Here’s David Miranda’s application to the Court of Appeal* – drafted by Matthew Ryder QC and Edward Craven of Matrix Chambers – for permission to appeal against today’s Administrative Court judgment. The court today dismissed his judicial review challenge to his questioning and detention last August under Schedule 7 of the Terrorism Act 2000.

The application relies on six legal points raised by the judgment, which David Miranda’s lawyers say should be considered on appeal.

First, it picks up on Lord Justice Laws’s conclusion that the knowledge and purposes of senior officers – not just of the two constables who carried out the stop – are relevant when considering whether the purpose of detention was lawful. Miranda’s lawyers say Laws LJ’s approach does not reflect the principle laid down in O’Hara v RUC, that what matters (in that case, in relation to an arrest) is (in Lord Hope’s words)

what is in the mind of the arresting officer when the power is exercised. … the application of the objective test does not require the court to look beyond what was in the mind of the arresting officer. It is the grounds which were in his mind at the time which must be found to be reasonable grounds for the suspicion which he has formed. All that the objective test requires is that these grounds be examined objectively and that they be judged at the time when the power was exercised.

Second, it raises detailed questions about what was in the Detective Superintendent’s mind, and whether he misunderstood the law or reasoned speculatively in such a way as to taint the lawfulness of the stop.

Thirdly, David Miranda’s lawyers argue that questions of the human rights compatibility of Schedule 7 are of such importance that they either will already be heard by the Supreme Court (in the Beghal case) or raise separate issues – specifically journalists’ freedom of expression – that ought similarly to be heard by an appeal court.

Fourthly, they say Laws LJ’s approach to Schedule 5 of the 2000 Act and its application to what he called “stolen” raw material raises novel and far-reaching issues.

They return to their argument based on Sanoma Uitgevers, Telegraaf Media and Nagla v Latvia that the use Schedule 7 must be authorised by a judge, in order to be human rights-compatible – an argument I said earlier Laws LJ rejected in perhaps the most weakly-reasoned passage in his judgment.

And finally, they pick up on Laws LJ’s doubts about Lord Sumption’s “fourth” requirement of proportionality (in Bank Mellat v HM Treasury, para. 20), that

(iv) … a fair balance has been struck between the rights of the individual and the interests of the community.

They stress of course the public interest in the case, and the interest of MPs and the independent reviewer of terrorism legislation, David Anderson QC.

I don’t think all these arguments hold a lot of weight: the points on what was in the Detective Superintendent’s mind and on Schedule 5 seem to me unlikely to take the legal arguments much further, and the proportionality issue, fascinating as it is for public law nerds, is unlikely to be decisive. But the O’Hara point – has Laws LJ wrongly considered the purposes of all the officers involved? – seems more substantial, as does the point about authorisation by a judge, which I’m not sure Laws LJ’s judgment dealt with really convincingly.

I’ll be surprised if permission’s refused by the Court of Appeal*.

*I initially thought this document (which I found here) was the application to the Court of Appeal. But as @SillySodz said on Twitter, it must in fact be the application to the Administrative Court (which has already been refused). Both the heading of the document and its date support that. In the heat of yesterday I didn’t scrutinise it as closely as I should, and I made a silly mistake. Sorry. I decided to edit the post slightly (as you can see) to remove the mistake, which has now been confirmed by Bindmans. I think my discussion of the grounds (which may be largely repeated to the Court of Appeal) is worth keeping up.

2014-02-20T19:21:15+00:00