Law and Rights
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.
- Fighting Abroad ~ Is It Against The Law?
Imagine that in some foreign land there is a political power struggle. Those opposing the de facto (or de jure) government seek help by violent means and individuals decide to provide such help. Could this be an act of terrorism in our law? ...
- R V Gul - Uk Supreme Court - Observations
'Terrorism' has proved very difficult to define and there is no internationally agreed definition. For the purposes of law in the United Kingdom, the Terrorism Act 2000 section 1 gives the following definition: (1) In this Act ?terrorism?...
- Miranda 6 ~ Hearing Of 30th August
The David Miranda case returned to the High Court on Thursday 30th August. Barrister Carl Gardner covers the hearing on his Head of Legal blog - R (Miranda) v Home Secretary: today's hearing and varied consent order. At the hearing, Matthew...
- Miranda 4 ~ Legal Action ~ Updated 21st August
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:...
- Detention Without Charge
Within England and Wales, the detention for questioning by the Police of arrested suspects is subject to certain time limits and these are set out in the Police and Criminal Evidence Act 1984 - PACE. The powers of "Police Constables" to arrest without...
Law and Rights
Detention of David Miranda - is this a disturbing use of State power?
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:
My reports on #Schedule7 terror stops: https://t.co/qmcsW7Bdp9 (2013) https://t.co/mEgsgT5jEO (2012) and https://t.co/TzVWtSmwpg (2010)
? David Anderson (@terrorwatchdog) August 18, 2013
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.
- Fighting Abroad ~ Is It Against The Law?
Imagine that in some foreign land there is a political power struggle. Those opposing the de facto (or de jure) government seek help by violent means and individuals decide to provide such help. Could this be an act of terrorism in our law? ...
- R V Gul - Uk Supreme Court - Observations
'Terrorism' has proved very difficult to define and there is no internationally agreed definition. For the purposes of law in the United Kingdom, the Terrorism Act 2000 section 1 gives the following definition: (1) In this Act ?terrorism?...
- Miranda 6 ~ Hearing Of 30th August
The David Miranda case returned to the High Court on Thursday 30th August. Barrister Carl Gardner covers the hearing on his Head of Legal blog - R (Miranda) v Home Secretary: today's hearing and varied consent order. At the hearing, Matthew...
- Miranda 4 ~ Legal Action ~ Updated 21st August
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:...
- Detention Without Charge
Within England and Wales, the detention for questioning by the Police of arrested suspects is subject to certain time limits and these are set out in the Police and Criminal Evidence Act 1984 - PACE. The powers of "Police Constables" to arrest without...