidable obstacles existed to challenging the powers of authorisation and confirmation by way of judicial review, given their breadth: [80]. (4) Temporal and geographical restrictions provided no real check on the issuing of authorisations, given the scope continually to renew the authorisation and its coverage of concentrated populations: [81]. (5) The Independent Reviewer was not granted any power to cancel or amend the authorisation: [82]. 25. Separately, and of particular concern to the ECtHR, was the breadth of the discretion conferred on an individual police officer in relation to the stop and search power itself. The Court highlighted five flaws in this regard: (1) An officer s decision to conduct a stop and search required neither objective, nor even subjective, suspicion about the person stopped and searched: [83]. (2) In order to use the power, the individual officer was not required to suspect (objectively or subjectively) the presence of the articles for which a search could be made: [83]. (3) The category of articles for which an officer could lawfully search was very wide : [83]. (4) Absent any requirement as to an officer s state of mind, it was likely to be difficult, if not impossible, to demonstrate for the purposes of judicial review that an individual officer had exercised the power improperly: [86]. (5) Code A of PACE governed only the mode of a stop and search, not an officer s decision to conduct a stop and search: [83]. 26. It was central to the ECtHR s conclusion that the scheme of the TA did not adequately curtail the risk that an individual police officer would use the 10
powers in an arbitrary fashion. It was not necessary, in the ECtHR s analysis, to demonstrate actual misuse. Nor was it sufficient that in any particular case the powers may be discharged in a Convention-compliant fashion. It was sufficient that the legislative scheme itself created the risk of abuse. That was the core of the ECtHR s reasoning, and one of the key errors in Gillan HL, which wrongly considered that it was an adequate safeguard that any misuse of the power (or its authorisation) could be cured by judicial review on an individual basis. 17 27. The conclusion of the ECtHR on this point was reinforced by the statistical evidence before the Court as to the possibility that the power was being used in a way which was discriminatory, and the danger that the power may be used to inhibit other Convention rights: In the Court s view, there is a clear risk of arbitrariness in the grant of such a broad discretion to the police officer. While the present cases do not concern black applicants or those of Asian origin, the risk of the discriminatory use of the power against such persons is a very real consideration There is, furthermore, a risk that such a widely framed power could be misused against demonstrators and protestors in breach of art.10 and/or 11 of the Convention. ([85], emphasis added.) 28. Given its overall conclusion on Article 8, the Court in Gillan ECtHR did not need to go on to consider the Article 10 compatibility of s.44, even though one of the applicants was a journalist. 29. Following Gillan ECtHR, s.44 was repealed in March 2011 18 and replaced by s.47a 19, which contains a requirement of reasonable suspicion. 6. Application of these principles to Schedule 7 and Article 10 30. The quality of law requirements of Article 10 are at least as exacting as those required for Article 8. A comparison between s.44 and Schedule 7 demonstrates that Schedule 7 suffers from the same defects which rendered s.44 incompatible with Article 8 of the Convention. Fundamental to the breadth of both powers is the fact that they may be exercised in the absence of any suspicion, let alone reasonable suspicion. In McVeigh v United 17 See Gillan HL at [14], [30] and [76]. 18 By SI 2011/631. 19 Inserted by the Protection of Freedoms Act 2012. 11
Kingdom App Nos. 8022/77, 8025/77, 8027/77, 18 March 1981 (a case which did not address Article 10 issues), the UK Government assured the Commission that a statutory regime resembling Schedule 7 20 was only used in practice where the examining officer had such a suspicion. No such assurance has been given in relation to Schedule 7, and indeed the relevant guidance emphasises that no such suspicion is required. 21 The absence from Schedule 7 of any requirement of suspicion was recently noted by the Supreme Court in R v Gul [2013] UKSC 64. Taken together with the fact that the power is not subject to any controls, this led the Court to comment that detention of the kind provided for in the Schedule represents the possibility of serious invasions of personal liberty : [64]. The Court also noted that: While the need to bestow wide, even intrusive, powers on the police and other officers in connection with terrorism is understandable, the fact that the powers are so unrestricted and the definition of terrorism is so wide means that such powers are probably of even more concern than the prosecutorial powers to which the [Terrorism] Acts give rise. [63] a. The process of authorisation and review 31. As to the deficiencies