David Miranda’s grounds for judicial review

Here’s the full statement of facts and grounds – drafted by Matthew Ryder QC, Edward Craven and Raj Desai, all of Matrix Chambers – in support of David Miranda’s judicial review claim, due to be heard this week. Miranda is challenging his questioning and detention under Schedule 7 of the Terrorism Act 2000.

A summary of my comments on David Miranda’s legal arguments is underneath the viewer. Click on the bottom left of the viewer if you want to see the document in fullscreen view, together with my detailed comments.

David Miranda is running three arguments, essentially.

First he argues that Schedule 7 powers were used in his case for an improper purpose – to get hold of the documents he had on him in electronic form, rather than truly to ask whether he was a person involved in terrorism as required by Schedule 7 paragraph 2. This an argument based solely on domestic public law, not human rights principles.

Second, he argues that Schedule 7 is incompatible with freedom of expression under article 10 of the European Convention on Human Rights, since guidance on its use is unclear and procedural safeguards prior to seizure of material are insufficient, particularly in the light of the case of Sanoma Uitgevers v the Netherlands.

Third, he argues that even if Schedule 7 can be read as compatible with article 10, its use in his case was neither justified nor proportionate to any legitimate national security aim. Earlier his lawyers had intended to argue that Schedule 7 does not apply to passengers in transit, but it seems that line of argument has now been abandoned and will not feature in court this week.

Of these I think the first argument on improper purpose is his strongest, and will most worry the government and police. Whether it succeeds will depend on the judges’ reading on the evidence in front of them – for instance what’s written in the Port Circulation Sheet and intelligence assessments referred to at the hearing last week – as well as their assessment of what government and police witnesses have said in their statements.

The human rights arguments, which rely on the high level of protection given to journalistic material, face more difficulties. They’re also alternatives, though basically elided in the facts and grounds.

Under the Human Rights Act 1998 – and this is a point not always clearly understood even by many lawyers – if a piece of legislation is itself incompatible with human rights, then anything done under it is lawful in human rights terms in the UK. This is why, for instance, prisoners still don’t have the vote: the legislation that bans them from voting has itself been ruled incompatible with human rights, so it’s lawful here to keep denying it to them. This approach seems odd, but it’s been done deliberately so as to preserve Parliament’s ability to make law in the UK in breach of human rights, if it really wants to. The precise provision which has this effect is section 6(2)(b) of the Human Rights Act.

So, to successfully argue that Schedule 7 is incompatible with freedom of expression would be a good “campaigning” result, since it’d have political consequences going beyond this case. But it’d mean that the police acted lawfully in questioning him, in domestic human rights law terms. David Miranda would get nothing for breach of his human rights.  You may need to read that again! I do mean it. Since he’d have been questioned lawfully, he could not be entitled to any remedy in domestic human rights law other than a declaration of incompatibility.

It’s only if Schedule 7 is compatible with human rights that the use of it in this case could be disproportionate and so unlawful in UK human rights terms. So succeed in a the alternative argument that article 10 was breached in his specific case would mean David Miranda might obtain some powerful remedies – he’s asking for all material taken from him to be destroyed and copies recalled from foreign secret services – but it would also mean Schedule 7 passed muster in principle.

I expect the judges to press Miranda’s lawyers on which argument they think is actually correct, and which is their back-up.

But of course as well as his human rights arguments, Miranda is running the purely domestic “improper purpose” argument. If that succeeds then his other remedies – such as the mandatory destruction and recall order – could be granted. And if the judges rule Schedule 7 incompatible as well, he’d have achieved the political impact of a “campaigning” victory against the legislation. So there is a way  David Miranda could have and eat his legal cake in terms of remedies in this case. Remedies in judicial review are discretionary, mind – so if he wins the judges won’t be forced to make any particular order, but will make whatever order they think is appropriate.

In my view the human rights arguments, though they may well take up a lot of this week’s hearing, are the less powerful side of David Miranda’s case. The case law is against him in relation to rights other than freedom of expression, and even as far as freedom of expression is concerned, it’s not obvious that the key case he relies on, Sanoma Uitgevers, really helps. That’s firstly because it focuses on the protection of the identity of journalists’ sources, which arguably isn’t in question here, and because the procedural safeguards it suggests ought to be available before seizure – review of the material in question by a judge or independent reviewer – would seem impossible to operate in a case like this involving many thousands of encrypted documents.

The old-fashioned domestic improper purpose argument seems to me the stronger part of David Miranda’s case. Whether it works will turn what the judges make of the evidence before them later this week.