“(1) In this Act ‘terrorism’ means the use or threat of action where— (a) the action falls within subsection (2), (b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and (c) the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause. (2) Action falls within this subsection if it— (a) involves serious violence against a person, (b) involves serious damage to property, (c) endangers a person’s life, other than that of the person committing the action, (d) creates a serious risk to the health or safety of the public or a section of the public, or (e) is designed seriously to interfere with or seriously to disrupt an electronic system.”
“(1) In this Part ‘terrorist’ means a person who— ... (b) is or has been concerned in the commission, preparation or instigation of acts of terrorism.” ... (b) is or has been concerned in the commission, preparation or instigation of acts of terrorism.”
“1(1) A constable may apply to a justice of the peace for the issue of a warrant under this paragraph for the purposes of a terrorist investigation. (2) A warrant under this paragraph shall authorise any constable— (a) to enter premises mentioned in sub-paragraph (2A) [whose details are not material], (b) to search the premises and any person found there, and (c) to seize and retain any relevant material which is found on a search under paragraph (b). ... 5(1) A constable may apply to a Circuit judge or a District Judge (Magistrates’ Courts) for an order under this paragraph for the purposes of a terrorist investigation. (2) An application for an order shall relate to particular material, or material of a particular description, which consists of or includes excluded material or special procedure material. (3) An order under this paragraph may require a specified person— (a) to produce to a constable within a specified period for seizure and retention any material which he has in his possession, custody or power and to which the application relates... (4) For the purposes of this paragraph— (a) an order may specify a person only if he appears to the Circuit judge or the District Judge (Magistrates’ Courts) to have in his possession, custody or power any of the material to which the application relates... 6(1) A Circuit judge or a District Judge (Magistrates’ Courts) may grant an application under paragraph 5 if satisfied— (a) that the material to which the application relates consists of or includes excluded material or special procedure material... (c) that the conditions in sub-paragraphs (2) and (3) are satisfied in respect of that material. (2) The first condition is that— (a) the order is sought for the purposes of a terrorist investigation, and (b) there are reasonable grounds for believing that the material is likely to be of substantial value, whether by itself or together with other material, to a terrorist investigation... 10(1) An order of a Circuit judge or a District Judge (Magistrates’ Courts) under paragraph 5 shall have effect as if it were an order of the Crown Court... 13(1) A constable may apply to a Circuit judge or a District Judge (Magistrates’ Courts) for an order under this paragraph requiring any person specified in the order to provide an explanation of any material— ... (b) produced or made available to a constable under paragraph 5.”
“1 In this Schedule ‘examining officer’ means any of the following— (a) a constable... 2(1) An examining officer may question a person to whom this paragraph applies for the purpose of determining whether he appears to be a person falling within section 40(1)(b). (2) This paragraph applies to a person if— (a) he is at a port or in the border area, and (b) the examining officer believes that the person’s presence at the port or in the area is connected with his entering or leaving Great Britain or Northern Ireland... (4) An examining officer may exercise his powers under this paragraph whether or not he has grounds for suspecting that a person falls within section 40(1)(b). (5) A person who is questioned under paragraph 2... must— (a) give the examining officer any information in his possession which the officer requests; (b) give the examining officer on request either a valid passport which includes a photograph or another document which establishes his identity; (c) declare whether he has with him documents of a kind specified by the examining officer; (d) give the examining officer on request any document which he has with him and which is of a kind specified by the officer.”
“For the purpose of satisfying himself whether there are any persons whom he may wish to question under paragraph 2 an examining officer may [carry out various searches].”
“An examining officer may examine goods to which this paragraph applies for the purpose of determining whether they have been used in the commission, preparation or instigation of acts of terrorism.”
“An examining officer may authorise a person to carry out on his behalf a search or examination under any of paragraphs 7 to 9.”
“Intelligence indicates that MIRANDA is likely to be involved in espionage activity which has the potential to act against the interests of UK national security. We therefore wish to establish the nature of MIRANDA’s activity, assess the risk that MIRANDA poses to UK national security and mitigate as appropriate. We are requesting that you exercise your powers to carry out a ports stop against MIRANDA.”
“2... We strongly assess that MIRANDA is carrying items which will assist in GREENWALD releasing more of the NSA and GCHQ material we judge to be in GREENWALD’s possession. Open source research details the relationship between POITRAS, GREENWALD and SNOWDEN which corroborates our assessment as to the likelihood that GREENWALD has access to the protectively marked material SNOWDEN possesses. Our main objectives against David MIRANDA are to understand the nature of any material he is carrying, mitigate the risks to national security that this material poses...” 3. We are requesting that you exercise your powers to carry out a ports stop against David MIRANDA... 4. 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 damaging to UK national security interests. SNOWDEN holds a large volume of GCHQ material which, if released, would have serious consequences for GCHQ’s collection capabilities, as well as broader SIA operational activities, going forwards...”
