Was the nine-hour detention of David Miranda lawful?

 

To answer this, let us start with what we know about the detention..

The official statement of the Metropolitan Police was as follows:

At 08:05 on Sunday, 18 August a 28-year-old man was detained at Heathrow airport under schedule 7 of the Terrorism Act 2000. He was not arrested. He was subsequently released at 17:00.

This provides official confirmation of three crucial facts.

First, that the duration of the detention was just under nine hours.

Second, that the man was not arrested in respect of – still less charged of – any criminal offence.  The man was allowed to fly on to his destination.

Third, that the detention was under schedule 7 to the Terrorism Act 2000.

 

Now, taking these three facts together a fuller picture begins to emerge.

 

The power to question

The use of schedule 7 of the 2000 Act is significant.  The schedule is set out here, and it provides at paragraph 2(1):

An examining officer may question a person to whom this paragraph applies for the purpose of determining whether he appears to be a person falling within section 40(1)(b).

(Schedule 7 has legal effect under section 53(1) of the 2000 Act.)

The paragraph 2(1) power is limited to a specified purpose, that of “determining”  whether a person falls within section 40(1)(b) of the 2000 Act.  Therefore, if that is not the purpose then the power to question is not being lawfully exercised.

Paragraph 2(4) goes on to provide that an examining officer may exercise the power  whether or not he or she has grounds for suspecting that a person falls within section 40(1)(b).  This means that there does not actually need to be a reasonable suspicion.  However, paragraph 2(4) does not negate the requirement that the power be exercised for the purpose specified.

 

The power to detain

A power to question is not the same as a power to detain.

And so paragraph 6(1)(b) provides a power to detain a person for the purpose of questioning.

However, paragraph 6(1)(b) does not provide a power to detain that person – unless they are being questioned to determine whether they fall within section 40(1)(b) of the 2000 Act.

Therefore, this is not a general power to detain, and it is conditional on the person (a) being questioned for (b) the specified purpose.

So if the person is being detained for any other purpose then the power to detain is not being lawfully exercised.

As long as the power to detain is being used for its appropriate purpose then under paragraph 6(4), that detention can be for up to nine hours. However, the nine hours long-stop only applies whilst  the examination continues.  Once it is over before the end of nine hours, then the person should be released.

 

What section 40(1)(b) says

So schedule 7 provides a limited power to question and a limited power to detain.

Both the powers to question and to detain are conditional on the purpose of whether a person falls within section 40(1)(b) of the 2000 Act.

So the next question is fundamental – what does section 40(1)(b) say?

Section 40(1)(b) is a definition clause, and it provides the following definition of “terrorist”:

a person who…is or has been concerned in the commission, preparation or instigation of acts of terrorism.

Section 40(1)(b) thereby is a  limiting definition – the questioning (and any period of detention) under schedule 7 is for seeing if a person falls within this definition.  Accordingly, any questioning (and any period of detention) which is not for this specified purpose is outside the scope of the provision.

This limit is also significant as we look at the power of search and examine: paragraph 9 limits the power to examine property to determine whether the person falls within section 40(1)(b).  It is not a general power of search.

However, once property has been taken, then paragraph 11(2) provides it can be retained:

(a) the purpose of examination, for a period not exceeding seven days beginning with the day on which the detention commences, [or]

(b) while [the officer] believes that it may be needed for use as evidence in criminal proceedings [...]

So, once the property has been taken from the detained person it can be kept for evidence in criminal proceedings, regardless of whether the detained person is within the category of “terrorist”.

 

Compulsion and coercion

Under paragraph 5(a), the detained person “must give the examining officer any information in his possession which the officer requests”.  Under paragraph 18, it is an imprisonable offence for that person not to comply with any duty (including the duty to provide information).

So the questions are asked under threat of coercion.

 

What schedule 7 is for and what it is not for

The legal powers provided under schedule 7 are broad, but they are also confined.

Unless they are being used for the specified purpose of determining whether the detained person fills the definition of “terrorist” under section 40(1)(b) then the power to detain and question cannot be lawfully used.

And if that is not the purpose, then the power to search for property to assist in determining whether a person is a terrorist is not triggered, and this in turn means that the power to retain any property for evidence in criminal proceedings is also not triggered.

In other words, schedule 7 cannot be used as a fishing expedition for property.

 

A detention of nine hours

David Miranda was detained for just under nine hours.

This is exceptional.

According to the official report on use of terrorism powers, only 0.06% of detainees are held for more than six hours.  This is not surprising given the limited scope of the question to be determined.  It seems 97.2% of those detained are freed in less than one hour.

For someone to be detained for almost the full nine hours is exceptional.  Even the “watchdog” for anti-terrorism legislation has called it “unusual”.

 

What the Americans have said

All the above can be worked out just from the Met police confirmation.

But what makes this case especially interesting – and, for me, worrying – is something which has been reported about what the American government knew. (Transcript.)

It is reported that the American government had advance notice of the detention.

If this is the case, then this appears to open a serious question [*Add for clarity - in this particular case] – if the officers knew in advance that Miranda was to be detained, they knew who he was.  He was not some random passenger.

Accordingly, if they knew who he was, then it would seem – to me – that [*Add for clarity - in this particular case] they would not therefore need to question and detain him to see if he fulfilled the section 40(1)(b) definition.  They knew full well whether he did, or if he did not.  The questioning would be artificial.

In other words, by flagging the American government with an advance notice of the detention [Add for clarity - in this particular case], it would seem to me that [*this] detention could not have been genuinely for the purpose of determining if Miranda fell within section 40(1).

And if  that was not actually the actual purpose of the detention, then there would be no power to question, detain and search David Miranda at all.

 

But in any case, and in summary: if the questioning, detention, and search of Miranda was for a purpose other than to determine if he was a terrorist, then it was unlawful.

 

[Add - 20 August 2013 - Joshua Rozenberg raises the alternative ground of illegality that the nine hour detention was disproportionate.]

[*Adds - 20 August 2013 - changes in the last few paragraphs to make intended meaning clearer - I was not making a general point that prior notice and awareness always meant a detention unlawful - but that in the case of Miranda it seems to me that they would have been aware that he was not a terrorist.]

 

 

 

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106 Responses to Nine hours in the life of David Miranda

  • Phil says:

    “In other words, schedule 7 cannot be used as a fishing expedition for property.”

    Of course it can. All they have to do is use the pretext that they’re doing a section 40(1)(b) investigation.

    Simple. I don’t see anything in that law which prevents them from ‘suspecting’ anyone at all.

    • David Allen Green says:

      I disagree – the powers have to be exercised for the specific purpose in Schedule 7.

      • Phil says:

        I know where you’re coming from, David, but how on earth can one prove their real intent? They can claim that purpose, even knowing it to be false.

        • Gizmos says:

          Yes, you describe the present reality and position taken by the British government, but that is what’s at issue, and the point at which we must take offense and hold government responsible for illegal activity.

