Appeal court says detention of Miranda was lawful but clause under which he was held is incompatible with European human rights convention
The court of appeal rules in the David Miranda case – video
A key clause in the Terrorism Act 2000 is incompatible with the European convention on human rights, the master of the rolls, Lord Dyson, has declared as part of a court of appeal judgment.
The decision came in the case of David Miranda, who was detained at Heathrow airport in 2013 for carrying files related to information obtained by the US whistleblower Edward Snowden.
The court of appeal’s judgment on Tuesday will force government ministers to re-examine the act.
Dyson, who made the ruling along with Lord Justice Richards and Lord Justice Floyd, said the powers contained in schedule 7 of the Terrorism Act 2000 were flawed. Schedule 7 allows travellers to be questioned to find out whether they appear to be terrorists. They have no right to remain silent or receive legal advice and they may be detained for up to nine hours.
“The stop power, if used in respect of journalistic information or material is incompatible with article 10 [freedom of expression] of the [European convention on human rights] because it is not ‘prescribed by law’,” said Dyson, the most senior civil judge in England and Wales.
The judgment continued: “If journalists and their sources can have no expectation of confidentiality, they may decide against providing information on sensitive matters of public interest.
“The court of appeal ruling rejects the broad definition of terrorism advanced by government lawyers. The correct legal definition of terrorism, the court of appeal has now ruled, requires some intention to cause a serious threat to public safety such as endangering life.”
Welcoming the decision, Kate Goold, representing Miranda, said: “The notion of a journalist becoming an accidental terrorist has been wholeheartedly rejected. We welcome this court’s principled and decisive ruling that schedule 7 [of the Terrorism Act] needs to come in line with other legislation to ensure that the seizure of journalistic material is protected by judicial safeguards.”
However, the judges concluded that the police decision to detain Miranda, the partner of the former Guardian journalist Glenn Greenwald, at Heathrow was lawful.
Dyson said the police power to stop at airports and ports was not subject to “sufficient legal safeguards to avoid the risk that it will be exercised arbitrarily. The court therefore grants a certificate of incompatibility”.
“It will be a matter for parliament to decide how to provide such a safeguard,” he added. “The most obvious safeguard would be some form of judicial or other independent and impartial scrutiny in such a way as to protect the confidentiality in the material.”
Issuing a certificate of incompatibility is highly unusual but open to judges when they conclude that UK law is inconsistent with the country’s international human rights obligations.
The judgment in effect says the police acted within the existing law but the law itself was illegal.
“The exercise of the schedule 7 stop power in relation to Mr Miranda on 18 August 2013 was lawful…” the judges concluded. “But the stop power conferred by paragraph 2(1) of schedule 7 [of the Terrorism Act] is incompatible with article 10 of the convention [on human rights] in relation to journalistic material in that it was not subject to adequate safeguards against its arbitrary exercise.”
The judgment said: “The central concern is that disclosure of journalistic material [whether or not it involves the identification of a journalist’s sources] undermines the confidentiality that is inherent in such material and which is necessary to avoid the chilling effect of disclosure and to protect article 10 [freedom of expression] rights.”
The challenge brought by Miranda questioned the legality of his nine-hour detention under counter-terrorism powers.
The hearing at the court of appeal in London in December followed an earlier decision by a lower court that holding him was lawful.
Approximately 60,000 people a year are held in such controversial port stops. The Home Office has argued that border controls exist to check on travellers where there is insufficient information to justify an arrest.
David Miranda and his partner, former Guardian journalist Glenn Greenwald. Photograph: Janine Gibson for the Guardian
Liberty, The human rights campaign group, welcomed what it described as a “landmark judgment”. Rosie Brighouse, its legal officer, 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.”
Miranda’s first legal challenge was supported by the Guardian. The court of appeal challenge was funded by First Look Media, which publishes the online magazine the Intercept. The organisation said the appeal had been brought to defend freedom of expression and journalists’ rights.
When Miranda was stopped, he was carrying encrypted files containing journalistic material derived from Snowden, the US National Security Agency whistleblower. His counsel, Matthew Ryder QC, told the court: “Snowden, whatever you may think of him, provided information which has been of immense public importance. In this case we are talking about journalism of unusually high quality.”
