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

For a statutory border-examination power, the relevant purpose is the true and dominant purpose of the stop. Police may rely on Security Service intelligence, but must exercise their own judgment for the statutory purpose. “Terrorism” under the Terrorism Act 2000 requires a mental element across the statutory categories. Publication may qualify only where the publisher intends, or is reckless as to, endangering life or creating a serious risk, alongside the political or ideological conditions.

Proportionality requires balancing press freedom and national security, with substantial deference to expert risk assessments. However, the absence of prior or urgent immediate post-factum independent scrutiny made the Schedule 7 power incompatible with Article 10 in relation to journalistic material. The individual stop remained lawful and proportionate.

The appeal arose from the detention of David Miranda at Heathrow under paragraph 2(1) of Schedule 7 to the Terrorism Act 2000. He was questioned for nine hours and encrypted storage devices containing highly classified intelligence material were retained. The material was connected with journalistic work by his spouse, Glenn Greenwald.

The Divisional Court held that the power had been used for a permitted purpose, that the stop was proportionate under Articles 5, 8 and 10, and that Schedule 7 was compatible with Article 10. The appeal concerned the stop’s purpose, the meaning of terrorism, proportionality, the availability of Schedule 5 procedures, and whether Schedule 7 contained adequate safeguards for journalistic material.

1. Disposition. The appeal was allowed in part. The stop itself was lawful and proportionate, but paragraph 2(1) of Schedule 7 to the Terrorism Act 2000 was declared incompatible with Article 10 in relation to journalistic material.
2. Purpose and statutory power. The true and dominant purpose was a question of fact. The police were entitled to rely on the final Port Circulation Sheet and Security Service intelligence, provided they exercised their own judgment and did not act merely as a conduit for another agency. The purpose was to determine whether Miranda appeared to fall within section 40(1)(b), which was sufficient even though the police had not concluded that the material would in fact be released for a political or ideological purpose. The Schedule 7 threshold was deliberately low and required only an opportunity to ascertain that possibility.
3. Meaning of terrorism. The literal interpretation accepted below was rejected. Section 1 of the Terrorism Act 2000 was construed coherently across its categories as importing a mental element. Publication could amount to an act of terrorism where it endangered life or created a serious risk to public health or safety, and the publisher intended that effect or was reckless as to it, together with the conditions in section 1(1)(b) and (c).
4. Proportionality. The [2013] UKSC 39 proportionality test applied. The court should give substantial deference to police and Security Service assessments of national-security risk because of their expertise, access to intelligence and constitutional responsibility. The evidence of likely damage and potential loss of life was compelling. Schedule 5 was less intrusive but slower and less effective for obtaining immediate questioning and information, so its non-use did not make the stop disproportionate. The balancing exercise had to take account of journalistic material that the directing officers knew or ought to have known about.
5. Article 10 safeguards. The safeguards adequate for Articles 5 and 8 in Beghal did not suffice for journalistic material. Disclosure could destroy confidentiality and produce a chilling effect. Post-event judicial review could not cure that harm. Prior judicial or other independent and impartial scrutiny, or immediate post-factum scrutiny before access in an urgent case, was the natural adequate safeguard. Schedule 7 contained no such protection and was therefore incompatible with Article 10 in this respect.

1. Court of Appeal (Civil Division): [2016] EWCA Civ 6. The stop was upheld as lawful and proportionate, but a declaration of incompatibility was made concerning Schedule 7 and Article 10.
2. Divisional Court, Queen’s Bench Division: held that the stop was for a permitted statutory purpose, proportionate, and compatible with Article 10. The citation of that decision is not stated in the judgment.