UK Appeals Court Judge: UK Terrorism Act incompatible with human rights

From the Guardian Jan 19 2016 (emphasis mine)

Source: Terrorism Act incompatible with human rights, court rules in David Miranda case | World news | The Guardian

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.

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 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.