Updated post - with more information about the legal action being taken by Mr Miranda
Matrix Chambers have announced that they have been instructed to act for David Miranda in a legal action - Matrix Chambers news. The brief announcement states:
Matthew Ryder QC and Edward Craven have been instructed by Kate Goold and Gwendolen Morgan of Bindmans
to act for David Miranda in relation to his recent detention under
Schedule 7 of the Terrorism Act 2000. David Miranda was held at London’s
Heathrow airport for nine hours on Sunday morning while passing
through Heathrow on a stopover. David Miranda is the partner of Glenn
Greenwald, the Guardian journalist who interviewed Edward Snowdon, the
former US spy agency contractor who has been granted asylum by Russia.
Specific details about the legal grounds on
which the actual action is being based remain to be seen* but this will certainly be a case to watch! Journalists the world over will most definitely be watching. The action might be some form of challenge (based on the European Convention on Human Rights) to the legislation itself. Alternatively, the action might be based on alleged improper application of Schedule 7 to Mr Miranda at the time in question. An action in court will probably bring into play the 'Closed Material Procedures' in Part 2 of the Justice and Security Act 2013. If that happens, the public may well be denied knowledge of all the facts.
* An update to this will appear as and when details of the legal action become clearer. 21st August - please see below for update.
Note: Schedule 7 is already 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. Malik submits that the use of the Schedule 7 powers in his case violated his
rights under Articles 5 § 1 and 8 of the Convention.
On 20th August, a Letter before Action (LBA) was sent from solicitors to the Home Office and the Metropolitan Police. The letter is in accordance with Civil Procedure Rules Part 54 and the Pre-action Protocol for Judicial Review. Mr Miranda intends to challenge, by way of judicial review, his detention under Schedule 7 and also the taking and retention of his property including journalistic materials.
Mr Miranda has also sought undertakings that, pending the determination of his case, there is no inspection or copying etc. of his material. The solicitors have also requested return of the equipment taken from Mr Miranda within 7 days from the time they were taken from him. (On this see paragraph 11 of Schedule 7).
It is argued that the decisions to detain Miranda and question him (subject to a criminal sanction) and also to seize his property were wholly unlawful. It is said that the decision to detain Miranda was unlawful because it amounted to use of the legislation for an improper purpose and the decision was a disproportionate interference with rights under Articles 5, 6, 8 and 10 of the European Convention on Human Rights. It is further argued that the powers under Schedule 7 are incompatible with those Articles. In particular, the use of Schedule 7 in relation to journalistic material raises questions going beyond other cases in which Schedule 7 is under challenge.
Miranda alleges that, in the absence of some other explanation, it seems clear that the official decision to detain, question and search him was based on the government's wish to obtain access to confidential journalistic material in his possession. This would be using legislation for an improper purpose which would be unlawful at common law under the principle set out in Padfield v Minister of Agriculture  AC 997.
Also, the use of the Terrorism Act as a way of obtaining journalistic should not be permissible since it would enable either the protections in the Police and Criminal Evidence Act 1984 or the Terrorism Act 2000 Schedule 5 to be bypassed.
The solicitors will also be seeking disclosure from the authorities of many matters such as precisely why Schedule 7 was used against Miranda; whether Ministers were involved or consulted; whether any information obtained has been passed on to foreign States etc.
Detention of David Miranda - is this a misuse of State power?
Miranda 2 - The Code of Practice
Miranda 3 -Amendments to the law are already coming
Eurorights: David Miranda: Access to a lawyer
UK Human Rights blog - David Miranda - remember his name - here Adam Wagner wrote - 'Was he detained unlawfully? I am not sure. His solicitor’s pre-action letter sets out a fairly convincing case. But there are two potential holes in the reasoning, in my view.'
Head of Legal Blog - Could David Miranda be a terrorist - Carl Gardner argues - 'So whether or not the questioning and detention of David Miranda is held to have been unlawful, Parliament should now look again at the definition of terrorism in the 2000 Act, at least as it applies in the context of Schedule 7 and to the work of journalists. I worry about how long public confidence can be maintained in the existence of Schedule 7 if it’s used to fight things labelled “terrorism” that are nothing like what you and I mean by the word.'
The Guardian 21st August - David Miranda's detention has no basis in law, says former Lord Chancellor - (view of Lord Falconer QC) and Smashing of Guardian hard drives over Snowden story 'sinister', says Amnesty
Despite the headline, Falconer was a little more guarded. He is reported to have said - 'So my view – and I am very clear about this – is that schedule 7 does
not cover what happened subject to one thing: if the government has got
reason to believe that Greenwald or Miranda were engaged in something I
know nothing about then obviously it might cover it – but from what has
been said the basis of the stopping was a connection with the Snowden
activities.' Falconer was critical of May who, along with David Cameron, was given advance notice of the police decision to detain Miranda. Despite such advance notice, Theresa May has maintained that the actual decision to detain Miranda rested with the Police.
BBC 21st August - No 10 contacted Guradian over Eric Snowden secrets - here we are told that, when the revelations about the American National Security Agency were published, the Cabinet Secretary was told to contact the Guardian. Subsequently, staff from GCHQ oversaw the destruction of computer files containing information from NSA which had been leaked by Snowden. However, The Guardian had copies which were held abroad. The Head of Legal blog considers whether The Guardian acted under a direction made under the Official Secrets Acts.
New York Times - 2 page article - British newspaper Has Advantages in Battle with Government over Secrets - allegations here of British government interference with the activities of a free press. In the USA, the press enjoys greater constitutional protection.