“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 and as such we request that the subject is examined under Schedule 7.”
“An examining officer may question a person to whom this paragraph applies for the purpose of determining whether he appears to be a person falling within section 40(1)(b).”
“Sometimes an act may serve two or more purposes, some authorised and some not, and it may be a question whether the public authority may kill two birds with one stone. The general rule is that its action will be lawful provided that the permitted purpose is the true and dominant purpose behind the act, even though some secondary or incidental advantage may be gained for some purpose which is outside the authority’s powers. There is a clear distinction between this situation and its opposite, where the permitted purpose is a mere pretext and a dominant purpose is ultra vires.”
“29... [T]he definition of terrorism in section 1 in the 2000 Act is, at least if read in its natural sense, very far reaching indeed... [38]... For the reasons given by Lord Lloyd, Lord Carlile and Mr Anderson [the latter two were successive Independent Reviewers of the legislation appointed unders.36 of the Terrorism Act 2006 ], the definition of ‘terrorism’ was indeed intended to be very wide... [41]... [W]e conclude that, unless the appellant’s argument based on international law dictates a different conclusion, the definition of terrorism as in section 1 of the 2000 Act is indeed as wide as it appears to be.”
“50. It appeared to me on the basis of what I knew about the stolen material, that it could be used to endanger life and cause harm to members of the public... [51] It was very clear in my mind that this action was not being executed as a means to prevent political embarrassment in the UK... [52]... I believed that the information in [the claimant’s] possession could potentially compromise the UK’s ability to monitor terrorist networks, posing a threat to the safety of the public... In particular, I considered that the release of information about PRISM technology into the public domain was of use to terrorists. My understanding of the technology from material in the public domain is that it enables security and intelligence services to monitor email traffic. Accordingly, I considered that if nothing was done to try to prevent further damaging disclosures which could directly benefit terrorists, the MPS and I personally would be failing in our obligation to prevent the loss of life, safeguard the public to [sic] prevent and detect crime. For all these reasons I considered that the use of a Schedule 7 stop was proportionate.”
“I did not address my mind at the time to applying to a circuit judge for a Schedule 5... production order as I considered that Schedule 7 represented the best and only method of achieving the dual objective of establishing what material [the claimant] may have had in his possession and questioning him about it.”
“… [T]he question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to that objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community.”
“whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.”
“whether... a fair balance has been struck between the rights of the individual and the interests of the community”
“I can see no inconsistency between English law on this subject andarticle 10 of the European Convention on Human Rights . This is scarcely surprising, since we may pride ourselves on the fact that freedom of speech has existed in this country perhaps as long as, if not longer than, it has existed in any other country in the world. The only difference is that, whereasarticle 10 of the Convention , in accordance with its avowed purpose, proceeds to state a fundamental right and then to qualify it, we in this country (where everybody is free to do anything, subject only to the provisions of the law) proceed rather upon an assumption of freedom of speech, and turn to our law to discover the established exceptions to it.”
“I am concerned with the fundamental freedom which this country has prided itself on maintaining, and for which much blood has been spilt over the centuries, namely freedom of speech.”
“Inconvenient or embarrassing revelations, whether for the Security Services, or for public authorities, should not be suppressed. Legal proceedings directed towards the seizure of the working papers of an individual journalist, or the premises of the newspaper or television programme publishing his or her reports, or the threat of such proceedings, tends to inhibit discussion. When a genuine investigation into possible corrupt or reprehensible activities by a public authority is being investigated by the media, compelling evidence is normally needed to demonstrate that the public interest would be served by such proceedings. Otherwise, to the public disadvantage, legitimate enquiry and discussion, and ‘the safety valve of effective investigative journalism’, the phrase used in a different context by Lord Steyn in R v Secretary of State for the Home Department ex parte Simms[1999] 3 WLR 328 at 341, would be discouraged, perhaps stifled.”
“freedom of speech is the lifeblood of democracy”
“The reasons why the right to free expression is regarded as fundamental are familiar, but merit brief restatement in the present context. Modern democratic government means government of the people by the people for the people. But there can be no government by the people if they are ignorant of the issues to be resolved, the arguments for and against different solutions and the facts underlying those arguments... [T]here can be no assurance that government is carried out for the people unless the facts are made known, the issues publicly ventilated.”
