The story of David Miranda will doubtless run and run, bringing together the hot topic of government surveillance programmes with the simmering unease over the increasingly extensive use of anti-terrorism powers in the UK. But already debates sparked by Miranda’s detention are getting messy, not helped by the making of some crisp – but distracting – legal distinctions. The story, in short, involves the detention of David Miranda, the Brazilian partner of Guardian journalist Glenn Greenwald, under Schedule 7 of the Terrorism Act, which gives broad powers to the security services to detain persons travelling to the UK at the border for a period of up to 9 hours. The length of Miranda’s detention was somewhat unusual, and it would seem his electronic devices were also confiscated – but so far so legal.
What is more dubious is the questioning Miranda was subjected to. The Act explicitly states that:
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)
Section 40(1)(b) covering someone who:
is or has been concerned in the commission, preparation or instigation of acts of terrorism.
As pointed out, It seems unlikely that an interrogation focussing on Miranda’s partner, Glenn Greenwald, the Guardian investigations and the Snowden leaks, would meet an acceptable reading of this section, and depriving a person of their liberty for the purposes of gathering general intelligence is not looked upon kindly by the European Court.
But aside from the questioning, was it wrong to stop Miranda in the first place? Rather surprisingly the Act (Schedule 7 – 2(4)) allows for selection for detention under Schedule 7, even when there is no reasonable suspicion that the detainee falls under section 40(1)(b) – i.e. is suspected of involvement in the instigation, preparation or commission of acts of terrorism.
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)
So they can do what they like? Not quite.
The Home Office provide a Code of Conduct which stresses that the powers must be used “proportionately”, “reasonably” and “with respect”, amongst other things. Ultimately, the way in which people are selected for stops must be “informed”, taking into account the threat posed by terrorist groups, including assessing patterns of travel and the documentation which terrorists might use, for example.
No doubt this may lead to legitimate searches of every 20th or 50th or 100th person coming off a plane, or everyone carrying a particular type of passport, or a variety of other reasons. But clearly Miranda was not stopped under one of these “ordinary” uses of the power. He did not get unlucky, was not carrying suspect documents, travelling to or from anywhere suspicious etc. Rather, Miranda as an individual was likely put on a watch-list, and personally marked as a target before his flight for Heathrow had even left the tarmac.
So we have to ask, under what circumstances would the security services be justified in selecting Miranda by name under Schedule 7? Looking through the Code of Practice only one seems remotely feasible- the actual knowledge or suspicion that Miranda has been in some way connected with acts of terrorism or the supporters or sponsors of those who are.
In short, what’s important to recognise about Schedule 7 is that direct suspicion of some relation to terrorism seems to be a sufficient, but not necessary pre-requisite for selection; the post-Miranda debate over the Schedule needs to keep this particular distinction crystal clear. On the one hand, there will no doubt be a renewed debate over the breadth of the powers in the section, and the appropriateness of selecting people for questioning without suspecting them of terrorism related activity under 40(1)(b) as currently allowed under the Act. Should it be necessary to have actual suspicion to stop individuals?
But the detention of Miranda raises a totally separate issue. Picked out by name, and seemingly not falling into any other relevant category in the Code of Practice, his selection for questioning must have been one of those few cases where Schedule 7 is employed based on a more direct suspicion of involvement with terrorism to comply with the Act. To justify his detention, the security services must therefore not only demonstrate the propriety of his interrogation and lengthy detention, but also that his association with Greenwald and Poitras, and/or what they knew about the data he was carrying marked him out as a person potentially falling under 40(1)(b) of the Act – this being the reason for his initial selection for questioning.
We haven’t been told why Miranda was stopped – we may not need to be. After whittling away all other options, the circumstances of his selection for detention can only be explained by a suspicion he was somehow implicated in terrorism. Taking that line gives the people who detained Miranda far less room to wriggle.