          • Stephen says:

            Then I guess the question that next needs to be asked is who has burden of proof of the police intent in any court case? That is to say, that a claim being made is in fact true and valid. That would surely be the party to the case claiming such an intent. That would presumably require furnishing testimony and/or material evidence to the court as to the nature of the suspicion which caused the detaining of David Miranda in the first place.

            For example, oral testimony or CC TV footage that Miranda had been acting in particular fashion which had aroused the officers’ suspicions.

            Without such testimony or evidence the implication would surely be that any claim they had made was without justification, which in turn would imply that Miranda had been detained on a purely arbitrary basis.

    • I’m with Phil. Here’s a scenario that includes contacting the US:

      “We contacted American officials to ask what might be things to look for on Miranda’s person, assuming that he has the potential to be a terrorist, based on what his partner Glenn Greenwald has already revealed he has in his possession (ie, those still unpublished 49 slides).”

      There you go.

    • Heidelja says:

      The coup de hard for it being a fishing expedition for someone NOT being a terrorist is…

      “It is reported that the American government had advance notice of the detention.

      “If this is the case, then this appears to open a serious question [*Add for clarity - in this particular case] – if the officers knew in advance that Miranda was to be detained, they knew who he was.  He was not some random passenger.” Also from the Americans they’d know he was NOT a terrorist and hence there being no reason for him to have been detained. Instead the Met could have said he was detained the full nine hours because they were waiting on the Americans to tell them, but how’d that make everyone look?

  • Coventry Man says:

    I don’t follow why the questioning must have been unlawful if the US were told that it was going to occur beforehand.

    If the scenario is that UK tell US:

    “we’ve noticed that Miranda is going to be coming through London shortly. We suspect he may have something to do with terrorism, or may have something on him that connects him with terrorism, possibly through his boyfriend. We’ll speak again after we’ve seen him.”

    They then question him to see if their suspicions are correct. They don’t get enough from him to justify taking matters further so let him go. They are still considering whatever they get from the stuff that has been seized.

    What is unlawful about that?

    We aren’t considering whether this was politically inept. Just whether it was legal.

    • Heidelja says:

      But to be detained for 8hrs 55mins – virtually the entire 9hrs legally permitted? What you describe should take an hour and someone be on their way. The question to be answered is… For those true “terrorists” found (if any) under Schedule 7, how long has it taken?

  • Happy Larry says:

    If the detention was illegal – as it appears it was (there was and has been no evidence of terrorism in this case) then there should be charges laid by the police and the case should run the due process. lets see if the Metropolitan Police commissioner has got the balls to do this. If he has not – then why do we bother having him there to protect us?

  • LightingMonkey says:

    Surely it makes no difference if they knew who he was, if they did not know what he may be carrying. Is it not the case that the results of the examination of his possessions may have determined whether or not the detention was valid under 40(1)(b) ?

    Maybe it took that time to examine the files on his machines.

  • Arie Fique says:

    How does knowledge of a person’s identity in advance negate the possibility of questioning them under pursuant to a 40(1)(b) investigation?

  • Matt says:

    This scenario highlights the breadth of power given (and opportunity for abuse of that power) under Sch 7, especially when considering there is no requirment for reasonable suspicion. If there is never a requirement to prove that there was any reasonable suspicion that the individual detained was involved in terrorist activity (thus coming under S.40(1)(b)) then under what circumstances could someone bring an action saying the power has been abused? As long as the police can establish some sort of pretext that an individual is being questioned regarding terrorism, it is legally entrenched under 4(2) that this is enough.

  • Jonathan says:

    “In other words, by flagging the American government with an advance notice of the detention, it would seem that the detention could not have been for the purpose of determining if Miranda fell within section 40(1).”

    I don’t follow the logic of this. Surely its possible to know the identity of an individual, but still have key questions remaining as to whether that individual appeared to be a terrorist. The opportunity to detain and question the individual could reasonably resolve those questions allowing their arrest as a terrorist or release as innocent. I’m confused by the language of 2(1) “determining whether he appears to be”, but presumable the “appears to be” is legalese for “we possess enough evidence to arrest” or the like? Really interesting summary of an awful law and situation. Thanks.

    • chris moffatt says:

      Obviously the only reasons for detaining Miranda were 1). to get the data on his electronic devices. 2). to intimidate his partner Greenwald. There conveniently happened to be a law which could be strained and twisted enough to allow this without further legal complications such as having to ake an arrest, provide evidence and so on.

      It is unfortunate that the authorities in the UK have stooped this low to curry favor with their masters in Washington. I hope the loss of whatever credible independence the UK had was worth it.

  • Adam Wagner says:

    David – I agree with your analysis up to the final four paragraphs. But I don’t see why a pre-planned (even if by weeks or months) detention and questioning would necessarily be outside the purposes of Schedule 7.

    For example, if a person is known to the security services – say, they are suspected of being a member of Al-Qaeda – and they are travelling through a UK airport, why couldn’t they be stopped, detained and questioned under Schedule 7 in order to see whether they are “preparing” a terrorist attack during their stay?

    It would be artificial in the extreme (and would render the power a bit useless) if only those who were *not* known to the authorities could lawfully be detained for the purposes of questioning.

    My view, on the scanty facts available, is that if this is going to be an unlawful use of the power it is more likely to be so because what Miranda was being investigated for did not fall within the definition of terrorism. But that definition is so widely drafted (as it the power generally) that I would be surprised if – on the current facts, i.e. he may have been carrying illegally obtained state secrets – the power was unlawfully exercised.

    • David Allen Green says:

      Fair points Adam. And I agree with your counter-example of an Al-Qaeda member. Also, my suggestion is not that “only those who were *not* known to the authorities could lawfully be detained for the purposes of questioning”.

      But: I still disagree in the case of Miranda. It would seem to me that what would have been known to the UK prior to the detention about Miranda would have meant the purpose of the detention (and search) was not to make the schedule 7 determination. On current information, it is not plausible that was the purpose of targeting his stop-over at Heathrow.

      That said, I could have been far more clear in my final section.

      • Gareth says:

        I don’t see how showing that Miranda was unlikely to be a terrorist has any relevance. There is no requirement that the detaining officer believes (or even suspects) that the person they’re detaining is a terrorist. No matter how implausible it is that Miranda was a terrorist (or could appear to be one), the detention could still be legal. While we have good reason to suspect that there were other motivations for detaining Miranda, none of the facts as they stand demonstrate that the officers at the airport did anything other than check whether Miranda appeared to be a terrorist or not.

        The fact that there is any ambiguity at all over the legality of this incident shows why a reasonable suspicion requirement: if the law required reasonable suspicion there is no way that this abuse could have taken place.

      • The Meissen Bison says:

        It would seem to me that what would have been known to the UK prior to the detention about Miranda …

        Surely that’s pure speculation?