“In a modern, developed society it is only a small minority of citizens who can participate directly in the discussions and decisions which shape the public life of that society. The majority can participate only indirectly, by exercising their rights as citizens to vote, express their opinions, make representations to the authorities, form pressure groups and so on. But the majority cannot participate in the public life of their society in these ways if they are not alerted to and informed about matters which call or may call for consideration and action. It is very largely through the media, including of course the press, that they will be so alerted and informed. The proper functioning of a modern participatory democracy requires that the media be free, active, professional and enquiring. For this reason the courts, here and elsewhere, have recognised the cardinal importance of press freedom and the need for any restriction on that freedom to be proportionate and no more than is necessary to promote the legitimate object of the restriction.”
“protection of journalistic sources is one of the basic conditions for press freedom”
“18(3) I was aware that this material was extremely important to Glenn for the continued public interest exposure of the NSA/GCHQ mass surveillance programme and that was why I was bringing it to him.”
“15. Since my first witness statement, there have been further damaging reports based on stolen classified material. It is obviously not possible in an open statement to go into detail about the real and serious damage already caused by the disclosures based on Mr Snowden’s misappropriations, nor about what further damage may follow. However, given the volume of media reporting published over the past three months, and public statements from the UK and US Governments, I can say with confidence that the material seized is highly likely to describe techniques that have been crucial in life-saving counter-terrorism operations, the prevention and detection of serious crime, and other intelligence activities vital to the security of the UK. The compromise of these methods would do serious damage to UK national security, and ultimately put lives at risk. Following the article jointly published by the Guardian, New York Times and ProPublica on 5 September, for example, the US Office of the Director of National Intelligence said on the following day that the article revealed ‘specific and classified details about how we [ie, the US] conduct this critical activity’, and that it provided a ‘roadmap to our adversaries’ about surveillance issues.”
“The material needs to be examined as a matter of urgency to identify the nature of the material stolen in order to enable the MPS to mitigate the risks posed by the theft, the unlawful possession and disclosure of this material. For example, should the identity of individuals working for HMG be revealed their lives and the lives of their families could be directly at risk. Similarly should details of ongoing/historic operations and/or methodology be revealed the operation itself could be rendered ineffective. This will consequently put the lives of the general public at risk as we would be less able to counter the threat from terrorism. If the MPS was able to identify what identities and information are contained within the material we would be able to mitigate the risk posed to those individuals, those operations and the general public at large by putting appropriate measures in place.”
“61(2)... I strongly challenge the suggestion that there was a genuine belief in a risk that my activity could endanger life or facilitate terrorist attacks... 62... [H]aving now seen the defendants’ attempts to explain the action against me it is my belief that my detention and questioning was not genuinely based on the need to question me in relation to the commission, instigation and preparation of acts of terrorism. It was an effort to obtain journalistic material from me and the Schedule 7 powers were misused.”
“I believe the evidence will show that the defendants were well aware that the claimant’s possession [sc. of the material seized] was in connection with journalism, not terrorism.”
“31. It is my view that there will be times when the publication of sensitive material, even national security material, is appropriate, provided the journalist and those working with him or her take great care and act responsibly. 32. But 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. That approach is also deeply unhealthy for any democracy. It would have prevented some of the most important information in world current affairs ever coming to light. Publication of information contrary to the wishes of a government is, at times, both the role and the duty of the ‘Fourth Estate’. The key is not for journalists to simply defer to the government view, but to act as responsibly and carefully as they can to determine if and when it is in the public interest to publish sensitive material. That is what we have done. 33. From my experience I can indicate that there are many ingredients to the sensible reporting of very sensitive information. They include, but are not limited to, the following: (1) If possible, one should seek to use the skills and judgment of highly experienced journalists and legal experts. This is the most appropriate and safest way to decide whether to publish information and how much of it to disclose. That collective experience enables a careful judgment of both the public interest and any risks or dangers that may arise on publication. (2) Experienced editors and reporters are able to consider what, if anything, may be published without endangering innocent life. They cannot always, of course, do so with complete perfection. But the history of investigative journalism leaves no doubt that such judgments can be, and almost always are, made with great responsibility. (3) Editors and other journalists not only have experience, but they also have established methods through which to communicate with government officials in relation to publication. These can be both formal and informal. These procedures enable journalists to determine which stories may be sensitive because they pose a real danger to persons if there is publication; and which stories are sensitive, awkward, embarrassing for the government, or which the government feels may be undesirable to be made public.”