The previous court had erred in its decision, Ryder said, because it had misinterpreted the law on proportionality and the detention was incompatible with Miranda’s rights to privacy and freedom of expression under the European convention on human rights.
In 2014, three high court judges dismissed the initial challenge, accepting that Miranda’s detention and the seizure of computer material was “an indirect interference with press freedom” but said this was justified by legitimate and “very pressing” interests of national security.
Miranda was stopped in transit between Berlin and Rio de Janeiro after meeting the film-maker Laura Poitras, who had been involved in making disclosures based on documents leaked by Snowden.
Miranda was carrying encrypted files, including an external hard drive containing 58,000 highly classified UK intelligence documents, “in order to assist the journalistic activity of Greenwald”.
The Guardian made his travel reservations and paid for the trip. The high court judgment said the seized material included personal information that would allow security staff to be identified, including those deployed overseas.
In the court of appeal hearing, Ryder told the judges: “Wanting to get material off somebody and no more is not a [legitimate] schedule 7 purpose.”
The focus of a schedule 7 port stop, he maintained, should be whether or not the person targeted is preparing acts of terrorism. If the law was interpreted as the high court decided, Ryder said it “would mean that terrorism could be committed by acts that do not intend to incite violence or endanger life”.
He added: “It would mean that terrorism can be committed by acts that are themselves entirely lawful and … can be entirely lawful.”
Fewer witnesses in criminal cases are turning up at court, a watchdog has warned.
Fewer witnesses in criminal cases are turning up at court, a watchdog has warned.
Attendance is falling despite an increase in the number of witness summonses issued, HM Crown Prosecution Service Inspectorate (HMCPSI) said.
Chief inspector Kevin McGinty said: “Fewer and fewer witnesses are attending court.
“Witnesses not attending court can mean that a trial has to be rescheduled, and can even result in the defendant being acquitted.”
He added: “The CPS rightly wants to reduce the number of times that trials have to be rescheduled or defendants walking free but there’s little evidence that use of the summons is making a difference.”
A report by the inspectorate cited figures indicating that a rising proportion of prosecutions are “cracked” – the official term used for a case that concludes unexpectedly – on the day of trial due to a witness being absent or withdrawing their evidence.
It said 2.1% of trials in the crown court and 6.8% of trials in the magistrates court were cracked for this reason in 2014/15, compared with 1.8% and 6.3% respectively in the previous year.
The report also said that more than one in 10 witnesses in domestic abuse cases are being inappropriately summoned to court.
Inspectors thought applying for a witness summons was not the most appropriate course of action in 14 out of 110 cases in a sample.
Courts can issue a summons to require a witness to attend court to give evidence or produce a document or other item. Failure to appear can result in a warrant for the witness’s arrest.
The decision to apply for a witness summons “should not be taken lightly”, HMCPSI said.
It said: “A witness summons is the last resort for those who disengage from a prosecution and should only be considered when all other avenues have been exhausted. Ultimately it can result in the deprivation of liberty of the victim – often impacting on those who may be the most vulnerable.”
A CPS spokeswoman said: “We agree that applying for a summons should be the last resort and that all other avenues must be explored to secure the witness’s attendance at court before doing so.
“The final decision on whether a summons is issued rests with the court.”
She added: “In 2014/15 a small number of cases listed for trial were ineffective due to prosecution reasons, only 5.2% of total cases listed for trial at the Crown Court and 4.8% at Magistrates’ Courts.
“Of these ineffective trials, only a very small proportion were due to non-attendance of victims or witnesses.
“The CPS and police are conducting a joint review of the provision of support to victims and witnesses. This review, which aims to improve levels of service, will be an opportunity to explore the reasons for the drop in witness attendance.
“We will look at ways to ensure that key messaging around witness summonses, and in particular with regard to domestic abuse cases, is reinforced within CPS areas.
“We will be updating our training on domestic abuse over 2016/17 and will consider including training on witness summonses within this.”
The Law Society Gazette
Motor insurers would net an annual windfall exceeding £1bn from fresh curbs on the rights of injury victims – if the industry booked as profit the savings it says it will make from reform. Industry data shows that the £50 per premium saving promised by the government could yield a massive boost to insurers’ bottom lines.
