Monday 19 August 2013

Detention of David Miranda - is this a disturbing use of State power?

BBC 19th August - David Miranda detention: MP asks for explanation and see Cameron proves Greenwald right.

A new week opens with a disturbing story about the use of Schedule 7 of the Terrorism Act.  The Guardian - Glenn Greenwald: detaining my partner was a failed attempt at intimidation - tells the story of how David Miranda was detained for 9 hours at Heathrow Airport without access to either a lawyer or others.   This post takes a brief look at the Schedule 7 power to question.

It is as well to begin with the Terrorism Act 2000 s.1 where the word 'terrorism' is defined for the purposes of law in the UK.   In this Act “terrorism” means the use or threat of action where -

(a) the action falls within subsection (2),

(b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and

(c) the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause.



Actions within subsection 2 are those where the action - (a) involves serious violence against a person, (b) involves serious damage to property, (c) endangers a person’s life, other than that of the person committing the action, (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.

The word 'action' includes action outside the UK and the word 'government' extends to the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.

Terrorism Act 2000 s.40  is where the term 'Terrorist' is defined and, under s40(1)(b), it means a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism.

Schedule 7 is headed Port and Border Controls.  This gives an 'examining officer' power to question a person for the purpose of determining whether he appears to be a person falling within s40(1)(b).  The officer may exercise his powers whether or not he has grounds for suspecting that a person falls within s40(1)(b).  The person may be detained for questioning for up to 9 hours from the time his examination begins.  Schedule 8 applies to such detention.  The use of Schedule 7 may or may not result in the arrest of the person - section 41.

Hence, on its face, the authorities are empowered to detain and question a person for 9 hours regardless of whether they have any suspicion relating to that person.  The questioning has to be aimed at determining whether the person is or has been concerned in the commission, preparation or instigation of acts of terrorism.

Why was Mr Miranda questioned?  Glenn Greenwald's article offers a possible clue:

'David had spent the last week in Berlin, where he stayed with Laura Poitras, the US filmmaker who has worked with me extensively on the National Security Agency stories. A Brazilian citizen, he was returning to our home in Rio de Janeiro this morning on British Airways, flying first to London and then on to Rio. When he arrived in London this morning, he was detained.'

The activities of the National Security Agency (USA) and its British counterpart GCHQ have been in the news extensively in recent weeks -Watching the Law - International Big Brother.  This prompted Foreign Secretary William Hague to assert in the House of Commons that British security services had acted within the law - Statement of 10th June.    On 17th July, Parliament's Intelligence and Security Committee (ISC) said that it was satisfied that UK security services did not break the law by accessing personal data through the US Prism programme - STATEMENT of Sir Malcolm Rifkind (the ISC's Chairman).

The extent of governmental surveillance activities over citizens is a matter of enormous public concern and investigative journalists are keen to raise awareness of any such surveillance programmes.  It would be shameful if the Schedule 7 power were being used as a method of intimidation of either journalists or those connected to journalists such as members of their families.  Greenwald stated:

If the UK and US governments believe that tactics like this are going to deter or intimidate us in any way from continuing to report aggressively on what these documents reveal, they are beyond deluded. If anything, it will have only the opposite effect: to embolden us even further. Beyond that, every time the US and UK governments show their true character to the world - when they prevent the Bolivian President's plane from flying safely home, when they threaten journalists with prosecution, when they engage in behavior like what they did today - all they do is helpfully underscore why it's so dangerous to allow them to exercise vast, unchecked spying power in the dark.

Schedule 7 has been the subject of reports by the Independent Reviewer of Terrorism Legislation:


Schedule 7 is the subject of a challenge before the European Court of Human Rights - (here).  In May 2013, the court declared the case admissible - see the admissibility judgment Sabure Malik v UK.

Joshua Rozenberg - David Miranda Detention: Schedule 7 of the Terrorism Act explained 

Jack of Kent - Nine hours in the life of David Miranda

Note:  Schedule 7 of the anti-social behaviour, crime and policing bill, which has completed its committee stage in the House of Commons, would cut the maximum period to six hours and introduce other safeguards.

6 comments:

  1. As you pointed out, there is clearly a problem with the direction of the questioning. ie no effort was made to determine whether Miranda fell within 40(1)(b). But surely there is also an issue with his being stopped in the first place? Sched. 7 allows for this absent any direct suspicion - but this is still subject to rules on arbitrariness. Picking one individual out of a crowd by name can surely only be legitimately done if there is direct suspicion he falls under 40(1)(b)?

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    1. There is a Code of Practice for Examining Officers. This should be adhered to. Essentially, it is clear that the Schedule 7 power must be used in connection with s.40(1)(b) only. The decision to examine someone has to be based on grounds such as those set out in the Code. Please see my post Miranda 2 which looks at this in more detail.

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    2. There is a Code of Practice for Examining Officers. This should be adhered to. Essentially, it is clear that the Schedule 7 power must be used in connection with s.40(1)(b) only. The decision to examine someone has to be based on grounds such as those set out in the Code. Please see my post Miranda 2 which looks at this in more detail.

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    3. Many thanks for the reply and your post on the Code. This was my take specifically on the part reading "When deciding whether to exercise their powers, examining officers should base their decisions on a number of considerations including ... individuals or groups whose current or past involvement in acts or threats of terrorism is known or suspected". http://commonslaw.wordpress.com/.

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  2. Like Anonymous at 19:48, I think that there are questions about the applicability of s40(1) here and the applicability of Schedule 7. The purpose of Schedule 7 is to determine if s40(1) applies. If the purpose was not to look for evidence of any specified offences, then could the detention have been for an unlawful purpose that renders the decision to detain unlawful?

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    1. Yes - Schedule 7 must be used in connection with s40(1)(b). Please note it may not be used in connection with 40(1)(a). We don't know the government / Police side of this story so not possible to properly assess whether the examination was unlawful. In any event that's a decision for a court and not a blog!! IF the authorities used this power for some reason not covered by section 40(1)(b) then the detention would have been unlawful. Any powers must be used for their specified purpose: Padfield v Minister of Agriculture is the authority for that.

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