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  1. Media Law
January 19, 2016updated 21 Jan 2016 10:55pm

Court of Appeal: Detention of David Miranda breached European law, new safeguards needed for journalistic material

By Dominic Ponsford

The Court of Appeal has ruled that the Metropolitan Police breached European law when the partner of a Guardian journalist was detained for nine hours under the Terriorism Act.

David Miranda was held at Heathrow Airport in August 2013 and his electronic equipment, which included a hard drive carrying thousands of encrypted documents leaked by Edward Snowden, was confiscated.

Miranda was helping his partner, then Guardian journalist Glenn Greenwald, and was on his way way back to Rio de Janeiro after meeting filmmaker Laura Poitras in Berlin (the pair are pictured above – Reuters).

Last year the High Court ruled that the detention of Miranda was lawful.

But now the Court of Appeal has partly overturned that ruling in a case brought by Liberty.

Lord Dyson said the stop power conferred by Article 7 of the Terrorism Act "is incompatible with article 10 of the Convention in relation to journalistic material in that it is not subject to adequate safeguards".

He said: "It will be for Parliament to provide such protection. 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."

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Lord Justice Richards and Lord Justice Floyd agreed with the judgment.

Dyson also said in his judgment: "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."

Liberty legal officer Rosie Brighouse 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.”

The judgment has implications for the draft Investigatory Powers Bill currently before Parliament, which has prompted widespread concerns about its potential failure to protect confidential journalistic sources from state snooping.

Liberty warned today that the draft bill "legislates for indiscriminate mass surveillance against the whole population which will include the collection of confidential journalistic material".

It also warned that the draft bill "allows access to journalists’ communications data to be self-authorised by a large number of public bodies, subject only to a weak model of judicial confirmation". 

According to the UK Cabinet Office, the confiscated David Miranda hard drive contained 58,000 highly classified UK intelligence documents.


Read the David Miranda versus Home Office Court of Appeal legal judgment in full.


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