In his autumn statement, chancellor George Osborne pledged to end the right to cash compensation for minor whiplash injuries and raise the upper limit for personal injury claims in the small claims track from £1,000 to £5,000.
Over Christmas the Ministry of Justice announced that leading motor insurers had promised to pass on to customers 100% of the savings they make from curbs on whiplash claims – estimated at up to £50 per motor premium.
Last week, however, both the government and trade body the Association of British Insurers admitted there will be no industry audit to confirm that insurers keep that promise. This has inevitably led to concerns that there is nothing to stop insurers simply booking the ‘savings’ as extra profit – at a time when the average motor premium is soaring once again.
The ABI’s own statistics show that in 2012, the latest year for which data are available, 19.6m UK households had motor insurance. Multiplied by £50, and assuming that each household has just one premium, that would mean a potential boost to profits totalling £980m.
In fact the average household in Britain has two cars – suggesting the windfall could be hundreds of millions of pounds higher.
The Law Gazette
Health ministers intend to introduce fixed fees for clinical negligence cases by 1 October – despite not yet releasing a promised consultation on the issue.
Responding to a written parliamentary question, health minister Ben Gummer (pictured) confirmed the intended start date for fixed recoverable costs for claims, following the outcome of the public consultation.
The consultation will include consideration on the maximum value of claims – likely to be £25,000 – that would be covered by the new regime and whether there should be any exemptions.
With the consultation likely to last at least six weeks, the starting date leaves ministers with a tight schedule to make changes.
In response to a separate question, Gummer said respondents to a pre-consultation exercise in August confirmed ‘no exact correlation’ between the value and complexity of clinical negligence claims.
The consultation, he said, will look at how behaviours can change to streamline and speed up the way in which clinical negligence claims can be processed. Gummer insisted the new regime will focus on the conduct of both claimants and defendants for a process that is ‘more resource-efficient and that incentivises the right behaviours by all parties’.
He added: ‘One objective of the proposed fixed recoverable cost regime is to improve the relationship between recoverable costs and damages paid, he said.
‘Looking at cases settled post Legal Aid, Sentencing and Punishment of Offenders Act 2012 we have not noticed a significant impact on this relationship.’
Meanwhile, the Medical Defence Union, which defends doctors against clinical negligence claims, has insisted that GPs are not to blame for increasing numbers and costs of claims against them.
In written evidence about indemnity for the parliamentary health committee inquiry into primary care, the MDU admitted claims had risen by 20% following the introduction of LASPO.
Dr Michael Devlin, head of professional standards and liaison at the MDU, said the rise is a result of factors beyond GPs’ control.
‘The main reason is the legal changes to “no win no fee” arrangements which led to a surge in cases,’ he said.
‘Other factors include the worsening economic climate and a general environment that promotes litigation over resolving concerns through alternative routes.’
Devlin said the proof that more unmeritorious claims were being lodged was that the number of claims defended without settlement rose from 70% to 80% in 2015.
The MDU’s highest payment on behalf of a GP was £7.5m following missed diagnosis of a subarachnoid haemorrhage and in another case £6.5m (plus £300,000 costs) was paid for missed diagnosis of meningitis in a six-month-old infant
The Law Gazette
The Treasury has admitted that it has no intention of intervening to force insurers to pass on savings from whiplash reforms.
The government plans to increase the small-claims limit for personal injury claims to £5,000, as well as scrap general damages for RTA soft-tissue injuries.
The reforms are largely founded on the expectation – and in two insurers’ cases a public pledge – to pass on 100% of resultant savings to consumers in the form of lower car insurance premiums.
A Ministry of Justice press release last month said the move would cut annual insurance premiums by around £50.
But a written parliamentary answer to a question from shadow justice minister Andy Slaughter has revealed the government has no mechanism in place to actually enforce the promise.
Treasury minister Harriet Baldwin said the pricing of insurance products is a ‘matter for individual insurers in which the government does not seek to intervene’.
She added: ‘The motor insurance market is intensely competitive and the government therefore expects that the insurance industry will pass on savings to consumers.’
The Association of British Insurers said it has no remit to set its members’ prices, but would rely on the competitive insurance market to keep premiums down.