identified by the ECtHR in the process of authorisation and review ([24] above): (1) Schedule 7 does not require the involvement of a senior police officer in the granting of an authorisation, or any subsequent confirmation by the Secretary of State, because it does impose any requirement of authorisation at all. The availability of the Schedule 7 powers is not tailored to the particular risk which is extant at the time. (2) Schedule 7 contains no express Article 10 protections for journalistic material, even though those carrying such material will inevitably pass through ports at which the power operates. (3) The Schedule 7 power is directly conferred on an examining officer 22 who does not have any particular knowledge or experience of dealing with journalistic material. 20 in the Prevention of Terrorism (Supplementary Temporary Provisions) Order 1976. 21 See for example the Examining Officers under the Terrorism Act 2000 Code of Practice, paras 9 and 10 and accompanying notes. 22 Defined in Sch.7, para. 1(1) as a constable, immigration officer or designated customs officer. 12
b. The risk of arbitrariness 32. As to the problems identified by the ECtHR concerning the over-breadth of the discretion conferred on an individual officer: (1) Like s.44, an officer s decision to conduct a stop under Schedule 7 requires neither objective, nor even subjective, suspicion about the person stopped and searched. In fact, the power is to be used to determine whether a person appears to be, or have been, concerned in the commission, preparation or instigation of acts of terrorism. This means that, at the time when the person is stopped, he or she need not even appear to be so concerned. This gives rise to a clear risk of arbitrariness. This risk is enhanced given the concerningly wide definition of terrorism contained in s.1 of the TA 2000. 23 (2) The examining officer is not required to take into account any Article 10 considerations, including the need to protect journalistic rights. 24 (3) The Independent Reviewer has no power to challenge or review the use/misuse of the power in an individual case. (4) Like s.44, given the breadth of the Schedule 7 power, it is likely to be difficult to demonstrate for the purposes of judicial review that an individual officer has exercised the power improperly: see Gillan ECtHR at [80]. c. The reasoning in Beghal does not address Article 10 33. Critically, none of the additional practical safeguards identified and relied on by the Divisional Court in Beghal at [90] and [98], when distinguishing Gillan ECtHR, provide any meaningful fetter on the arbitrary use of the power, nor do they address the need for additional protection for Article 10 rights: 23 R v Gul [2013] UKSC 64, per Lord Neuberger and Lord Judge at [38]. Without commenting in detail on the specific facts of this case, Liberty notes the lack of clarity in both Defendants evidence as to how the facts of the Claimant s case fall within the scope of the TA 2000 so as to justify the use of Schedule 7 powers against him. It is clear that the Security Service had only identified national security concerns in their initial decision-making, until it was pointed out to them that Schedule 7 was confined to terrorism cases: see witness statement of A at [11]-[15]. When terrorism grounds were (belatedly) advanced, it is not clear precisely what these were. 24 The Examining Officers Under the Terrorism Act 2000 Code of Practice states, in the notes for guidance on paragraphs 9 and 10, that The powers must be used proportionately, reasonably, with respect and without unlawful discrimination. The NPIA Practice Advice on Schedule 7 of the Terrorism Act 2000 simply states that The Human Rights Act (HRA) 1998 is directly relevant to the use of Schedule 7 and all officers involved in the use of the power should ensure that they fully comply with the Act. [p.8] 13
(1) The Schedule 7 Code of Practice does not provide any particular provision for safeguarding journalistic rights. (2) The Independent Reviewer s annual statutory reviews of the operation of Schedule 7 have not addressed Article 10 / journalistic concerns. (3) The limited class of persons to whom Schedule 7 applies will necessarily include those holding journalistic material who pass through ports. (4) Those exercising the Schedule 7 power have no particular knowledge or experience of dealing with journalistic material. d. The absence of effective Article 10 protection in Schedule 7 34. The vital importance of independent journalism in a democracy, including the protection of journalists confidential sources and materials, is dealt with by the Claimant at [74]-[100] of his Grounds, and, it is anticipated, will also be considered in detail by the other interveners. In order not to duplicate submissions, Liberty does not repeat the general principles established by the Strasbourg and domestic caselaw. 