Here are David Miranda’s grounds in support of his application to the Court of Appeal, for permission to appeal against the Administrative Court’s dismissal of his judicial review. They were drafted by Matthew Ryder QC, Edward Craven and Raj Desai, all of Matrix Chambers. Miranda continues to challenge his questioning and detention last year under Schedule 7 of the Terrorism Act 2000.

The grounds essentially restate in a slightly different form the same six legal points that were made in his failed application for permission from the Administrative Court immediately after the judicial review.

First, Miranda’s lawyers argue that Lord Justice Laws erred, and failed to reflect the principle laid down in O’Hara v RUC, when he ruled that the knowledge and purposes of senior officers – not just of the constables who carried out the stop – are relevant to whether the purpose of detention was lawful.

Second, they raise detailed points 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. They’ve now also added the argument that his reliance on the reasoning and aims of the Security Service took him outside the proper Schedule 7 purpose.

Third, 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 go on to argue that Laws LJ gave too much weight, when assessing the proportionality of the stop, to government and police claims about national security – and not enough weight to the evidence before him, including evidence about responsible journalism.

Fourthly, they say Laws LJ was wrong in his approach to Schedule 5 of the 2000 Act and its potential application to this case. As part of that ground they in effect restate, fifthly, 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.

Finally, David Miranda’s lawyers again argue that Schedule 7 is incompatible with human rights, relying on the fact that the Supreme Court will already hear this argument (in the Beghal case) in relation to the right to respect for private life and the right of personal liberty – as well as on freedom of expression.

As I’ve said before, I don’t think all these grounds are very strong. I think it’s unlikely that the Court of Appeal will actually reverse Laws LJ’s judgment. But I’d be surprised if the O’Hara point – has Laws LJ wrongly included the knowledge of too many officers in working out the actual purpose of the stop? – and the point about the need for authorisation by a judge aren’t enough to get permission.

2016-01-19T16:31:31+00:00