04/03/2026

Written by: Zoe McCallum

Background

Edward Snowden stole hundreds of thousands of documents from the US National Security Agency to expose far-reaching and entirely covert global surveillance programmes run by the US and its “Five Eyes” intelligence counterparts (including Britain). He was the source for journalists at The Guardian and The Washington Post (who broke the story).

Snowden’s decision to become a whistleblower would later lead to a cultural dissection of the balance between national security and privacy in the age of big tech, ignite parliamentary scrutiny in several countries and ultimately, give rise to legislative reform. But when the facts of this case arose, it had been barely 2 months since The Guardian had first reported. Snowden was freshly charged with two counts of violating the US’s Espionage Act (and one of theft of government property). At best he was being painted as an irresponsible information thief – and at worst, a treasonable agent of terrorist causes.

David Miranda (the Claimant) was the spouse of one of the two Guardian journalists. In August 2013, Miranda carried some of Snowden’s stolen material on encrypted devices to the UK, on a trip to assist in his husband’s journalistic activity. Pursuant to a sweeping, suspicion-less, power conferred Schedule 7 of the Terrorism Act 2000, the Metropolitan Police intercepted Miranda at Heathrow, detained and questioned him for 9 hours, then seized the devices.

Decision

Miranda brought judicial review proceedings. The High Court (Laws LJ and Ouseley and Openshaw JJ) rejected his contention that the police had used their powers improperly, disproportionately, or in breach of his right to freedom of expression. But Miranda’s claim targeted not just the exercise of the power but the law which conferred it, on the basis it contained insufficient safeguards to protect journalistic material and sources. On that ground, the Court of Appeal overturned the Divisional Court’s decision, holding that the existing safeguards failed to provide effective protection of journalists’ Article 10 ECHR rights (primarily because there was no independent or judicial scrutiny prior to the police accessing journalistic material) and therefore the measure did not meet Strasbourg’s well known “quality of law” requirements. The Court made a declaration of incompatibility (under s 4 of the Human Rights Act 1998) in respect of the “stop” power used to stop Miranda (under Schedule 7 of the Terrorism Act 2000).

The direct result of the case was that Parliament enacted additional safeguards for the handling of journalistic material (under the Investigatory Powers Act 2016 and the Terrorism Act 2000), including a requirement for prior judicial authorisation in certain circumstances. The Home Office also amended the appliable Code of Practice.

Case comment

This outcome would not have been possible without the Human Rights Act 1998 and a body of Strasbourg case law sufficient for our domestic appellate court to find that prior judicial or other independent oversight was the “natural and obvious sufficient safeguard” in cases involving interference with journalistic freedom, even if not (yet) an “absolute rule:” [114]. Responsible journalism won that day – even as Snowden’s legacy as a whistle-blower had not met with universal acceptance.

Some 10 years on, the Strasbourg Court remains under constant political attack, including from sections of the UK press which nonetheless rely upon the journalistic protection it has conferred upon them, in this and other cases.  Big tech has grown in power. Even more of our lives are lived online. The rapid development of artificial intelligence, trained on vast datasets aggregating our personal data, is poised to make possible acts of espionage and invasions of privacy on a scale far beyond what we learned from Snowden’s revelations. And whilst responsible for astonishing breakthroughs in AI-led science and medicine, big tech has also disrupted the financial model upon which responsible journalism is based.

What shape regulatory reform next takes, and how our Courts will strike a future balance between privacy, national security and journalistic freedom, is entirely up for grabs. However, large technology companies and the security services are both engaged, at a very fundamental level, in activities which depend on public trust and confidence. It is not in the interests of either to adopt the attitude of the grumpy father in Ring Lardner’s story. His daughter asked tenderly “are we lost, daddy?” “Shut up,” he explained.

Matrix members

Matthew Ryder KC, Dan Squires KC and Eddie Craven KC represented Mr Miranda

Alex Bailin KC and Ben Silverstone represented Liberty (first intervener in the case)