Miranda, R (on the application of) v Secretary of State for the Home Department & Anor

Interim relief must be determined by assessing the balance of convenience and selecting the course offering the best prospect of avoiding or minimising eventual injustice. Where national security and journalistic-source protection compete, the court may permit limited examination or disclosure of detained material before the substantive interim-relief hearing if the evidence and urgency justify it. The scope of any exception must be carefully confined to purposes such as assessing whether a person falls within the statutory terrorism definition or protecting national security. A statutory period for examining detained property does not necessarily prevent copying or mirroring electronic material.

The claimant sought urgent judicial review and interim relief after being detained and questioned at Heathrow under Schedule 7 to the Terrorism Act 2000. The police detained his laptop, telephone, memory sticks, portable hard drive and other items. He argued that the powers had been used for an improper purpose, did not apply in an international transit area, and were disproportionate, particularly because the material might identify journalistic sources.

The defendants resisted an injunction preventing examination and disclosure, relying principally on national security, criminal investigation and the statutory period for examining detained material. The court was concerned only with the position pending an inter partes hearing on 30 August 2013, together with directions for the future conduct of the proceedings.

1. Interim relief. The governing approach was to assess the balance of convenience and choose the course offering the best prospect of avoiding or minimising eventual injustice, applying ex parte Factortame (No 2) [1991] 1 All ER 70 and National Commercial Bank Ltd v Olint Corporation Ltd [2009] UKPC 16.
2. The court accepted that the claimant had raised a triable issue concerning the purpose for which the Schedule 7 powers had been used, and that damages would not be adequate. The immediate issue was nevertheless the balance of convenience during the short period before the inter partes hearing.
3. The defendants were prohibited from inspection, copying, disclosure, transfer, distribution or other interference with the detained data, subject to limited exceptions. Examination was permitted to determine whether the claimant fell within section 40(1)(b) of the Terrorism Act 2000 and for the purpose of protecting national security, including preventing danger to life or diminution of counter-terrorism capability.
4. The exception relating to the terrorism inquiry served the central statutory purpose of Schedule 7. It did not authorise the police to strengthen retrospectively the justification for the original questioning. The national-security exception was justified by the serious assertions before the court, the urgency, and the materially different context from Sanoma Uitgevers BV v The Netherlands (14 September 2010), which did not concern national security or comparable urgency.
5. The court rejected the submission that interim relief would necessarily be final because the seven-day period in paragraph 11 of Schedule 7 had to expire. That period applied to the detained thing and did not appear to prevent mirroring or copying computer hard drives.
6. The parties agreed a timetable for a possible rolled-up hearing. The defendants were allowed 21 days for their defence and evidence, followed by 14 days for the claimant’s evidence in reply and seven days for exchanged skeleton arguments. The application was adjourned to 30 August 2013, subject to reconsideration if a closed hearing application was made.

First-instance judicial review proceedings. The court determined interim relief and directions only; the substantive claim was not decided.