Regina (David Miranda) v Secretary of State for the Home Department [2016] EWCA Civ 6 (Court of Appeal)

Facts:

  • The appellant (M) appealed against a decision that the use of the power in the Terrorism Act 2000 Sch.7 para.2(1) against him had been lawful and compatible with ECHR art.10
  • M had been stopped and questioned at a UK airport by counter-terrorism police as he was carrying encrypted material derived from data stolen from the US National Security Agency which included UK intelligence material
  • M was the spouse of a journalist who he was trying to help
  • The police were satisfied that sufficient information had been provided to allow a lawful Sch.7 stop to take place
  • M submitted that:
    • Laws LJ had erred in determining the purpose of the stop
    • The literal interpretation of the definition of terrorism accepted by Laws LJ was too broad
    • The Sch.7 power, if used in respect of journalistic material, was incompatible with art.10 in that it was not “prescribed by law”

 Issue:

  • Whether Laws LJ had erred in determining the purpose of the stop?
  • Whether the literal interpretation of the definition of terrorism accepted by Laws LJ was too broad?
  • Whether the Sch.7 power, if used in respect of journalistic material, was incompatible with art.10 in that it was not “prescribed by law”?

 Ratio:

  • Appeal allowed in part.
    • The true and dominant purpose of the stop was to give effect to the PCS which was a sufficient basis to question M.
    • The literal interpretation accepted by Laws LJ accorded to the word “terrorism” a meaning which was far removed from its ordinary meaning.
    • The Strasbourg jurisprudence required prior, or, in an urgent case, immediate post factum, judicial oversight of interferences with art.10 rights where journalists were required to reveal their sources. The Sch.7 stop power was incompatible with art.10 in relation to journalistic material in that it was not subject to adequate safeguards against its arbitrary exercise.

Comments

Post a Comment

Popular posts from this blog

Sion v Hampstead Health Authority [1994] EWCA Civ 26

Facts: S appealed against the High Court’s decision to strike out his statement of claim for personal injury damages on the grounds that no reasonable cause of action was disclosed. S brought an action against the hospital alleging their negligent treatment of his son caused him to suffer psychiatric injury. Ratio: Appeal dismissed. However, even where a statement of claim disclosed no cause of action, the court had discretion to permit the plaintiff to amend it out of time provided that the proposed amendment arose from the facts in the pleading. S was unable to recover for psychiatric harm sustained as a result of watching his son die over a period of 14 days while becoming increasingly aware that the hospital was negligent in its treatment of him.
Read more

Summarise and discuss Lord Bingham’s eight ‘sub-rules’ of the Rule of Law.

Lord Bingham based his view about the rule of law on three key assumptions: Everyone should be equally bound by and entitled to the benefit of the law. Laws must be publicly and prospectively published. Laws should be publicly administered in the courts. The law must be accessible, intelligible, clear and predictable. Bingham’s rule of law suggests that it cannot exist without democracy. The rule of law is a kind of implicit contract between the state and the individual.
Read more

R. (on the application of Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598, (2002)

Facts: The first claimant was a British national who had been captured by the United States forces in Afghanistan and detained in Guantanamo Bay as an 'enemy combatant' He was deprived of access to court proceedings and legal advice, and applied for judicial review in the UK seeking to compel the Secretary of State for Foreign and Commonwealth Affairs either to intervene with the US government or alternatively to explain the omission to do so Issue: Whether the court had jurisdiction to review the decision by the Secretary of State not to intervene Whether the UK government had any duty to protect the claimant as one of its citizens Held: The Court could review the decisions on grounds of rationality and legitimate expectation The Court held that there was no legal duty on the state to protect its citizens in such circumstances
Read more