Miranda case shows we need more secrecy laws… or does it?

26 August 2013 by

David MirandaAs the August news lull continues, the David Miranda controversy is still troubling commentators – see Daniel Isenberg’s superb roundup. In the past week or so, an interesting symmetry has arisen between those defending and criticising the Police’s actions.

The Police’s critics say the detention was probably unlawful, but even if it was lawful it shouldn’t have been as, if this non-terrorism case can fit within existing anti-terror law, then terrorism powers are too wide. This more or less fits with my view, although I am not sure yet about the lawfulness of the detention. A reverse argument is made by the Police’s defenders: the detention was probably lawful, but if if it wasn’t then it should have been, as we need to be able to prevent these kind of dangerous intelligence leaks from occurring. See e.g. Matthew Parris and to an extent Louise Mensch.

Into the second category steps Lord Ian Blair, former Metropolitan Police Commissioner. He has told the BBC that the threat from international terrorism was “constantly changing” and there was a need to “review the law”:

“Most of the legislation about state secrets is in the Official Secrets Act and it only concerns an official. I think there is going to have to be a look at what happens when somebody possesses material which is secret without having authority.”

The problem with Lord Blair’s comments is that they appear to be based on a misunderstanding of the Official Secrets Act 1989. Whilst he is correct that some of the Act focusses on disclosures by Crown servants, sections 5 and 6 are specifically aimed at preventing damaging disclosures of secrets by non-officials.

Section 5 concerns information resulting from unauthorised disclosures or entrusted in confidence. It creates a criminal offence for individuals, who don’t need to be officials, who make a damaging disclosure having obtained any “information, document or other article protected against disclosure by the foregoing provisions of this Act“, that is those which have been entrusted to Crown servants.

Section 6 concerns information entrusted in confidence to other States or international organisations. It creates a criminal offence when any person makes a damaging disclosure of “any information, document or other article” which “relates to security or intelligence, defence or international relations” which has been communicated in confidence by or on behalf of the UK to another State or to an international organisation.

Doesn’t section 6 sound rather relevant to David Miranda’s case? And if Miranda’s case fits squarely within section 6, which on the current facts it would appear to, why do we need any new powers? And, for that matter, why did the Police need to use anti-terrorism laws to detain and question him if he was potentially committing an offence under the OSA? All interesting questions which will hopefully be resolved by the courts in due course.

Of course, there may still be a case for reform of the Official Secrets Act , given that it was drafted before the internet became widespread. But any reform would inevitably impact on civil liberties and must therefore be carefully thought through. More fundamentally, in making the case , legislators such as Lord Blair must be careful to get the facts right.

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  1. Maybe Miranda was a decoy?> We already have ample legislation as this article points out; viz; O.S.A art; 5 & 6. No more excuses in erosion of civil liberties in the name of ‘the war on terror’. Enough already, too much already. No to more devolved C.L’s and H.R.’s.

  2. anon says:

    What does “disclosure” mean in the context of the OSA?

  3. Angry Grandparent says:

    It strikes me that what is under the almost hysterical actions by government, is the desire not to protect secrets but to protect criminal actions from being discovered.

    You see this quite clearly when we read these exposures, do we ever see that there is ongoing legal correction underway? That people have been arrested, convicted and punished? Many of the court cases resulting from Iraq and Afghanistan have not been through a conscientious government ensuring that the law is applied but through almost superhuman efforts by people to force these cases into the courts in the first place.

    And so we lack the trust for the government to be an honest broker, we lack the trust too that the government will prosecute its “secret” wrongdoers or prosecute those because of political reasons and/or reasons of corruption and vested interest. Secretive organisations such as the Freemasons also enable this state of affairs and protect, become the conduit of protection and cronyism.

    Secret crimes are still crimes regardless of their action in the UK or overseas, we need to recapture the moral high ground here, promote a zero tolerance attitude to protecting criminal actions and force public oversight with regular reporting to House and the people to ensure that secret crimes do not go unpunished and maybe then we might gain some trust back for the law and governance.

    1. Found your comment perceptive but sad. The UK has a long history of cover-ups The 90’s saga of ‘arms to Iraq’ dispelled the fiction that Governments Act in the best interests of the Country and the people. Following this we witness shocking cover-up after cover-up and to mainitain this blanket ban on truth ‘they’ have to illegally spy on peoples communications and steal journalistic material.

  4. busybeebuzz says:

    Words spoke (at different points) by the Nexus 6 Replicant Roy Batty in Blade Runner come to mind:
    “Roy: Chew, if only you could see what I’ve seen with your eyes. Questions.”
    “Roy: I’ve seen things you people wouldn’t believe. Attack ships on fire off the shoulder of Orion. I watched C-beams glitter in the darkness at Tannhäuser Gate. All those moments will be lost in time like tears in rain. Time to die.”

  5. SlingTrebuchet says:

    It might be that the Terrorism Act was used as it was simply a convenient ‘paperless’ way of detaining Miranda or anyone else and taking whatever he was carrying for examination/copying. No justification for the detention is required.
    It should have been expected that any sensitive material being carried would be strongly encrypted. The stop and search would have been a speculative fishing expedition.

    Official Secrets Act 1989 Section 6 might have been more appropriate to the circumstances but would presumably entail some tedious formalities.

    Use of the Terrorism Act in the circumstances might be an indication of arrogance.
    Shortcut’s ‘R Us sort of thing.

  6. The logic in the calls for new laws seems somewhat faulty. If potentially damaging material is being leaked, surely it is better that this is reported on. A newspaper report may cause embarrassment, but the alternative would seem to be not knowing about security leaks until they are exploited for destructive purposes.

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