        The analysis is interesting but it degrades as it progresses. The forensic examination of relevant §s at the beginning is useful and interesting but the significance attached to UK/US liaison is a leap of faith which fails to convince and the statement above is nothing more than assumption.

        I’m afraid it all looks rather parti pris to me

      • Chris Connolly says:

        The Home Office has let the cat out of the bag. A spokesman said: “If the police believe that an individual is in possession of highly sensitive stolen information that would help terrorism, then they should act and the law provides them with a framework to do that. Those who oppose this sort of action need to think about what they are condoning.”

        Offences under ss.58 and 58A are not covered by Schedule 7. If the purpose of the detention was to investigate ss.58 and 58A offences, as the Home Office spokesman appears to indicate, then it appears to me that the detention was very probably illegal.

    • Heidelja says:

      But again… to be detained for 8hrs 55mins – virtually the entire 9hrs legally permitted? What you describe should take a few hours and someone then be on their way. The question to be answered is… For those true “terrorists” found (if any) under Schedule 7, how long has it taken for it to be determined?

  • Nick says:

    Whats the statutory definition of terrorism? I understand its much broader than our ordinary language definition and could easily be used to cover grievous acts related to investigative journalism.

  • Coventry Man says:

    I agree with Adam Wagner. I suspect the authorities are on the legal side of the line here.

    The real legal beef is that the powers are too wide, not that those using them took advantage of this. The political beef is the other way round.

    • David Allen Green says:

      I think we all agree that if the questioning/detention/search was not for the purpose of a schedule 7 determination then it was unlawful.

      I think the advance notification to the US suggests that the questioning/detention/search could not have been for the purpose of section 7; but some of you are not convinced. But that is the only point we differ, I think.

      • Coventry Man says:

        The difference is that you think the questioning etc “couldn’t be” for the purpose of Sch 7. We suspect that it “wasn’t” for the purpose of Sch 7 but can’t prove this. Therefore it “might be” and is thus legal.

    • Phil says:

      That sort of power will always be too wide. You can’t conclusively prove that someone isn’t a terrorist or terrorist sympathiser, only that they are.

      David says “the questioning (and any period of detention) under schedule 7 is for seeing if a person falls within this definition”.

      Schedule 7 seems to me to be a fine example of ‘guilty until proven innocent’ thinking.

      They could stop anybody and demand proof that they’re not a terrorist sympathiser, and still be within the letter of the law.

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  • Phil Jones says:

    So here’s an interesting question. Would the police have been allowed to use schedule 7 on someone they thought might have been involved in a drug transaction?

    They don’t know if he is, but they suspect that there’ll be accounts on his computer that confirm something to that effect.

    Would it be allowable or unallowable?

  • Michael Meyers says:

    I’ve just had a look at the Terrorism Act that you linked to. I would think that Mr Miranda could be reasonably questioned about terrorism under the provisions of section 58 and 58A of the act. I think this would be a big step for a government to be charging journalists under those sections but it would possibly give some justification for the questioning.

    The sections of the act that I have referred to relate to collection of information and collection/publishing information about member of the armed forces and intelligence services. This includes collecting information that might be useful to a terrorist (section 58). It would also be anyone who publishes or communicates information about an individual who is or has been a member of HM forces or intelligence services (section 58A). These are scarily general provisions that could apply to just about anything!

    This would seem to me to be reasonable grounds for the questioning. Or at least reasonable in the mind of a police officer, if not reasonable in the mind of any sane member of the general public.

    Note, I’m not a lawyer so could be reading this act completely incorrectly.

    • David Allen Green says:

      But he was not questioned under s. 58?

      • Michael Meyers says:

        Ah. OK. I see where I went wrong…. was reading based on s. 40(1)(a) and not s. 40(1)(b). I need to be more careful when reading legislation in future.

        • Phil says:

          You’re not the only one making that mistake. Home Secretary Theresa May: “I think it’s absolutely right that if the police believe that someone is in the possession of highly sensitive, stolen information that could help terrorists, could risk lives … that the police are able to act and that’s what the law enables them to do”. Boiled down a bit, “the stop was justified under s. 40(1)(a)”.

    • Felix says:

      I believe that the relevant definition of “Terrorism” is set out in the act here:

      http://www.legislation.gov.uk/ukpga/2000/11/section/1

      It is fairly specific, and whereas an individual who the security forces know has been in, say, Pakistan and maybe across the border in to Afghanistan, could be stopped and questioned legitamately on the basis that the authorities think it is worth it, in the case of Miranda, about whom the relevant facts are known, there does not seem for there to be any cause to be supsicious of activities related to ‘Terrorism” under the above definition.

      “An examining officer may question a person to whom this paragraph applies for the purpose of determining whether he appears to be a person falling within section 40(1)(b).”

      Under this clause of Schedule 7, tha fact that you already know lots of relevant detail about Miranda (abode, recent activities in Germany, associates, destination etc.) and none of them are related to Terrorism renders the questioning unnecessary and therefore the detention illegal.

    • Ian batten says:

      it is also not easy to argue that David Miranda is a journalist if the issue is his carrying documents which he explicitly disclaims knowledge of.

      the part of this saga that annoys me is the obvious grandstanding by all parties. if greenwald has hot top secret document s he wants to move to brazil, he should encrypt them and email them. all this sneaking memory sticks onto planes stuff is a bit too John Le Carre. and it is silly for the authorities to operate on the assumption he hasn’t already emailed them. so the authorities are putting on a Theatre show to intimidate greenwald and Miranda, while greenwald and Miranda also make good copy for themselves. meanwhile, the fundamental issues (is what snowdon said true, is it shocking, and is his release of it justifiable?) are not advanced on whit. it’s. all a silly season sideshow.

      • RickD says:

        Nobody is claiming that Miranda is a journalist. They are claiming he was working as a courier carrying documents between journalists, and that the law has offered protections for people working with journalists in that capacity.

        If you want to accuse Miranda’s side of “grandstanding” you should support your argument with citations, and not simply provide hearsay.

        Your presumption seems to be that Miranda was carrying the raw data. That seems rather unlikely to me. It seems far more likely that Miranda was carrying a finished product, something ready for publication, and that the government was seizing it to get advance notice of what they would have to deal with next. As many have pointed out, there’s no point in “getting the data back.” It’s not like the data is lost to the government – they still have copies. And it’s not like seizing one copy will somehow plug the leak for the US. There are certainly multiple copies secreted in various places around the world.

        So if the government is seizing files from Greenwald, it is to spy on him and figure out what his next move will be.

        And of course, the “terrorism” thing is just so much hogwash.

  • Alex says:

    David – I tend to agree with you here, but think your final paragraphs could do with some reworking. It reads as if you’re making a general point that just because the detention is preplanned does not make it contrary to the purposes of S.7. As a counter point, somebody could be a known sympathizer potentially off to Afghanistan by way of Pakistan to undertake terrorist training, or they could be a known sympathizer off for a family wedding. Knowing who was traveling doesn’t necessarily negate the value of S.7.

