Anti-terrorism provision held incompatible with human rights
A provision of the Terrorism Act 2000 has been held incompatible with the European Convention on Human Rights by the Court of Appeal in London.
The decision came in a case brought by David Miranda, the partner of journalist Glenn Greenwald, who was carrying a large number of digital files relating to data obtained by whistleblower Edward Snowden when he was detained under powers in schedule 7 to the 2000 Act.
Affirming the High Court, the appeal judges ruled that Mr Miranda had been lawfully detained, as the police were entitled to consider that material in his possession might be released in circumstances falling within the definition of terrorism, in that there was a genuine belief that his activity could endanger life or facilitate terrorist attacks, and therefore exercised the powers under the Act for a permitted purpose.
Although Mr Miranda argued that the use of the stop power was an unjustified and disproportionate interference with his right to freedom of expression and an interference with press freedom, Lord Dyson, Master of the Rolls, with whom Lord Justice Richards and Lord Justice Floyd agreed, said that on the facts of the case, the compelling national security interests outweighed Mr Miranda’s article 10 rights.
However Lord Dyson added that the stop power, if used in respect of journalistic information or material, was incompatible with article 10 of the Convention because it was not “prescribed by law” as required by article 10(2). The power was not subject to sufficient legal safeguards to avoid the risk that it would be exercised arbitrarily. As the 2000 Act is a UK statute, the court could not strike it down, but granted a certificate of incompatibility with the Human Rights Convention.
It will be for Parliament to decide how to provide the necessary safeguard. "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", Lord Dyson concluded.