“51. It is absurd to suggest that because the material, if it ever fell into the hands of terrorists 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. (original emphasis) 52. Nowhere in their evidence do the defendants’ witnesses positively indicate that any disclosure has actually threatened or endangered life or any specific operation. In my view, this is not surprising, given the care we took not to create such a risk.” (1) If possible, one should seek to use the skills and judgment of highly experienced journalists and legal experts. This is the most appropriate and safest way to decide whether to publish information and how much of it to disclose. That collective experience enables a careful judgment of both the public interest and any risks or dangers that may arise on publication. (2) Experienced editors and reporters are able to consider what, if anything, may be published without endangering innocent life. They cannot always, of course, do so with complete perfection. But the history of investigative journalism leaves no doubt that such judgments can be, and almost always are, made with great responsibility. (3) Editors and other journalists not only have experience, but they also have established methods through which to communicate with government officials in relation to publication. These can be both formal and informal. These procedures enable journalists to determine which stories may be sensitive because they pose a real danger to persons if there is publication; and which stories are sensitive, awkward, embarrassing for the government, or which the government feels may be undesirable to be made public.”
“Indeed it is impossible for a journalist alone to form a proper judgment about what disclosure of protectively marked intelligence does or does not damage national security... The fragmentary nature of intelligence means that even a seemingly innocuous piece of information can provide important clues to individuals involved in extremism or terrorism.”
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers… 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
“49… [A] norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct…”
“For domestic law to meet these requirements it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise … The level of precision required of domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed…”
“91… [I]n our view crucially, the distinction between this case and Gillan is one of substance, turning on the starkly different context of the powers in issue. In our judgment port and border control is very different from a power to stop and search, potentially exercisable anywhere in the jurisdiction. Conclusions as to the arbitrariness of the latter do not readily, still less necessarily, translate into conclusions as to the former. As Schedule 7, para. 2 makes clear, the relevant powers apply only to a limited category of people - namely those ‘at a port or in the border area’, where ‘the examining officer believes that the person’s presence…. is connected with his entering or leaving…’ the country and also to a person on a ship or aircraft which has arrived at any place in Great Britain or Northern Ireland. That the category of persons to whom Schedule 7 powers are applicable may itself be numerically large is neither here nor there; port and border controls cannot be simplistically assimilated with generalised powers of stop and search exercisable anywhere in any circumstances. Although it could not be said that the references in Gillan (HL) (at [9] and [28]) to the Schedule 7 powers and searches at airports, or the like reference to airports in Gillan (Strasbourg) (at [64]), of themselves make good the distinction, they certainly point to a significant contextual difference. As has been shown by reference to both Lord Lloyd’s Report [‘Inquiry into Legislation Against Terrorism’, Command Paper No. 3420 of 1996] and the views of the Independent Reviewer [The Independent Reviewer of Terrorism Legislation, David Anderson QC: 2012 Report] the Schedule 7 powers have a long history. At least in significant part, they plainly reflect that this country, as ‘an island nation’ concentrates controls at its national frontiers. We venture the view that the Strasbourg Court would accord a wide margin of appreciation for individual states in respect of port and border controls…”
“[i]n matters affecting fundamental rights it would be contrary to the rule of law… for a legal discretion granted to the executive to be expressed in terms of an unfettered power”
“89. The Court notes that orders to disclose sources potentially have a detrimental impact, not only on the source, whose identity may be revealed, but also on the newspaper or other publication against which the order is directed, whose reputation may be negatively affected in the eyes of future potential sources by the disclosure, and on members of the public, who have an interest in receiving information imparted through anonymous sources… 90. First and foremost among these safeguards is the guarantee of review by a judge or other independent and impartial decision-making body… 92. Given the preventive nature of such review the judge or other independent and impartial body must thus be in a position to carry out this weighing of the potential risks and respective interests prior to any disclosure and with reference to the material that it is sought to have disclosed so that the arguments of the authorities seeking the disclosure can be properly assessed.”
“The Court notes that unlike in the SanomaUitgevers case, the investigating judge has the authority under Latvian law to revoke the search warrant and to declare such evidence inadmissible… Moreover… the investigating judge also has the power to withhold the disclosure of the identity of journalistic sources… The Court considers that the last two elements pertaining to the investigating judge’s involvement in an immediate post factum review are sufficient to differentiate this case from the above-mentioned SanomaUitgevers case (see also Telegraaf Media… where a similar distinction was made). The Court, therefore, does not deem it necessary to examine the Government’s submissions concerning the role of the supervising prosecutor in authorising searches under the urgent procedure.”