    However, in this case I think you’re actually making a specific point that knowing that the planned detention of a partners of a journalist disseminating classified documents made it extremely doubtful that he fell under the ‘narrow’ definition of S.7. I agree your view on this, but am unfortunately doubtful that any sanctions on the officers or their superiors will occur.

    Mensch makes an interesting (though probably inaccurate) point that by being engaged in the (perhaps unlawful) dissemination of classified documents (that she claims risk the life of security service operatives) he may fall within the scope of S.1 of the Act. She claims that the release of the documents fulfills “1 b&c and 2 c,d,e.” presumably by fulfilling 2(c-e) it fulfills 1(a). Do you agree that the law really is so broadly drafted that this could be true? If not are there other powers that could have been used for this purpose?

  • David Stark says:

    Perhaps the contents of the Snowden files are thought to include information about members of the armed forces as described in Section 58A? Would that be enough to detain Miranda?
    http://www.legislation.gov.uk/ukpga/2000/11/section/58A

    • David Stark says:

      Just saw the reply above. To determine whether Miranda falls under section 40, can they question him about any possible release of information as described in section 58A, to see if he has committed an offence? Or is questioning only allowed after a conviction for something in 58A?

  • ed says:

    Perhaps they are worried that the publication of the information will lead to terrorist acts, therefore he was inciting terrorism?

    • RickD says:

      That’s not legitimate grounds for censorship. The power you describe is so vague and vests so much power in the police it is essentially carte blanche for them to stop any publication of anything.

      “Upsetting people” is not “inciting terrorism”.

      • RickD says:

        (If “upsetting people” were “inciting terrorism” then no sporting events could ever be shown on TV. You never no when some football hooligan is going to be depressed after his team loses and go on some kind of rampage.)

  • TJ says:

    To me the worst thing is the blurring of the line on who they get away with calling a “terrorist”.

    Here in the US everyone from anti-fracking activists to monetary reformers have been called “terrorists” by government officials.

    Combine that with the NDAA Obama signed into law that allows anyone labeled a terrorist to be detained INDEFINITELY with no due process, and the Police State agenda becomes frighteningly clear.

  • paul canning says:

    To my non-legal mind your argument makes sense. But if there was reasonable suspicion that Miranda was carrying state secrets could they have questioned him using some other law? Surely there must be some law in which a courier can be stopped and questioned under those circumstances? Why wouldn’t they use that law rather than this one?

  • tony b says:

    Isn’t the relevant question – Did their knowing who Miranda was, make it more or less reasonable to question whether he may be terrorist? In the example above if they knew that someone was a member of Al Qaeda that would increase ( rather substantially! ) the probability of his being a terrorist, however, knowing that he was the partner of a respected journalist at the Guardian would seem to suggest that he is much less likely to be a terrorist unless they have some other information about him. If they knew in advance that he was less likely to be a terrorist than a passenger chosen at random wouldn’t that indicate that the power to detain was abused.
    In addition surely a person cannot be considered to be a terrorist solely because he is, or may be, in possession of information leaked by Snowdon because the very fact that it has been leaked ( to at least one newspaper and possibly to the Russians ) means that it is no longer secret and is in the possession of many people who are demonstrably not terrorists.

  • Rémi says:

    As the NSA runs a full featured facebook of its ows, it knows very well who is who so no one should be ever trigger this mighty law.

  • Homo Economicus says:

    I think you need something more than this analysis includes. Knowing who he is does not automatically mean that officials know that he is not someone who falls within the relevant section 40(1)(b). To wit, government could know that the person they are questioning is John Smith, and still not know whether John Smith falls within the relevant section.

    What is key here is that government knew that the person they detained was David Miranda AND they also knew in advance that David Miranda is a person who does NOT fall within 40(1)(b).

    I think the stronger argument is that the content of the questioning proves that the questioning was not for the purpose of determining whether David fell within the definition under 40(1)(b), but rather was a pretextual detention and examination for purposes other than what the law specifies.

    I think Sections 58 and 58a might give the government more leeway, but if this were a US statute, it would likely to be unconstitutional, for reasons others have outlined with regard to vagueness and the potential to penalize protected political speech and reporting by journalists.

    • Homo Economicus says:

      PS The reason the argument about knowing that David is NOT a person under 40(1)(b) is weaker is because the legislation explicitly says that the official can exercise their power whether or not the official has grounds to suspect. One supposes that knowing in advance that the person does NOT fall under 40(1)(b) makes the questioning groundless, but the legislation seems not to care whether the questioning is groundless. Hence, the stronger argument is wrt the actual purpose of the questioning.

      • RickD says:

        The argument here is that they need not have information specific about a person to instigate this kind of questioning, but their purpose in general must be counter-terrorism. The law doesn’t, for example, give the police the power to detain a woman just because a policeman finds her attractive and wants her phone number.

  • Manny Alvarez says:

    Well written piece and as evident by the discussion thread, very thought provoking. I took a quick look at the link to the terrorism act you reference. The definition of terrorism is quite broad and given the circumstances of David Miranda’s departure, itinerary, and or conduct prior to his return to the UK (all unknown to me) , one cannot exclude that it was an appropriate detention in order to determine whether his conduct fell within the broad parameters of the Act.
    David Miranda has been identified as a partner of Glen Greenwald. It is apparently undisputed that Eric Snowden stole state secrets of the United States under the guise of exposing unethical, improper or perhaps even illegal conduct of the US. Glen Greenwald has apparently seen those documents and wrote in an early piece as I recall that many of the stolen documents would in fact jeopardize the national security interests of the US. According to Greenwald those documents are now “safe” from disclosure. If all the foregoing is true it would seem derelict of the UK not to have investigated and determine whether Mr Snowden might have had a change of heart re the dissemination of the stolen secrets.
    Lastly it would seem that in any analysis of the propriety of the conduct of the British agents, one would have to examine the written decisions of the Courts interpreting this Act. Its broad power is apparent on its face and it may well be that under facts similar to or almost identical to these, the detentions have been affirmed. Some Acts have a stated public purpose of ensuring the peace and protection of the public and therefore the Courts may well be construing that act liberally in order to give meaning to the stated purpose. Perhaps the courts have in fact previously ruled that conduct akin to what occurred here is lawful.

    • Jim says:

      “It is apparently undisputed that Eric Snowden stole state secrets of the United States under the guise of exposing unethical, improper or perhaps even illegal conduct of the US.”

      Is it stealing? Is ‘guise’ the right description of what was done?

      “The definition of terrorism is quite broad and given the circumstances of David Miranda’s departure, itinerary, and or conduct prior to his return to the UK (all unknown to me) , one cannot exclude that it was an appropriate detention in order to determine whether his conduct fell within the broad parameters of the Act.”

      If you still think that his whistleblowing was a guise and involved theft, you need to explain how theft and guises make someone a terrorist.

