Few would dispute that journalistic sources and material deserve special legal protection in a liberal democracy. But few would suggest that this protection should confer a licence to damage national security. Where should the balance be struck? This was the question confronting the English Court of Appeal in R (Miranda) v SSHD and another [2016] EWCA Civ 6.

The case is part of the long shadow created by the Snowden revelations. In August 2013, David Miranda, the partner of one of the journalists from the Guardian newspaper which broke the story, was detained and questioned at Heathrow Airport under the Terrorism Act 2000 (TA). He was in possession of some of the data obtained from Snowden and the devices containing them were confiscated.

A High Court challenge to these actions on the basis of an improper use of anti-terror powers and breach of human rights was rejected. Before the Court of Appeal, Mr Miranda argued that the High Court had erred in its approach.

Section 1 TA defines certain acts (or threats thereof) as “terrorism” (including not only violence against people or property damage but endangering life, creating a serious risk to the health or safety of a section of the public and interference or serious disruption of an “electronic system”). To thwart terrorists (per s.40(1)(b)), schedule 7 permits the detention and questioning of anyone entering or leaving the UK for up to nine hours, whether or not there are grounds for suspicion.

Giving the sole judgment in the case, Lord Dyson dismissed the arguments attacking the legality of the exercise of the anti-terror powers. Although the Metropolitan Police had acted on the basis of intelligence from MI5, there was nothing improper in this as “the police are plainly entitled to rely on intelligence emanating from the Security Service” [37].

Similarly, the Court rejected the argument that the detention was a disproportionate interference with the right to freedom of expression under Article 10 ECHR. It agreed with the High Court that the evidence invoking a threat to national security was “compelling” and that the seized data was “highly likely to describe techniques that have been crucial in life-saving counter-terrorism operations” [82]. By contrast the Court was unimpressed with the attempts to argue that poorly explained techniques of “responsible journalism” could neutralise any national security threat given the unpredictable ways in which seemingly innocent pieces of information might “jigsaw” together in the hands of terrorists.

However, the Court accepted that the lack of independent oversight of the use of such powers, rendered the legislative scheme incompatible with Article 10. It overturned the finding of the High Court that the restrictions in the current scheme were sufficient because it allowed too much interference with the confidentiality of journalistic material. It noted that “if journalists and their sources can have no expectation of confidentiality, they may decide against providing information on sensitive matters of public interest” [113].

Accordingly, Lord Dyson concluded:

“Prior judicial or other independent and impartial oversight (or immediate post factum oversight in urgent cases) is the natural and obvious adequate safeguard against the unlawful exercise of the Schedule 7 powers in cases involving journalistic freedom.” [114]

On the facts this strikes the right balance. The Snowdon revelations were one of the most important instances of journalistic activity in the last decade. Yet, they caused undeniable damage to Western intelligence capabilities. Consequently, the data Mr Miranda carried constituted a potential threat to national security and his brief detention in this instance to confirm the suspicion was proportionate. The risk of being detained in such a fashion is a feature of public interest journalism of this nature and by agreeing to transport the data drives in question Mr Miranda accepted those risks. Bluntly speaking, he knew what he was getting himself into.

One might question how Lord Dyson’s requirement of independent oversight might operate in more marginal cases. The Court in its consideration of proportionality noted that substantial ‘deference’ [79], [84] was to be accorded to the evaluation of the security services in assessing threats to national security. Care will have to be taken to ensure that this affords journalism substantive protection and does not function as a rubber stamp.

The Home Office subsequently claimed that its amendment to the Code of Practice for the exercise of Schedule 7 powers (at [75]), instructing officers not to search or confiscate journalistic material (as defined by s.13, Police and Criminal Evidence Act 1984) addressed the Court of Appeal’s concerns. It is doubtful if this is sufficient, since a change of operational practice will not cure the incompatability of the statutory regime.