A spokesman said: ‘Insurers have been delivering on their promise to pass on savings made to customers following the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act reforms.’
But research released from the comparison website Confused.com said car insurance premiums saw their biggest annual rise since 2011 in the final quarter of 2015.
Motorists are now paying on average £78, or 13.2%, more than they were this time last year, leaving the average premium for a comprehensive policy now at £672.
Tom Jones, head of policy at claimant firm Thompsons Solicitors, said the government has no intention of making the insurance industry do anything, instead relying on ‘volunteers’ to pass on savings.
‘Rather like Lord Nelson in the Battle of Trafalgar, the government “expects” the insurance companies to do the right thing,’ he said.
‘It’s one thing for Nelson to have expectations of those in uniform serving their country in the heat of battle but George Osborne needs to accept that it’s rather different when you are talking about insurance companies whose first master is their shareholder.’
Lord chief justice says in annual report to parliament that one result is rise in number of litigants unrepresented in court
The lord chief justice, Lord Thomas, also said judges felt under-appreciated. Photograph: Lewis Whyld/PA
Civil justice is unaffordable for most people, more people are being forced to represent themselves, and judges – whose pensions have been cut – feel underappreciated, according to the lord chief justice.
In his annual report to parliament, Lord Thomas of Cwmgiedd welcomed the government’s commitment to spending £780m on modernisation and new technology, but delivered a downbeat assessment of the courts in England and Wales.
“Our system of justice has become unaffordable to most,” Thomas said in the introduction to his report. “In consequence there has been a considerable increase of litigants in person for whom our current court system is not really designed.
“Although in common with many other European states the number of court buildings has been reduced through closure, the failure to invest has meant that many of the courtrooms have not been modernised and lack modern means of communication to provide for better access to justice.”
Steep increases in court fees, which judges formally opposed, have meant that the judiciary “whilst accepting the decisions by parliament to increase fees, remains deeply concerned about the effect on access to justice,” Thomas said.
Investment in modernising the courts and the development of online justice would improve the system’s ability to respond to the public’s need, he said.
Thomas, the head of the judiciary in England and Wales, said that judges, in common with many other people, felt their burden of work had increased. “For example, they are having to handle an ever-increasing quantity of challenging and emotionally charged cases in family and crime, as well as an increase in litigants in person,” he said.
“Although judges recognise that they are well paid in comparison to most people, static pay … and adverse alterations to pension arrangements … have had a significant impact. In addition, there has, overall, been a widespread feeling of not being valued or appreciated for their work.”
He said a recent survey had found that 77% of judges with leadership responsibilities felt their work had increased significantly in the past three years, and that they were having to deal with an increasing number of complex matters in addition to their daily court sittings.
More effort needs to be made in explaining “the importance of the judicial system in maintaining a just and fair society, accountable and democratic government and a strong economy”, he said. “No satisfactory means of funding the provision of our system of justice has yet been achieved.”
Chantal-Aimée Doerries QC, the new chair of the Bar Council, which represents barristers in England and Wales, said: “The British justice system is the envy of the world. However, as this report [by the lord chief justice] suggests, the reputation of our courts and their ability to serve the public is under threat.
“Cuts to legal aid have resulted in the courts being flooded with people representing themselves without legal advice or representation, including those in emotionally difficult circumstances such as losing access to their children, facing the loss of their home, or fighting deportation to a country where they might be persecuted.
“The real hardship being faced in the family courts is reflected in the recent Bar pro bono unit statistics – family case applications increased by 32% in 2013 and 60% in 2014. Justice is not a luxury, and everyone should be able to defend their rights through the legal system.”
A Ministry of Justice spokesperson said: “As the justice secretary [Michael Gove] has said, our courts and tribunals need urgent reform. That is why we are investing over £700m to transform and modernise the courts and tribunal service. We are determined to deliver the swift and certain justice that the public rightly expects.”
Police in talks with Home Office to ensure immediate surrender of passports after case of Londoner suspected of being masked man in Isis video
Rules on police bail are ‘fairly toothless’ because police are unable to prosecute breaches of any bail conditions, the Met’s counter-terror chief, Mark Rowley, has told MPs. Photograph: Dominic Lipinski/PA
Ministers are looking urgently at strengthening police powers to enforce conditions when they bail terror suspects. The move follows an embarrassing case in which a British jihadi was politely asked to surrender his passport 36 days after he had left the country.
