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.
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.]