      “Glen Greenwald has apparently seen those documents and wrote in an early piece as I recall that many of the stolen documents would in fact jeopardize the national security interests of the US.”

      If that is true, how does possession of such material make someone a terrorist?

      “Some Acts have a stated public purpose of ensuring the peace and protection of the public”

      I don’t feel that I have been protected or that my peace has been ensured by these events. Do you?

      Since you are making general assertions about Acts and Judges I will make some too: sometimes the law is an ass, sometimes judges are out of touch, or corrupt, sometimes the public should not trust judges, sometimes the public should have no faith in the goodness of the law or the institutions which makes its wheels turn.

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  • Mark says:

    Hello David.

    Let’s pretend that someone had said to the US government: “If anyone harms Mr Snowden we will release lots of secret documents that include names of your agents”.

    I’m not a lawyer, but on a quick reading of Section 1 of the Terrorism Act 2000, that kind of threat would appear to fall within the definition of terrorism.

    Wikileaks have apparently put out 400Gb of encrypted “insurance policy” in the public domain.

    Perhaps the “police” suspect that someone is carrying the encryption key?

  • Rupe says:

    Seems to be a lot of excuses being made btl. They knew he wasn’t a terrorist. They also knew that any documents he was carrying were not terrorist in nature; embarrassing or secret perhaps, but not terrorist. Do you really think there were documents on bomb making or such like? No, if there were documents they were being transported from one card carrying nationally recognised journalist to another for possible use by a national media company. Such media companies are bound by law and ethics to be incredibly careful with any nationally or internationally sensitive material they acquire and this particular one has a track record in only making available such information that is in the national interest and which shows govt behaving in arguably illegal ways. In no way terrorism.
    So, they knew who he was. Seems fairly clear this was an abuse of this particular law.

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  • Perhaps the key lies in the definition of “terrorism” under the Terrorism Act of 2000.

    (2) Action falls within this section if it:
    (d) creates a serious risk to the health or safety of the public or a section of the public, or
    (e) is designed seriously to interfere with or seriously to disrupt an electronic system.

    These definitions are odious.
    The British government could argue that publishing documents further endangers the safety of the public by informing actual Terrorists on how to avoid being monitored and thus be more likely to succeed in their plots.

    Second, the British Government could define NSA’s Prism and the GCHQ equivalent as electronic systems, which the publication of further documents might disrupt their activities, as they are meant to be secret.

    Therefore the British government could be lawful in this if they were using the detention to determine if David Miranda was carrying, and helping in the publication of, further documents relating to GCHQ or the NSA. If he was, he is a terrorist. If he wasn’t, he isn’t.

    • Mary Contrary says:

      I agree, but this point raises more questions.

      The police claim that the detention and questioning was legal. Let us leave aside the question of whether advance knowledge of Miranda’s identity disproves or strongly suggests that the purpose of the questioning was not the authorised purpose. I think we are all agreed, following David’s reasoning, that the questioning can only have been lawful if done for the purpose of determining whether Miranda was “concerned in the commission, preparation or instigation of acts of terrorism”.

      It seems clear that Miranda was carrying documents, likely classified, for the purpose of enabling the Guardian to publish those documents as part of its ongoing revelations on the actions of the security and intelligence establishment.

      Miranda may protest his innocence of knowledge of the contents, and he may in fact have been unaware of the specific nature of the information he was carrying, but it seems reasonable for the police to believe him aware of what he was going in the generality (and to disbelieve any denial). More to the point, his awareness of whether he was “concerned in the commission, preparation or instigation of acts of terrorism” isn’t relevant, only the fact of whether he was or not.

      This then raises a crucial for the police: do they consider that carrying those documents to the Guardian for publication constitutes commission, preparation or instigation of acts of terrorism?

      If it is, the questioning was lawful. But equally, if the questioning was lawful, it seems tantamount to saying the Guardian is engaged in a terrorist campaign.

      That would have quite profound implications, not least for the Guardian and the other measures to which it might be subjected in future.

      So we need to know (a) whether the police actually believe this and (b) if they do, whether they are legally correct to do so. If they don’t, or if their legal interpretation is wrong, their guidance and training needs to be corrected. If they do and they are entitled to, we need to consider whether we are content to live in a society that deems the Guardian’s behaviour terrorism, or whether we prefer to reform the Terrorism Act.

  • Mark H says:

    Are there restrictions (provided for by other laws) that prevent an individual being questioned continuously for nine hours? That is longer than most working days.

  • David Dredge says:

    Is it just me or has the definition of a ‘terrorist’ changed?

  • Richard says:

    Not a legal bod. Let’s look at this from the perspective of a reasonable man. In all probability the US asked the UK to put pressure on Miranda to put pressure on his partner in order to get him to stop working on the Snowden papers. UK jumps to attention and tries to find a way to do this. Rightly or wrongly they pick this section 7 thing. Keeping Miranda for 9 hours shows this to be the aim. They didn’t need to hold him that long. It was putting the fighters on plain and simple. Big Brother watching us? No it’s just everybody’s favorite Uncle Sam.
    The war on terror has overflowed into the wrong areas. Paranoia is a dangerous state.

  • I am not persuaded by the advance notice point, but I am disturbed by the use of the legislation. The essential complaint seems to be that Miranda had classified material leaked by Snowdon. Assuming for the moment that this IS material about which secrecy is justifiable why was he not simply arrested for handling? That would address the real issue, ensure that investigation was proportionate and either lead to a charge or to his release. It would also ensure judicial scrutiny at an early stage if he was charged.
    The contents of the handled material would ordinarily be irrelevant in the determination of any criminal proceedings, so the suggestion that secrecy was somehow being preserved in terms of the contents of anything in Miranda’s possession by using the terrorism legislation is misconceived.
    The argument that this was proportionate because there was no arrest seems nonsensical in the context of 9 hours enforced detention. Semantics aren’t to be confused with a substantive defence. The issue of why terrorism legislation was used requires explanation, because a less intimidating regime offering more protection was equally available. The authorities ought not to opt for the most frightening way of doing something.

    • Liz says:

      With respect depending on the contents of the documents s1 of the 2000 Act may well have been engaged. So although you may be correct in a normal handling offence, I’m not convinced by your argument in this context of the 2000 Act.

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  • Tombo4 says:

    This is an uncharacteristically confused post. After a nice accurate summary of the substance and purpose of Sch 7, it wanders off into the wholly incorrect assertion that, if the identity of the person is known, Sch 7 cannot lawfully be used to detain and question him in order to see if he is a person falling within s 40(1). The power relates to investigating his possible involvement in terrorism – ie what he is doing, carrying, disclosing, endangering etc etc – it is not limited to finding out who he is.

    On this analysis, if Tommy Terrorist is a convicted bomber serving a sentence of imprisonment, the Sch 7 power couldn’t ever be used to interrogate Mrs Teresa Terrorist, who may (or may not) be wholly innocent.

