David Miranda Special Edition – The Human Rights Roundup

26 August 2013 by Daniel Isenberg

Welcome back to the UK Human Rights Roundup, your regular airport departure board of human rights news and views. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here. Links compiled by Adam Wagner, post by Daniel Isenberg.

Picturing a dystopian world and totalitarian government, it is perhaps fitting that Aldous Huxley takes the title of Brave New World from lines uttered in The Tempest by the character named Miranda.  It is a different Miranda who dominates this week’s news, opening the debate on Schedule 7 of the Terrorism Act 2000.

In the News

Miranda & Schedule 7 – A Breakdown

It is August, which means both Parliament and the courts are shut. This meant that the one big news story this week was the detention at Heathrow by police officers of David Miranda, partner of Guardian journalist Glenn Greenwald, using powers contained within Schedule 7 of the Terrorism Act 2000.

To understand what has taken place; the authority for it; and events subsequent; a useful starting point is the analysis provided on David Allen Green’s Jack of Kent blog – particularly regarding the power to detain; the ability to coerce; but also the limits placed upon those powers.  See also the UK Constitutional Law Blog’s  superb ‘Guide for the Perplexed Citizen’.  Jeff King here makes clear that detentions made under Schedule 7 “must only be used for the purposes of determining whether someone is a terrorist or is helping one”, and suggests that Miranda’s activities are not likely to fall within any of the categories listed in the relevant Code of Practice, instead relating to the dissemination of classified information.  King does, however, point out that his analysis is based on certain factual assumptions, including that Miranda is: “someone assisting a journalist to publish leaked information about surveillance that is highly embarrassing for the government”.

Louise Mensch’s primer, by contrast, takes a very different starting point to the events of this week.  She points to the fact that Miranda was not merely Greenwald’s partner, but an active participant in his journalistic endeavours, and was supported by The Guardian.  She also adds that, contrary to earlier reporting, Mr Miranda had been offered a lawyer, but declined.  Her nit-picking with details mentioned or omitted by initial reporting is useful, but her greatest contribution to the debate is her suggestion that Mr Miranda’s activities do fall within the definition of ‘terrorism’ as provided by the Terrorism Act 2000.

The Lawfulness (or otherwise)

Taking up Mrs Mensch’s discussion, Carl Gardner on Head of Legal discusses whether, indeed, David Miranda could be a ‘terrorist’.  He points out that “the question of the legal purpose of the questioning is separate from the question whether he was suspected of terrorism or not” – the questioning must be for the purpose of determining whether Mr Miranda was involved in terrorism; but it does not require the examining officer to have grounds for suspicion [this point is further made by ObiterJ in his blog].  In Gardner’s view, turning to Mrs Mensch’s suggestion, calling for debate is not likely to constitute threatening the government under s. 1(1)(b) of the Act.   He does, however, point to the Independent Reviewer of Terrorism Legislation – David Anderson QC’s – warning about a broad definition in this very sphere of port and border controls.

For his part, David Anderson QC has launched an independent inquiry into the issue – his letter to the Home Secretary, which confirms he has already met with the Police, is here.

Meanwhile, the former Lord Chancellor, Lord Falconer was less equivocal in his view of what has taken place, telling The Guardian: “I am very clear that [the definition in the Act] does not apply, either on its terms or in its spirit, to Mr Miranda.”  Lord Falconer was involved in the law’s passage through Parliament, and criticised the Home Secretary’s ‘too wide’ view of powers under the 2000 Act.

Turning more generally to the powers contained within Schedule 7, StopWatch notes how this episode has recast the spotlight on “the UK’s widest-ranging stop and search power”.  It points to Schedule 7 of the Anti-Social Behaviour, Crime and Police Bill, which contains the government’s current plans to reform Schedule 7, which is making its way through Parliament.  StopWatch calls for an “intelligence-led” approach to stops at ports and borders, rather than its claims that “ethnic profiling” takes place.  It points both to the views of organisations such as the Equality and Human Rights Commission on the impact of Schedule 7 stops communities within the UK; as well as David Anderson QC’s call for a public review of the provision.

The Challenge & Hearing

The Guardian provides a copy of the initial letter sent by lawyers representing Mr Miranda to the Home Office, challenging their client’s detention under Schedule 7, and the retention of some of his property, including a computer, memory sticks and a hard drive.  Lexplain provides a fantastic analysis of this challenge, including focus on the submission that the police used the wrong legislation to detain Mr Miranda; and questions about whether the full nine hour duration was both necessary and proportionate.

The first hearing on this issue at the High Court focused on an interim injunction application sought by Mr Miranda to prevent the police from inspecting, copying, transferring, disclosing or interfering with the data it has seized.  The court did make such an order, but subject to the provisos that the material could be used for the purposes of protecting national security and for investigating whether Mr Miranda  is or has been concerned in the commission, preparation or instigation of acts of terrorism – deemed a “partial victory” by Miranda’s lawyers. The transcript of the judges’ decision can be found here: Miranda, R (on the application of) v Secretary of State for the Home Department & Anor [2013] EWHC 2609 (Admin)

On Carl Gardner’s view, “the order, then, denied David Miranda most of what he wanted, and gave the government everything it asked for”.  Seemingly the government have only lost the right to inspect the material “for criminal investigation purposes outside whatever’s necessary to determine whether David Miranda is concerned in “terrorism” within the meaning of the 2000 Act”.  Gardner clarifies his position, observing that a wide approach to the provision would allow the police to retain information, if they believe there is a chance it may be needed as evidence in future criminal proceedings.

Crucially, as Adam Wagner has noted on the UKHRB, don’t forget Miranda, who has opened up difficult questions about our terrorism laws, and a public debate set to continue.

Also in the News

• Germany becomes the first country in Europe to recognise an ‘undetermined sex’ when registering births.  “The change is being seen as the country’s first legal acknowledgment that it is possible for a human to be neither male nor female – which could have far-reaching consequences in many legal areas.”
• Bagehot counters the view that Britons are xenophobic by pointing out a thread of ‘xenophilia’.
• Oxford Human Rights Hub analysis of the US decision on stop-and-frisk in Floyd v City of New York.
• Colin Yeo questions legal privilege in an age of electronic surveillance.
• Carl Gardner wonders whether The Guardian has had to comply with an “official direction” under the Official Secrets Act…

Upcoming Events

To add events to this list, email Adam Wagner. Please only send events which (i) have their own webpage which can be linked to, and (ii) are relevant to topics covered by the blog.

• EVENT: Inner Temple Lecture Series – Master Mahoney -The Relationship between the Strasboug Court and the National Courts
  ECtHR Judge Paul Mahoney, Monday 7th October 2013, 6.30pm

• Human Rights Conference 2013: Lawyers as guardians of access to justice?

  30/10/2013 09:00 – 17:00; Venue: The Law Society, from £200
• What has the ECHR ever done for us? ‘Question Time’ Panel – Tuesday 1st October, 18:30-20:00, New Academic Building, LSE

UKHRB posts 

• They paved Plantagenet ‘n put up a parking lot – August 22, 2013 by David Hart QC
• David Miranda – Remember his name – August 20, 2013 by Adam Wagner
• High Court upholds autonomy over fatherhood for learning disabled man – August 20, 2013 by Rosalind English