35. There is no indication that Parliament intended to single out Schedule 7 powers to override journalistic protection, when Schedule 5 includes express protection for journalistic activities, as does PACE. The Secretary of State s attempt to distinguish Schedule 7 from those other provisions is unconvincing: see [8] above. Assuming Schedule 7 does apply to those holding journalistic material, then it violates Article 10: (1) It is over-broad and open to arbitrary use in journalistic cases, for the reasons outlined above. (2) In addition, it contains insufficient safeguards to protect Article 10 rights. 36. The Court must, of course, consider the legislation in force at the relevant time. Nevertheless, it is notable that none of the amendments to Schedule 7 proposed by the Government in the Anti-Social Behaviour, Crime and Policing Bill ( the Bill ) specifically address Article 10 concerns. The Bill introduces: (1) The use of specially designated and trained immigration officers. (2) The reduction in total detention time from nine to six hours and the new rules for reviewing Schedule 7 detention. 14
(3) A right for those examined at ports to have someone informed and to consult a solicitor. (4) The removal of the power to take biometric samples. (5) A requirement that an examining officer who is a constable may make and retain copies of any property seized under Schedule 7 only for so long as is necessary to determine whether the person has been involved in terrorism, or for use in criminal proceedings, or in connection with deportation. 37. The Joint Committee on Human Rights, in its recent report on the Bill 25, noted the absence from Schedule 7 of any protection for journalistic material (among other categories of confidential material) held on personal electronic devices: [120]. It concluded that the current power in Schedule 7 to access, search, examine, copy and retain data held on such devices is so wide as not to be in accordance with the law [122], and should only be exercisable on reasonable suspicion. In reaching this conclusion, the Committee internally divided up the Schedule 7 powers and considered that only the more intrusive powers needed a requirement of reasonable suspicion in order to comply with the Convention: [112]-[113]. Liberty submits that this division is artificial and is unsupported by the Strasbourg caselaw: in Gillan ECtHR, the Court did not draw any distinction between intrusive and cursory searches, and the actual searches of the applicants were not significantly intrusive (although were highly coercive). Known sources and unlawfully obtained material 38. For the reasons summarised below, Liberty considers that the absence of journalistic safeguards in Schedule 7 means that the power is inherently incompatible with Article 10, regardless of its use in any given case. Although Liberty as an intervener does not intend to make any detailed submissions on the facts of the Claimant s case, it notes that the Secretary of State attaches particular legal significance to: (1) The fact that Edward Snowden is a known, not a confidential, source: Detailed Grounds [72]. 25 Legislative Scrutiny: Anti-social Behaviour, Crime and Policing Bill, Fourth Report of Session 2013-14, HL Paper 56, HC 713. 15
(2) The fact that the material which the Claimant was carrying is alleged to have been unlawfully obtained: Detailed Grounds [51]. 39. Liberty considers that neither of those factors renders Article 10 inapplicable or more limited in its application. Article 10 applies to confidential journalistic material, not only to confidential journalistic sources. As the Divisional Court expressed it in Malik v Manchester Crown Court (which related to the seizure, under Schedule 5, of material provided to the claimant by a known source, Hassan Butt): The importance of the [Article 10] right and the weight of the justification required for an interference that compels a journalist to reveal confidential information about or provided by a source has been frequently stated both in Strasbourg and in our courts. ([50], emphasis added). 40. In R (Bright) v Central Criminal Court [2001] 2 All ER 244, the source (David Shayler) was known, but there was detailed consideration of journalistic rights. Recently, in Nagla v Latvia, (App. No. 73469/10, 16 July 2013), the ECtHR applied Article 10 to the search of the home of the applicant journalist, notwithstanding the fact that the identity of the source of the materials seized had already been identified: [78]-[82]. The Court recalled that it: has already found that Article 10 of the Convention does not only protect anonymous sources assisting the press to inform the public about matters of public interest (see Nordisk Film & TV A/S v Denmark, App. No. 40485/02). In that case the Court considered that Article 10 of the Convention applied even when a journalist had worked undercover and had used a hidden camera to film participants in a television programme, who could thus not be regarded as sources of journalistic information in the traditional sense. It was rather the compulsory handover of his research material that was susceptible of having a chilling effect on the exercise of journalistic freedom of expression. ([80], emphasis added.) 41. The protection of confidential information about or provided by a source is essential for the effective protection of journalists. Otherwise, information provided in confidence by a source would lose all Article 10 protection the moment the identity of the source became known. There is no reason for the revelation of the identity of the source to destroy the confidentiality of the information which he or she has provided: this would fundamentally undermine the rationale for protecting such material in the first place. 16