  • Nick Jones says:

    The Police abuse the Schedule 7 of the Terrorism Act

    I was detained under the Terrorism Act on May 4th 2013. I was on a flight from Heathrow to Glasgow Airport. I landed at approx 2300 where I walked through the main hall towards baggage reclaim and as I was stopped by 2 men in suits.I was taken to a room and I was questioned about where I had been, what I had been doing and asked for names of people. They searched me, I was told to unlock my phone where one of the officers started writing my phone numbers down from my phone book, he then took out my cards from my wallet and took photographs of my credit cards and others, searched my Ipad. I asked what if I had refused to cooperate and they replied “We would have done it the hard way”

    I was not given any reason why they stopped me, they never gave there names either,

    I was so shocked by this as I am a white British Male with a English accent and a British Passport Holder yet this never mattered. This don’t add up at all and i believe they abused the power because i was at a protest in London covering a story independently.

    This has to stop now as it is a abuse of power.

  • Richard says:

    Just because you are aware of someone’s identity and are intending to detain him, does not mean that the detention was not to determine whether he was a terrorist. The authorities can have a suspicion and use the questioning to ascertain whether the individual does satisfy the definition. Surely that is a reasonable interpretation, or else what basis do they have for detaining anyone? Racial profiling or random search? Or is the act intended to preclude questioning to determine if someone is a terrorist, where there is a suspicion that they might be? Surely not.

    I think I understood the nested caveats in there. The detention can only be for questioning with the purpose of this determination and the examining of property can only be to assist that determination. Could not the 9 hours be justified if it took a long time to examine the electronically stored data that was being examined?

    What I don’t understand is what is meant by ‘a fishing expedition for property’? Would that be simple noseiness – seeing what information Miranda had? Does the lawfulness then rest on whether the investigation of the data was to determine if Miranda was a terrorist (which would be the case if he was in possession of data that could be used for a terrorist end? Or would there have to be evidence that he intended to use that data for that end?) or if the purpose was to see what he had?

  • TruffleWednesday says:

    Your argument seems to take it as read that the definition of terrorist does not apply to Miranda. If it does then the rest of your concerns melt away.

    From your quote above a terrorist is defines for the purposes of Section 40(1)(b) as:

    a person who…is or has been concerned in the commission, preparation or instigation of acts of terrorism.

    Is there a specific meaning for the word “concerned… ” here?

    Would not the following scenario meet the definition?

    Snowden steals sensitive information regarding the mechanisms by which the security services monitor terrorist activity. He gives this information to Greenwald. Greenwald then uses his boyfriend to transport that information internationally. If Miranda were to take that information to a cafe in Sana’a where he met a representative of Al-Qaeda saying “here is information about how the US and UK government are monitoring terrorist activities.” then that would, I suggest, clearly fall into the category of being “…concerned…in the … instigation of terrorism”

    If however, Miranda is assisting Greenwald in telling everyone “here is information about how the US and UK government are monitoring terrorist activities” then that everyone necessarily includes terrorists.

    Why would a charge of assisting terrorists be negated if, in addition, you give the same information to other people who are not terrorists?

  • Nile says:

    Be careful what you wish for.

    Imagine taking the case to court and losing: now the authorities know that any pretext will do, and the terms of the judgement may well present an extension of these powers.

    Imagine taking the case to court and winning: however transparent the pretexts are shown to be – mendacity, even to outright perjury – no-one will be disciplined for offering such dangerous justifications for their actions. None of the officers will be disciplined for their actions. None of them will suffer any legal sanction beyond the judge’s rebuke.

    Winnning, and reinforcing the culture of impunity.

    Imagine winning, and watching case after case where this behaviour is repeated: the UK Border Agency and the former Home Office have form when it comes to disregarding the law. Winning, and reinforcing the contemptuous lawlessness of HMG’s most unpleasant officials.

    Worse, imagine winning the case, the inevitable appeal, and then the final appeal by HMG to the Lords: winning, and claiming the prize of retrospective legislation that removes all possibility of punishment, accountability, and justice; and with its inevitably sloppy drafting, a further widening of these abused and abusive powers.

    This is not a counsel of despair – beware of that, for despair and helplessness are weapons against the citizen’s participation – but a call to caution. We are in the end phase of the game for democratic accountability, government by consent, and the rule of law. The pieces are already on the board for the next game; and one of them – pervasive surveillance – is already moving.

    Beware of what you wish for where the rules are not the rule of law, and when it’s all too serious to call a game.

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  • Anne Murphy says:

    If it is possible to demonstrate that the detention was for reasons which were not covered by Paragraph 2 (1) then the fact that it could have been for valid reasons is irrelevant. So the police need to be very careful about what they say at this point. They have already narrowed the scope for what they can claim in this regard by stating that Miranda was stopped because he was carrying highly sensitive stolen information which could be used to help terrorism.
    The problem is that this is an objective which is not to determine whether Miranda fell within section 40 but which is to deter the use that is made of the material which he is carrying. Yet merely retrieving that information will not do as an objective since the police have already admitted to the Guardian that they know that other copies exist.
    Hence the objective of detaining Miranda was not to establish whether he is involved in terrorism, but to affect the behaviour of other people who the police cannot get their hands on either because they are beyond the UK borders or because they are within them and protected by other legislation. And that is not a valid reason for detaining him under paragraph 2 (1).

    The paragraph 2(1) power is limited to a specified purpose, that of “determining” whether a person falls within section 40(1)(b) of the 2000 Act. Therefore, if that is not the purpose then the power to question is not being lawfully exercised.

  • Sheumais says:

    Firstly, that the legislation provides up to 9 hours to question someone is not debated. Whether or not it is unusual to detain someone for the full 9 hours is irrelevant, it is provided for. If the purpose of the questioning is to determine what, if any, threat someone poses to those terrorism legislation is designed to protect, then that will require the examination of what they have been doing. If, as it appears, Miranda knowingly carried something into the country he could not identify, is it unreasonable to wish to identify what he was carrying and why? If he was unable or unwilling to help, then the only information that could be gleaned would be from what he was carrying and that could take some considerable time to interpret or decrypt. I see no problem with the application of Schedule 7 as it is offered above, nor the examination of what he was carrying.

    It is worth noting the inconsistencies offered by the Guardian on the role of Miranda, claiming this was an attack on journalism and confirming Miranda was not a journalist. Why pay for his travel if he was not acting for them? If he was merely travelling as Greenwaldf’s companion, why was he reported to be carrying something he could not identify for someone connected to Guardian output? That is something he should have reported at check-in. Did he?

    Greenwald’s subsequent assured aggression is directed at whom exactly? Those acting for and on behalf of the state? Should we leave the definition of terrorism open to each individual case or can we not reasonably assume a threat to those acting for or on behalf of the state can be viewed as terrorism? I would rather this legislation was used in this way, to determine the validity of a suspicion, and if it takes 9 hours, it takes 9 hours.

