Why The UK Detention of Miranda Was Unlawful

[kpete]

TUE AUG 20, 2013 AT 04:04 PM PDT
Why The UK Detention of Miranda Was Unlawful
byArmandoFollow

Via Shayana Khadidal, this excellent post by Jack of Kent, who appears to be a British attorney, regarding the detention at Heathrow airport of David Miranda. The gist:
http://jackofkent.com/2013/08/nine-hours-in-the-life-of-david-miranda/

What section 40(1)(b) says:

So schedule 7 provides a limited power to question and a limited power to detain.

Both the powers to question and to detain are conditional on the purpose of whether a person falls within section 40(1)(b) of the 2000 Act.

So the next question is fundamental – what does section 40(1)(b) say?

Section 40(1)(b) is a definition clause, and it provides the following definition of “terrorist”:

a person who…is or has been concerned in the commission, preparation or instigation of acts of terrorism.

Section 40(1)(b) thereby is a limiting definition – the questioning (and any period of detention) under schedule 7 is for seeing if a person falls within this definition. Accordingly, any questioning (and any period of detention) which is not for this specified purpose is outside the scope of the provision.

Jack of Kent continues with regard to the search and confiscation of Miranda's property:

This limit is also significant as we look at the power of search and examine: paragraph 9 limits the power to examine property to determine whether the person falls within section 40(1)(b). It is not a general power of search.

However, once property has been taken, then paragraph 11(2) provides it can be retained:

(a) the purpose of examination, for a period not exceeding seven days beginning with the day on which the detention commences, (or)
(b) while [the officer] believes that it may be needed for use as evidence in criminal proceedings .........

So, once the property has been taken from the detained person it can be kept for evidence in criminal proceedings, regardless of whether the detained person is within the category of “terrorist”.

http://jackofkent.com/2013/08/nine-hours-in-the-life-of-david-miranda/

Thus while the search was illegal, the UK can, under this law, keep the confiscated material if "it may be needed for use as evidence in criminal proceedings." But Miranda was not arrested. So what criminal proceedings?

****************

and this:
http://jackofkent.com/2013/08/nine-hours-in-the-life-of-david-miranda/

What the American have said

It is reported that the American government had advance notice of the detention.
If this is the case, then this appears to open a serious question (*Add for clarity - in this particular case) – if the officers knew in advance that Miranda was to be detained, they knew who he was. He was not some random passenger.

Accordingly, if they knew who he was, then it would seem – to me – that (*Add for clarity - in this particular case) they would not therefore need to question and detain him to see if he fulfilled the section 40(1)(b) definition. They knew full well whether he did, or if he did not. The questioning would be artificial.

In other words, by flagging the American government with an advance notice of the detention (Add for clarity - in this particular case), it would seem to me that (*this) detention could not have been genuinely for the purpose of determining if Miranda fell within section 40(1).

MUCH MORE:
http://jackofkent.com/2013/08/nine-hours-in-the-life-of-david-miranda/
via:
http://www.dailykos.com/story/2013/08/20/1232643/-Why-The-UK-Detention-of-Miranda-Was-Unlawful



and keep in mind:
One U.S. security official told Reuters that one of the main purposes of the British government's detention and questioning of Miranda was to send a message to recipients of Snowden's materials, including the Guardian, that the British government was serious about trying to shut down the leaks.
http://ca.news.yahoo.com/britain-forced-guardian-destroy-copy-snowden-material-222933670.html

[idwiyo]

1. K&R

[muriel_volestrangler]

2. Good piece - JackOfKent is usually good on English law

His analysis is largely shared by the man who helped take the 2000 bill through the Lords, and later became Lord Chancellor (ie the top non-judicial legal office in the country):

David Miranda's detention had no basis in law, says former lord chancellor

...
Falconer said: "What schedule 7 allows an examining officer to do is to question somebody in order to determine whether he is somebody who is preparing, instigating or commissioning terrorism. Plainly Mr Miranda is not such a person."

The second paragraph of schedule 7 of the act says: "An examining officer may question a person to whom this paragraph applies for the purpose of determining whether he appears to be a person falling within section 40(1)(b)." This refers to paragraph 40 earlier in the act which defines a terrorist at (b) as a person who "is or has been concerned in the commission, preparation or instigation of acts of terrorism".

Falconer said that the provision in schedule 7, which allows the police to stop an individual even if there are no grounds for suspicion, is not designed for the likes of Miranda. He said: "What that provision is intended to allow is random searches where you've got a group of people, maybe everybody who is coming in from Northern Ireland on that ferry, where what you are going to do is search people. But there the examining officer, although he does not have grounds for suspecting any individual, has a perfectly good basis for doing random searches. Or he might think it is sensible to examine every third person because it is relevant or this is a way of getting to the truth.

"But that section plainly doesn't apply here. What is happening is they are targeting Miranda because they believe that he may have information that has been obtained from [the US whistleblower Edward] Snowden. The reason that doesn't fall within schedule 7 is because: even assuming that they think there is material which has been obtained in breach of the Officials Secrets Act, the action of Miranda or anybody he is acting with could not be described as somebody concerned in the commission, preparation or instigation of acts of terrorism. You could not reasonably believe, if you were the state, that Miranda is commissioning or assisting somebody to commission terrorism, to prepare terrorism or to instigate terrorism."

http://www.theguardian.com/world/2013/aug/21/david-miranda-law-detention-heathrow

[joshcryer]

4. The law is worded in such a way that the officer can't make that judgement.

The officer must question the person before the officer is able to consider whether the person should be further scrutinized or not.

2 (1) An examining officer may question a person to whom this paragraph applies for the purpose of determining whether he appears to be a person falling within section 40(1)(b).

...

(4) An examining officer may exercise his powers under this paragraph whether or not he has grounds for suspecting that a person falls within section 40(1)(b).

[muriel_volestrangler]

5. It's about judging whether the person appears to be a terrorist

And the length and nature of their questioning do not indicate that's what they were doing. Also, as JackOfKent points out, the fact that they had decided in advance to stop Miranda (British and American governments knew about this before he was stopped, and they checked everyone's passports as they exited the plane to get Miranda the moment he was out (perhaps to lessen the chances he made a phone call to anyone before the interrogation - that's my speculation)) also shows they did not have any doubt about his identity, background or trip. It's absurd to claim they were trying to determine if he is a terrorist.

[joshcryer]

6. I'm not saying they were.

I'm saying the scope of the law allows them to do what they did with impunity.

It doesn't say "reasonable suspicion." It says, "may exercise his powers under this paragraph whether or not he has grounds for suspecting."

It's not an anti-terror law, it's an harassing and intimidation law.

[joshcryer]

3. That's just the definition. Schedule 7 permits detention.

To determining whether or not a person meets the definition. Yes, they literally say that they can stop anyone at a border or port and ask them if they are a terrorist. If you don't comply you're screwed.

I wrote a post here: http://www.democraticunderground.com/10023494914

You'll note that I also included the definition in my post, because I knew it would be referenced.