Matrix Chambers’ Matthew Ryder has lost a High Court battle brought by Guardian journalist Glenn Greenwald’s partner David Miranda over his detention at Heathrow Airport under the Terrorism Act 2000.
Miranda was held for nine hours last August when carrying whistleblowing documents for Greenwald from Berlin to Rio de Janeiro, where he lives with the reporter.
Today (19 February) the High Court rejected Ryder’s argument that Miranda’s detention and the seizure of encrypted storage devices were unlawful and a breach of human rights. Lord Justice Laws ruled that his detention did fall within schedule 7 of the Terrorism Act and disagreed with Ryder’s argument that Miranda’s detention violated his freedom of expression.
Ryder and 39 Essex Street’s Steven Kovats QC, instructed by Treasury Solicitor Zaqia Rashid, went head to head to argue whether the documents counted as “journalistic material” and whether the actions were proportionate. Ryder teamed up with Edward Craven and Raj Desai of the same set.
They faced off against Kovats QC and 6KBW’s Julian Blake for the Home Office and 5 Essex Court’s Jason Beer QC for the Metropolitan Police Commissioner along with Three Raymond Building’s Ben Brandon and Ben Watson, instructed by the Directorate of Legal Services solicitor Mark Spanton.
Laws J accepted that “the Schedule 7 stop constituted an indirect interference with press freedom”, but said, “it is shown by compelling evidence to be justified.” He concluded that the stop “was a proportionate measure in the circumstances.”
Miranda was held under schedule 7 of the Terrorism Act 2000, which only applies at airports, ports and border areas and is used for determining whether suspects are “concerned in the commission, preparation or instigation of acts of terrorism”.
The event followed a flurry of communications between the police and the Security Service outlining concerns that Miranda was carrying information from whistleblower Edward Snowden which could fall into the hands of Al Qaeda.
On Friday 16 August 2013, two days before his detention, the Security Service sent a note to the police recommending, “proposed action around David Miranda”.
The note said: “We strongly assess that Miranda is carrying items which will assist in Greenwald releasing more of the NSA and CGHQ material we judge to be in Greenwald’s possession. Our main objectives against David Miranda are to understand the nature of any material he is carrying, mitigate the risks to national security that his material poses…”
It continued: “We judge that a ports stop of David Miranda is the only way of mitigating the risks posed by David Miranda to UK national security. Additionally there is a substantial risk that David Miranda holds material which would be severely damageing to UK national security interests.”
The day before he was stopped, the service sent a final note which said: “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.”
Two days later Bindmans associate Gwen Morgan was instructed with Matrix Chambers’ Ryder QC and Craven to secure a partial injunction limiting the examination of the documents (22 August 2013). At the hearing before Lord Justice Beatson and Mr Justice Kenneth Parker, Miranda was granted an injunction stopping the Metropolitan Police and the Government from, “inspecting, copying or sharing” data, except for national security purposes.
In today’s judgment Laws J acknowleged that: “The bare proposition that the definition of terrorism in s.1 is very wide or far reaching does not of itself instruct us very deeply in the proper use of Schedule 7” but concluded that Miranda’s detention was lawful.
Much of the debate hinged on whether Miranda was engaged in responsible journalistic activity which he said could not be classed as engaging in terrorist activity.
Ryder submitted that the stop was, “a disproportionate interference with his client’s right to “the protection of journalistic expression”. Laws J agreed that “the protection of journalistic expression is an important sub-class of the law’s more general care for free speech”, but added that, “the journalist enjoys no heightened protection for his own sake, but only for the sake of his readers or his audience.”
In a witness statement on 23 October 2013 Greenwald had said: “Not to publish material simply because a government official has said such publication may be damaging to national security is antithetical to the most important traditions of responsible journalism.”
He added: “It is absurd to suggest that because the material, if it ever fell into the hands of terrorist, could in theory be used for terrorist purposes, then there is a justification for using counter-terrorist measures to take that material from responsible journalists publishing material through respected international media organisations.”
However Laws J was not persuaded by the evidence which he castigated as “unhelpful”, accusing Greenwald and Miranda of accusing the defendants of “bad faith”.
Miranda has pledged to appeal the case. The High Court refused him permission to take the case to the Court of Appeal but he can petition the court directly to ask it to hear the case.
The legal lineup
For the claimant David Miranda
Matrix Chambers’ Matthew Ryder QC, Edward Craven, Raj Desai, Bindmans associate Gwendolen Gwynn-Morgan
For the (1) defendant Secretary of State for the Home Department
39 Essex Street’s Steven Kovats QC, 6KBW Julian Blake, Treasury Solicitor Zaqia Rashid
For the (2) defendant Commissioner of the Police of the Metropolis
5 Essex Court’s Jason Beer QC, Three Raymond Buildings’ Ben Brandon and Ben Watson, Directorate of Legal Services solicitor Mark Spanton
For the intervener (1) Liberty
Matrix Chambers’ Alex Bailin QC, Alison Macdonald
For the intervener (2) English Pen, Article 19 & Media Legal Defence initiative
4 New Square Can Yeginsu, Anthony Jones, Matrix Chambers’ Guy Vassall-Adams, Doughty Street Chambers’ Tim Cooke-Hurle