  • Confused says:

    If the relevant definition of terrorism (for the purposes of s.40 of the Act) is that set out in s.1, then it seems to me that s.1(2) is quite broad enough to justify the police’s actions on this occasion – see, in particular, sub-section (2)(c) and following.

  • Pynch says:

    David, as you state a number of times, if the purpose of Miranda’s detention does not conform to the purpose of schedule 7 then it was clearly unlawful.

    However, I think Phil (above) has the right of it in stressing that Schedule 7 can be enacted on loose grounds, and used very broadly whilst ascertaining if a person falls under 40(1)(b). You can not prove a negative, particularly if there are no grounds required for suspicion.

    Points about prior knowledge seem the best avenue of consideration:

    - Can investigations prior to the enacting of Sched 7 undermine grounds for its use (for instance, could the security services have satisfied themselves that X is not a terrorist in advance – even if accidentally)?

    - If it is proven that real suspicions were over possession of materials in Clause 58, does this mean that detention is against the intent of schedule 7?

    Schedule 7 was clearly drafted with Northern Ireland very much in mind and therefore unlikely for the immediate detention and search powers to apply in instances such as this. The nature of this power is explicitly limited to determining if a person is a terrorist or not and does explicitly exclude Clause 58A (etc..).

    If it can be proven that the intent of government was actually to acquire materials for subsequent prosecution under Clause 58 / 58A would this make the detention unlawful?

    Or,

    Could the Government argue that possession of materials deemed unlawful under 58A (or indeed under Clause 58) can be seen as reasonable suspicion on a modern understanding of terrorism?

  • Purpleline says:

    The question(s) that no one has asked and would be first on my list is this one.

    1) Were any of the interviewing officer(s) American nationals

    Then
    2) At what time did the Net Police, security services contact the US to inform them of the catch

    3) What action / tip off / collusion did the German authorities have

    a) Did they have an officer on the plane to watch him

    4) Why have they not arrest Rusbridger for publishing secrets & closed down the London operation of the Guardian.

    • Phil says:

      They have closed down the London operation of the Guardian, in this respect at any rate. Alan Rusbridger:

      I asked directly whether the government would move to close down the Guardian’s reporting through a legal route – by going to court to force the surrender of the material on which we were working. The official confirmed that, in the absence of handover or destruction, this was indeed the government’s intention.

      And so one of the more bizarre moments in the Guardian’s long history occurred – with two GCHQ security experts overseeing the destruction of hard drives in the Guardian’s basement … Whitehall was satisfied, but it felt like a peculiarly pointless piece of symbolism that understood nothing about the digital age. We will continue to do patient, painstaking reporting on the Snowden documents, we just won’t do it in London.

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  • Colonel Mustard says:

    I find this distinction between “detention” and “arrest” preposterous. Miranda was deprived of his liberty and effectively arrested. Since the power of arrest has now been extended to virtually anything by “catch all” drafting and the abolition of the “arrestable offence” the Act that plays these semantic games is nonsense.

    Heed Nile’s comment above. This country is heading towards a bad place.

  • MaryJane says:

    I have been following this debate with some interest. I also read the letter Miranda’s solicitors sent to the police which makes the point that schedule 7 was originally designed with the IRA in mind and so refers to persons being detained travelling between the UK and Northern Ireland which was not the case here. Human Rights lawyer Gareth Pierce has made the point that the S.7 detention and questioning (which you cannot refuse to answer) has to be specifically aimed at determining if you are a terrorist and should be arrested. Once arrested of course you have a lot more rights. She said that there have been a number of cases where the underlying premise for the use of Schedule 7 has been tested and the judges have found it has to be used specifically for determining if someone is a terrorist, although the police do not have to provide grounds for thinking this. However that is what it has to be used for.

    Miranda has said this was not the line of questioning (was he a terrorist) used on him. This of itself would seem to make its use for his detention unlawful. Also the Home Office statement – that he was detained and questioned because he was believed to be carrying documents which might pose a threat to national security – would fall under s58 and 58a which are not covered by Schedule 7. The HO seems to be shifting the goal posts. Is anyone carrying any information the government regards as a threat to national security, now regarded as a potential terrorist. If this is the case, it will catch a lot of journalists in the net. ( I am not too worried about whether or not Miranda knew what he was carrying, let us say he was used as a courier by the Guardian and told he had Snowden information, encrypted, with him. Does that make him a terrorist?. Rushbridger says newspapers and journalists routinely have to transport information by courier these days, due to fear of electronic surveillance.)

    Making Rushbridger destroy his computer files physically is just plain daft and seems to amount to little more than bullying and intimidation. But then the whole thing has been mishandled from the start, if they wanted to see Snowden offered asylum by several different countries in SA, and ending up sheltered by Russia, they couldn’t have done a better job. Crashing about like this makes you wonder what Snowden has on the British government in particular.

  • A says:

    There’ll be a record of what questions were asked which may yet get aired I assume. It might indicate whether the 9 hours of questioning had the capability of making that determination.

  • Eamon says:

    Further questions that come to my mind:

    1) Why was Miranda transiting through Heathrow? Given the UK’s shared interest in PRISM it seems naive for Greenwald and the Guardian to send him into the UK when he is likely to be seen as having secret documents.

    2) How did Miranda get to Germany? Did he transit the UK on his way in or not? If he did not, that would suggest that Greenwald and the Guardian were concerened about interception prior to Miranda’s transactions in Germany.

    I could this be a publicity stunt?

  • Homo Economicus says:

    I find extremely troubling the number of comments here suggesting that reporting or assisting in the reporting of classified information as a journalistic exercise could be considered terrorism.

    • Pynch says:

      I agree that it is troubling. Unfortunately, I believe that the law is drafted sufficiently widely as to allow use in this way, within the Confines of the 2000 Act.

      Clause 40(1)(a) allows a person to be considered a terrorist if they are in possession of information noted under Clause 58 or 58a deemed to help terrorism.

      However, one might argue that prior knowledge of Miranda’s possession of information deemed illegal under Clause 58 should have led to his immediate arrest once such information had been verified – this puts him in the legal system and affords him greater legal rights.

      Challenge to the actual chain of events which took place seems best from a Human Rights angle.

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  • alibert says:

    I’d like to know more about the circumstances under which Miranda could be compelled to give up the passwords to his data. He said was ‘forced’ to, but clearly that wasn’t the case, he evidentally coughed them up when he was asked firmly (failing dismally in his courier role at the very first challenge).
    But could the police have forced him? What could have threatened him with – that day: arrest?

