Democracy damned?

Mark Stephens says the High Court dismissal of the Miranda judicial review represents a sad day for democracy

On Wednesday (19 February) the High Court handed down the much-anticipated judgment in David Miranda’s judicial review case, which raises significant legal questions surrounding anti-terrorism laws and freedom of the press. 

Miranda, Guardian journalist Glenn Greenwald’s partner, was detained at Heathrow Airport in August by the Metropolitan police under controversial counter-terrorism powers (Schedule 7 of the Terrorism Act 2000).  Miranda was apparently known to be carrying the product of journalistic endeavours.

He was not only held and questioned relentlessly for (the maximum) nine hours; the material that he was carrying (which included highly sensitive journalistic documents) was seized and kept along with other material, which could have potentially compromised journalistic sources unrelated to the investigation. 

A huge media campaign, led by the Guardian newspaper, ensued closely followed by Miranda’s launching of judicial review proceedings against the police and Home Office challenging the use of Schedule 7 powers against him.

Miranda, at the time that he was detained, was in possession of important documents in relation to investigative journalism for which he was assisting.

The files that were seized were further evidence required by the Guardian and other international media outlets to reveal to the world the covert surveillance by secret services of not only ordinary citizens and businesses but also world leaders. 

This has subsequently caused a worldwide media debate about the lawfulness behind the secret services’ powers to monitor what the general public and government officials around the world believed to be private emails, profiles and online material, and the use of such powers to gag the press.

There appears to have been a duality of purpose in what seems uncontestably a shakedown of an inconvenient journalist, as well as an attempt to gain control over some information released by Edward Snowden, albeit that the self-same material was secured elsewhere in the world, and so the actions were known never to have been able to preclude publication.

Miranda argued to the High Court that the legislation used to detain him was unlawful and used by the Government in order to obtain documents that would most certainly have been denied to them by the Court had they applied.

He also firmly stated that he believed that the decision to detain him under terrorism laws was an interference with freedom of expression rights and that the legislation ought to be reviewed – an argument, initially denied by the High Court in November but later granted by the Supreme Court at appeal, to directly challenge Schedule 7’s compatibility with the Human Rights Act.

The judgment, proved to be a very sad day for journalism and freedom of expression with an eliding of journalism and terrorism.  It is trite but true, that it is, as the NSA’s own lawyer announced, for Governments to keep their secrets and the press to publish in the public interest if Governments fail in their endeavours of secrecy.

The material seized from Miranda was in the public interest of the highest order – people have the right to know if they are being snooped on – and to have in place proper checks and balances which draw a proper line between the individuals’ rights and those of the State. 

Whilst, there is no denying that anti-terrorist laws are vital to preserve national security they need to be applied legally and within a well-defined framework, and this case certainly demonstrates otherwise.

Lawful judicial processes, democratic checks and balances exist if a government feels the need to tap in to a telephone exchange to record a call or to intercept a citizen’s post.

The court, through this judgment, has in effect allowed the State to freely scoop-up electronic communications in the form of our personal emails (including lawyer/client communications), texts, meta data (which geographically locates each individual) and biographical data (determining gender, interests and the like). This cannot be right in a democratic society.

Despite the judgment paying lipservice to recognition that a modern, democratic society requires a free media it now leaves no room for investigative journalism. 

The problem that we are now facing is that journalism is at risk of not only being gagged and sources outed but also of being mistaken as terrorism when it touches upon issues inconvenient and sensitive to a Government.  It also raises questions as to how investigative journalistic material will be safeguarded and for this the Government needs to be very concerned.

Investigative journalism will not fade away, and the media, quite rightly, will not pander to only divulge information that the Government and secret services deem appropriate but will find new (and possibly more dangerous) ways to conceal and safeguard their information when travelling via the UK.

In the worst of all possible outcomes, reckless journalists and bloggers may be provoked to seek protection for themselves by just making raw data available on the internet without any redactions or self-restraint and editing shown so skilfully and properly employed by the Guardian, New York Times, Der Spiegal, Le Monde, Dagens Nyheter, La Stampa, La Repubblica, El Pais, Washington Post and many, many others.

HowardKennedyFSI partner Mark Stephens