42. The Article 10 caselaw also establishes that a journalist is entitled to protection of confidential material obtained from a source who may themselves have acted unlawfully. In Tillack v Belgium (App. No. 20477/05, 27 November 2007) (2012) 55 EHRR 25, the ECtHR emphasised that a journalist s right not to reveal her or his sources could not be considered a mere privilege to be granted or taken away depending on the lawfulness of unlawfulness of their sources, but was part and parcel of the right to information, to be treated with the utmost caution [65]. See also Radio Twist v Slovakia App. No. 62202/00, 19 Dec 2006 (2006) 22 BHRC 396 at [62], in which the Court found a violation of Article 10 by reason of a defamation action brought against a radio station which had broadcast unlawfully recorded conversations: The Court further observes that the applicant company was penalised mainly for the mere fact of having broadcast information which someone else had obtained illegally. The Court is however not convinced that the mere fact that the recording had been obtained by a third person, contrary to law, can deprive the applicant company of the protection of Article 10 of the Convention." 43. In Malik v Manchester Crown Court, Hassan Butt had admitted his involvement in a range of serious offences, including terrorism offences and murder; the materials he provided to Mr Malik dealt in detail with his offending; and the Court proceeded on the basis that the journalist himself was at risk of prosecution for not having notified the authorities upon having received the terrorism-related material. Likewise in Bright, the source had acted unlawfully in making disclosure and was duly convicted of an Official Secrets Act offence, but that did not dilute the journalist s Article 10 protection. 44. The need for such protection is obvious: in very many cases, in providing a journalist with the information on which a story of great public interest is based, a source will have acted unlawfully. To take a recent example, the information which led to the parliamentary expenses scandal was obtained by the Daily Telegraph paying 110,000 to a source employed by the parliamentary expenses office. 26 In the absence of any express defences to bribery in the case of public interest journalism, this conduct could amount to a range of potential criminal offences. 27 However, material obtained in this 26 http://www.theguardian.com/media/2009/sep/25/telegraph-paid-11000-mps-expenses. 27 e.g. under the Bribery Act 2010, the Data Protection Act 1998 and the common law offence of misconduct in public office. 17
way would be entitled to full Article 10 protection, following cases such as Tillack. Such protection is provided in domestic law by the fact that, as special procedure material, the material could only be seized if the requirements of PACE were made out (see [6] above). There is no suggestion in PACE, or in Schedule 5 of the TA 2000, that the unlawfulness of the conduct of the source in obtaining the material, or in providing it to the journalist, deprives that material of Article 10 protection. The lack of procedural safeguards 45. Article 10 does not require the absolute protection of confidential journalistic sources or materials: as a qualified right, there is a balance to be struck under Article 10(2), and journalistic protection can be overridden where this is necessary and proportionate. This raises the question of how, and by whom, such a judgement should be made. The Defendants case is unclear in this regard, but must impliedly amount to an assertion that the Article 10 balancing exercise can properly be undertaken by the designated officer on the ground, however junior he or she may be. 46. The ECtHR has emphasised the stringent procedural safeguards required for the protection of journalistic sources in the Telegraaf Media case. There, the applicant journalists had been placed under surveillance in order to identify their sources. The Court held that in a field where the potential for abuse was so great and could have such harmful consequences for democratic society as a whole, supervisory control should be entrusted to a judge or adequate independent authority: [98]. In the applicants case, the use of special powers had been authorised without prior review by an independent body: [100]. Moreover, the Court held that ex post facto review could not have restored the confidentiality of journalistic sources once it had been destroyed: [101]. The Court therefore concluded that there had been a violation of Articles 8 and 10. 47. The Claimant has considered in detail the decision of the Grand Chamber of the ECtHR in Sanoma Uitgevers BV v The Netherlands, App. No. 38224/03, (2010) 30 BHRC 318: Grounds [85]-[93]. This decision establishes that any interference with the right to protection of [confidential journalistic] sources must be attended with legal procedural safeguards commensurate with the 18
