David Miranda Special Edition – The Human Rights Roundup

26 August 2013 by

TrollWelcome 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.

UKHRB posts 

1 comment;


  1. Why was’t the OfficlaI Secrets Act used? The 1989 Act does not appear to have repealed the 1920 Act, Section 7 of the 1920 Act was used in 1989 for the trial of Van Harleem, whose nationality was unknown as was the content he handled, even after he was arrested and subsequently charged. If I read Louise Mensch’s comments correctly, sufficient was found on David Miranda to clearly justify such a charge. http://www.computerweekly.com/blogs/when-it-meets-politics/2013/08/why-wasnt-the-official-secrets.html

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts http://ukhumanrightsblog.com/2011/04/11/us-state-department-reports-on-uk-human-rights/ Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: