Victory for press freedom as appeal court rules Schedule 7 incompatible with Article 10 of Human Rights Act

The power to stop, search, detain, question and seize documents from anyone travelling through a UK airport under Schedule 7 of the Terrorism Act 2000 is incompatible with Article 10 of the Human Rights Act, the Court of Appeal has ruled today.

In a landmark judgment regarding David Miranda’s 2013 detention at Heathrow Airport, the Court found that the controversial power is not subject to adequate safeguards to stop it being used arbitrarily against journalists – an argument put forward by Liberty in its intervention in this case.

Rosie Brighouse, Legal Officer for Liberty, said: “This judgment is a major victory for the free press. Schedule 7 has been a blot on our legal landscape for years – breathtakingly broad and intrusive, ripe for discrimination, routinely misused. Its repeal is long overdue.

“It is also a timely reminder of how crucial the Human Rights Act is for protecting journalists’ rights. Once again it has come to the rescue of press freedom in the face of arbitrary abuse of power by the State.”

Background

David Miranda was detained for nine hours by police at Heathrow Airport in August 2013. He was questioned under Schedule 7 and freed only when officers reached the legal time limit for either arresting or releasing him.

His electronic equipment – which included a hard drive carrying encrypted journalistic material derived from Edward Snowden – was confiscated, and he was questioned for long periods without a lawyer present.

Miranda was helping the work of his partner, journalist Glenn Greenwald, who had recently written several stories about the Snowden surveillance revelations for The Guardian. When detained, he was on the way back to Rio de Janeiro after meeting filmmaker Laura Poitras – director of Oscar-winning documentary Citizenfour – in Berlin.

Today’s judgement

In its intervention, Liberty argued that Schedule 7 is unlawful because it is not subject to sufficient legal safeguards to prevent it from being used arbitrarily against journalists and in such a way that it interferes unjustifiably with the fundamental right to freedom of expression.

In his judgment (with which Lord Justice Richards and Lord Justice Floyd agreed), Lord Dyson states that:

“If journalists and their sources can have no expectation of confidentiality, they may decide against providing information on sensitive matters of public interest. That is why the confidentiality of such information is so important.” (Paragraph 113)

“In disagreement with the Divisional Court, I would declare that the stop power conferred by para 2(1) of Schedule 7 is incompatible with article 10 of the Convention in relation to journalistic material in that it is not subject to adequate safeguards against its arbitrary exercise and I would, therefore, allow the appeal in relation to that issue. It will be for Parliament to provide such protection.” (Paragraph 119)

“The most obvious safeguard would be some form of judicial or other independent and impartial scrutiny conducted in such a way as to protect the confidentiality in the material.” (Paragraph 119)

Liberty has long argued that Schedule 7 is an overbroad and intrusive power. It can be exercised without the need for any grounds for suspecting the person stopped has any involvement in terrorism, or any other criminal activity and contains no protection for journalists or their sources.

The Court does not have the power, under the Human Rights Act, to change the Schedule 7 power. Instead, it has issued a declaration of incompatibility, which leaves it to Parliament to decide how to change the law so that it is compatible with Article 10.