importance of the principle at stake [88]; and that [f]irst and foremost among these safeguards is the guarantee of review by a judge or other independent and impartial decision-making body [90], before such material is handed over [91]. The reviewing body should be: separate from the executive and other interested parties, invested with the power to determine whether a requirement in the public interest overriding the principle of protection of journalistic sources exists prior to the handing over of such material and to prevent unnecessary access to information capable of disclosing the sources identity if it does not. [90] 48. The Secretary of State criticises the Claimant for seeking to interpret Sanoma as imposing a blanket rule of law that there must always be a court order before journalistic material is seized : Detailed Grounds [75]. However, the material in Sanoma was relevant only to a criminal investigation: no prosecution had been commenced. This is exactly what Schedule 5 of the TA 2000 permits (contrary to the Secretary of State s submissions at [37]: see [8] above). This illustrates why Schedule 7 ought to afford the same protection as Schedule 5, given that material obtained under Schedule 7 can be used in a criminal investigation, whether or not it is ultimately used in evidence at a criminal trial. 49. In attempting to distinguish Sanoma, the Secretary of State relies at [76] on the recent decision in Nagla v Latvia. In that case, the ECtHR held that, in principle, the search of the applicant journalist s premises and seizure of her confidential journalistic material met the prescribed by law requirement. The search had been authorised under the urgent procedure 28, which allowed a warrant to be issued by the investigating authority itself, as long as the investigating judge reviewed the case on the day following the search. At [88], the Court held that this was sufficient, on the facts of the case, since the judge s independent review would be carried out at the very least prior to the access and use of obtained materials, which should be sufficient to determine whether any issue of confidentiality arises, and if so, whether in the particular circumstances of the case the public interest invoked by the 28 c.f. Schedule 5 TA at paras 15-16 (the compatibility of which with Article 10 has not been tested), which permits searches authorised by a superintendent, but only in cases of great emergency where immediate action is necessary. The use of this exceptional power must be notified to the Secretary of State. Search warrants are also subject to quashing (on e.g. Article 10 grounds) on judicial review. See also Roemen & Schmit v Luxembourg (App. No. 51772/99, 25 February 2003) in which the ECtHR found a violation of Article 10 where a judicially issued search warrant was disproportionate and a production order should have been used instead. 19
investigating or prosecuting authorities outweighs the general public interest of source protection, as required by Sanoma at [91]. Nagla therefore demonstrates that, although in an exceptional case journalistic materials may be physically seized before judicial oversight has taken place, such oversight ought to take place before the access and use of those materials. This preserves the essence of their confidentiality and is, therefore, an additional safeguard required in order to comply with Article 10. 50. The Court in Nagla also emphasised that the reviewing judge had the power to revoke the search warrant, declare the seized material inadmissible, and to withhold the identity of journalistic sources. This package of safeguards, in an urgent case, met the requirements of Article 10 (although on the facts there had been a violation, since relevant and sufficient reasons had not been given for the interference: see [93]-[102]). 51. The debate about whether there need always be prior judicial oversight of seizures of journalistic material is of limited relevance to the present case, given that Schedule 7 incorporates no procedure at all for judicial oversight, whether prior to, or immediately after, the power has been exercised. None of the Nagla safeguards apply to a Schedule 7 case: of particular relevance, there is no provision for judicial scrutiny of seized materials prior to their access and use. A Schedule 7 examination allows the confidentiality of such materials to be destroyed immediately during the detention. IV. CONCLUSION 52. For all the reasons given above, Liberty submits that Schedule 7 is incompatible with Article 10, and that its use in this case clearly demonstrates the lack of effective safeguards for journalistic materials and the risk of arbitrariness inherent in such an over-broad, disproportionate power. ALEX BAILIN QC ALISON MACDONALD Matrix Chambers 25 October 2013 20