    • Andy J says:

      I suspect that quite early on in the interview, Mr Miranda was made aware of sections 49 to 51 of the Regulation of Investigatory Powers Act, a weighty piece of legislation also dating from 2000. These sections state that where any “protected information” (here meaning “any electronic data which, without the key to the data, cannot, or cannot readily, be accessed, or cannot, or cannot readily, be put into intelligible form”) has come into the possession of any person by means of the exercise of a statutory power to seize, detain, search [...] documents or other property, may, if he is authorised under Schedule 2 of RIPA, serve a notice requiring disclosure of the key on the person who it is believed holds that key (in this case Mr Miranda), and that person faces imprisonment for up to two years and/or a fine (on indictment) if he fails to provide the key.
      The notice must be given in writing and inter alia must specify the time by which the notice is to be complied with, and the time period so specified must be “reasonable in all the circumstances”. Arguably therefore since the officers knew that they could hold Mr Miranda for a maximum of 9 hours, a period of less than 9 hours would have been reasonable in this case, since Mr Miranda might be expected to leave the jurisdiction once released, thus making compliance less enforcible.
      Indeed it is conceivable that the main reason Mr Miranda was held for nearly the full 9 hours was so that a RIPA notice would become effective. It s true that the statement from Mr Miranda does not mention the serving of a notice, quite possibly because section 54 can require the person so served to keep secret the giving of the notice, its contents, and the things done pursuant of it.
      When discussing the powers included in Schedule 7 of the Terrorism Act 2000, it is necessary to also keep in mind all the other extensive legislation of a similar nature enacted around that time (especially from 2001 following the attack on the World Trade Centre) to gain a picture of the true extent of the powers which the State has given itself in the name of protecting the people. It is also noteworthy that oversight of all these powers is split between at least four individuals (the Interception of Communications Commissioner, the Surveillance Commissioner, the Intelligence Services Commissioner and the Independent Reviewer of Terrorism Legislation (David Anderson QC), not to mention Her Majesty’s Inspector of Constabulary) thus making true joined-up oversight very difficult. I’m sure that the Intelligence and Security Committee (ISC) would like to claim it performs this function, but they are arguably far too close to the government to be truly effective as a watchdog for civil liberties. As an example of this closeness, the entry of the Parliament website for the ISC links directly to the Cabinet Office website.

      • Alibert says:

        Andy J , that’s very interesting, and intriguing.
        Nevertheless , I would have expected Miranda to hold out further ,it is not as though he was being tortured, and the he had been able to tell the guardian where he was. It seems he didn’t even need to be arrested before he coughed, let alonee imprisoned.

      • alibert says:

        maybe section 7 was enough on its own to require him to divulge a password, without recourse to RIPA.
        http://www.bbc.co.uk/news/uk-23859830

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  • bruceb says:

    IANAL. There has been discussion elsewhere about compulsion to disclose passwords, etc. ISTR the law gets heavy if they ask and you don’t. Ways around have been proposed.

    Seperately, on the Grauniad website Lord Falconer’s opinion is that it was not legal to detain Mr. M.

    http://www.theguardian.com/world/2013/aug/21/david-miranda-law-detention-heathrow

    I assume he would know.

  • David Bernier says:

    What part of the body does a police officer use to make a determination? If it’s not the brain, then what else could it possibly be? —
    So clearly, determination is purely mental activity. The detainee, obviously, is not the one asking questions such as: “Constable, are you now in the process of determing whether or not I am a terrorist?”. No adversarial questioning is being done. On top of that, the judgement as to whether “determination of terrorist status” is being done is left to the police officer. As such, absent mind-reading, a claim by the police that a “determination of terrorist status” was actually happening is technically irrefutable and can only be taken on blind faith, and this applies to most people in the UK in search of the truth. Unless an arrest and court appearance follows the detention, I conclude respectfully that this allows a quasi-freepass at harassing questioning and detention.

  • Jeff W says:

    Mr Green:

    I’m curious about a few points:

    First, paragraph 2(1) doesn’t say the purpose for the questioning has to be for determining whether the person is a person falling within section 40(1)(b but rather for determining whether he appears to be a person falling that section. Presumably, the examining officers could have known fully that Mr Miranda wasn’t someone falling within section 40(1)(b)—as they undoubtedly did—but, as paragraph 2(1) is aimed at appearances, they could still question him to determine how he appeared to be. Having advance notice under that interpretation wouldn’t matter—no one could know how Mr Miranda would “appear to be” at the time of questioning, unless he were being questioned. (That might be a tortured reading of paragraph 2(1) but it’s consistent with what the paragraph says. It seems that the drafters of Schedule 7 were more concerned about matters of comportment rather than determining whether someone actually falls within section 40(1)(b).)

    Second, that paragraph 2(1) does not rely on the intent or knowledge of the examining officers but only the purpose of the “questioning.” Given that any questioning might elicit clues (in terms of inconsistencies, demeanor, and so on) that a person “appears to” fall within section 40(1)(b), it seems like the “purpose” of any questioning might be seen as falling within paragraph 2(1). Is that too elastic an interpretation?

    Finally, Anne Murphy says “If it is possible to demonstrate that the detention was for reasons which were not covered by Paragraph 2 (1) then the fact that it could have been for valid reasons is irrelevant.” Do the non-covered reasons vitiate the valid reason? Or does the presence of an arguably permissible reason render additional impermissible reasons irrelevant?

  • MaryJane says:

    A general consensus seems to be emerging that if de Miranda was not questioned about possible involvement in terrorist activities, then his detention was unlawful. As Greenwald has pointed out, if they wanted to find out what Miranda knew about what he was carrying, and confiscate it, this would not take 9 hours and there is other legislation which could be used.

    I think Gareth Pugh hit the nail on the head talking to democracy.now. when she pointed out using things like s58 and 58a,which appear to cover illegally obtained sensitive data, would be subject to further legal qualification about Miranda’s right. Only schedule 7 allows the sort of search and blanket questioning they carried out, with no legal safeguards for the detainee.

    My reading of events is they took a flier to get as much information from him as they could, without any constraints or legal protection for his rights, which is why they used Schedule 7 relying upon it being vague enough to construct some sort of post event justification. Like the type Theresa May has been using. Lord Falconer has pointed out that Schedule 7 was first set up to target IRA terrorists and retained in the 2000 Act specifically for use on suspected terrorists. It was never intended to be used on journalists or their couriers. It all that you cannot trust any government, or sadly the Met Police, not to use legislation contrary to its original purpose if it suits them.

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  • Tom says:

    I have no legal training, but the words “stolen property” or “stolen information” have been used a few times. The Theft Act 1968 covers “intangibles” such as information. Clearly, if information is in the public domain, it cannot be stolen. If the information is secret, obtaining it and using it for your own purpose seems to be covered by the 1968 Act. But this would only apply if the information is legitimately secret, that is, if it can be established that someone has a legitimate entitlement to it not being revealed. For each piece of information allegedly stolen from UK government or from any other party it must therefore first be established, on an item by item basis, who exactly owns it and whether it is lawfully non-public before it can be deemed to be stolen. The information revealed by Snowden so far suggests that the lawful secrecy of all of this information cannot be taken for granted and that the question of in which cases theft has actually taken place or not should not be pre-empted.

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