The Metropolitan police’s counter-terror chief, Mark Rowley, told MPs the police were in talks with the Home Office about making it a criminal offence to breach conditions of police bail and to ensure suspects immediately surrendered their passports if required.
The rules on police bail – as opposed to much tougher court bail – were “fairly toothless” because they were unable to prosecute breaches of any conditions that might be laid down, Rowley told the Commons home affairs select committee. It is only a criminal offence if the suspect fails to surrender on the scheduled date the bail expires.
The urgent talks follow the case of Siddhartha Dhar, who has been named as the prime suspect as the masked man in the latest Islamic State video. Dhar, from London, left Britain for Syria within 24 hours of being bailed in connection with terror offences in October 2014.
The Met sent a polite letter to his London address asking him to surrender his passport and get in touch with them 36 days after he had fled to join the Isis.
David Cameron told the chair of the committee, Keith Vaz, he would be “happy to look carefully” at the need to strengthen police bail powers. The prime minister added that he knew the Met counter-terror chief was likely to raise the issue with Vaz’s committee.
Rowley told the MPs that so far the passports of 20 potential British jihadis have been seized under new legislation to prevent them travelling to Syria but that police powers to bail suspects needed to be strengthened.
He said about a third of the 339 people arrested in connection with terror offences in 2015 had been released on bail, many of them with conditions attached.
Rowley confirmed that ports and airports were informed in cases in which it was thought they might try to leave the country. But he hinted that exit checks were “less robust” at some ports and airports than others.
The counter-terror chief played down the significance of the letter in the Dhar case, saying that was a matter of legal process. Rowley told the committee that what matters was the practicalities involved in seizing a passport, adding that it was difficult if a suspect had hidden the passport or passed it on to somebody else.
He said the current police bail laws meant that while a suspect could be re-arrested for breaching conditions they could not be prosecuted as it was not in itself a criminal offence.
Cameron said that in the Dhar case his passport had not been immediately available and the police could not continue to hold him at the time he was bailed because he had already reached the legal limit.
New tests should be introduced to assess whether a defendant facing criminal charges is mentally fit to stand trial, the Law Commission says.
Currently two doctors, including a psychiatrist, advise judges on a defendant’s fitness before a trial.
But the commission, an independent body that reviews laws in England and Wales, wants advice from psychologists to be allowed, along with wider testing.
The Ministry of Justice said it would carefully consider the recommendations.
The commission said existing rules to decide whether or not a defendant was mentally fit were “out of date, misunderstood and inconsistently applied”.
Shift in focus
It called for a “shift in focus” from the existing tests, which it said prioritised “intellectual ability”.
Tom Symonds, BBC home affairs correspondent, said the commission was concerned “too many defendants face criminal trials despite lacking the ability fully to take part, often because of poor mental health”.
Defendants should have a statutory entitlement to assistance to enable them to have a fair trial, the commission said.
Judges and other legal practitioners should receive training to help identify defendants who need support, it added.
Currently, if a judge decides a normal trial cannot go ahead, a so-called trial of the facts is held, in which a jury decides if the defendant is guilty.
However, the commission said the prosecution in such situations should also be required to prove the defendant intended to break the law.
It also wants judges to have the power not to hold a trial of the facts at all – if it is in the interests of justice.
Last year, former Labour MP Lord Janner was declared unfit to stand trial over allegations of child sexual abuse, which he had always denied.
The decision not to prosecute the peer – who died last month – because he had been suffering from dementia faced criticism.
Accessible and fair
Professor David Ormerod QC, law commissioner for criminal law and procedure, said it was “in the interests of justice” that defendants who can play a meaningful and effective part in their trial should have the opportunity for a full trial.
“Our reforms would modernise the law to bring unfitness to plead into line with current psychiatric thinking, making it more effective, accessible and fair for vulnerable defendants and victims, and providing greater protection for the public.”
He said it was “extraordinary” that unfitness to plead procedures were not currently available in magistrates’ and youth courts, “where some of the most vulnerable defendants in the criminal justice system can be found”.