Miranda: Blame Parliament Before Blaming the Courts

In August 2013, David Miranda, partner of journalist Glenn Greenwald, was transiting through Heathrow, on his way from Germany to Brazil when he was detained and searched under the Terrorism Act 2000 (TACT), Schedule 7. By way of a judicial review claim he challenged the lawfulness of his stop and detention. After a 2 day hearing in November, the Divisional Court gave judgment on February 19. Mr. Miranda claimed that his detention was unlawful because the Schedule 7 powers had been used for an improper purpose (“the Purpose Issue”); that their use constituted a disproportionate interference with his right to freedom of expression (“the Proportionality Issue”) and that the Schedule 7 powers are incompatible with Article 10 of the European Convention on Human Rights which protects freedom of expression (“the Article 10 Issue”). The Court dismissed his application for judicial review.

In this post I confine my comments on the Miranda judgment largely to the Purpose Issue. Professor Waldron has also recently commented on this Issue: in his post, More Executive-Minded than the Executive, Professor Waldron comments (emphasis added),

“[Miranda] sought judicial review of his detention, and the authorities set up a justification under Schedule 7 of the Terrorism Act 2000. Schedule 7 entitles them to question anyone for the purpose of ascertaining whether he is “a person who … is or has been concerned in the commission, preparation or instigation of acts of  terrorism” as defined in section 40(1)(b) of the statute.

But patently that was not the purpose of his detention.  There was no question of Miranda’s being involved in terrorism—no question at all. The purpose of the detention and questioning related entirely to the Snowden material he was carrying.”

“The provisions of the Terrorism Act are very broad, but you would think the judiciary would nevertheless insist that the authorities act within the terms of the statute, rather than giving them carte blanche—which is what this decision amounts to.  The terrorism statute is actually not a blanket authorization for detaining any person pursuant to just any concern about national security.  It has its criteria and the Courts should uphold them. In refusing to look behind the reasons for the detention, these three English judges have failed shamefully to uphold even the vestiges of the Rule of Law that the Terrorism Act leaves standing.”

“Which brings us back to the basic point: the authorities had no justification under Schedule 7—no justification at all—since they were only pretending that their purpose for questioning Miranda was to ascertain whether he was a person involved in terrorism. And our three judges were completely happy to be complicit in that pretense.”

These are harsh comments and, in my opinion, they are unwarranted for the reasons I give below.

However, first: a little context. Back in September 2013, in my post, Why David Miranda’s Case Is Harder Than It Looks, I wrote,

“the question in his case is not so much whether it was lawful for him to have been detained under the Schedule 7 powers (i.e. absent a reasonable suspicion) but rather whether Schedule 7 powers were properly exercised in the first place (i.e. whether the rationale for detaining him falls within the scope of Schedule 7).”

I made this comment because:

  • Legally, there are two key issues raised by Mr. Miranda’s claim.
  • The first is the Purpose Issue: whether his stop was for a lawful purpose, i.e. for a purpose permitted by TACT. The question is: was he stopped “for the purpose of determining whether he appears to be a [person who is or has been concerned in the commission, preparation or instigation of acts of terrorism]” (Schedule 7, paragraph 2(1))? The Purpose Issue is particularly interesting in Mr. Miranda’s case because his stop related so directly to the information in his possession rather than anything else.
  • The second issue (which is part of the Article 10 Issue) is whether Schedule 7, paragraph 2(4) passes (legal) muster in the light of Gillan. Paragraph 2(4) expressly permits Schedule 7 powers to be exercised whether or not the examining officer “has grounds for suspecting that a person falls within Section 40(1)(b)”, i.e. reasonable suspicion is not a condition precedent for the exercise of Schedule 7 powers. In Gillan, the European Court of Human Rights declared statutory stop and search powers, which could be used in the absence of reasonable suspicion, to be contrary to Article 8, ECHR.
  • As I noted in my September post on this second issue: Schedule 7, paragraph 2(4) could be defended, notwithstanding Gillan, by reference to the Divisional Court’s (August 2013) judgment in Beghal in which the Court distinguished Schedule 7 from the statutory stop and search powers in Gillan and held that Schedule 7 did not violate Article 8, ECHR – and indeed, in Miranda, the Divisional Court upheld and applied Beghal in robust terms: see, e.g., §82. That was why I circled back to the Purpose Issue and the conclusion that it was the most engaging aspect of Mr. Miranda’s case.

In Miranda, the Court held in essence as follows on the Purpose Issue:

  • As a matter of fact (and based on the witness statements before the Court) the purpose of Mr. Miranda’s stop was “to ascertain the nature of the material which [he] was carrying and if on examination it proved to be as was feared, to neutralize the effects of its release (or further release) or dissemination” (§27).
  • As a matter of law (i.e. of statutory construction) the purpose of the Schedule 7 power is”

“to provide a reasonable but limited opportunity for the ascertainment of a possibility: the possibility that a traveler at a port may be involved (“concerned” – s.40(1)(b)), directly or indirectly, in any of a range of activities enumerated in s.1(2). If the possibility is established, the statute prescribes no particular consequence…. The fact that the outcome of a Schedule 7 examination is open-ended is I think of some importance. It supports the submission [for the Police Commissioner] that there is no principled distinction, for the purpose of a proper understanding of the power, between an interest in the person examined and an interest in what may be found in his possession. Specifically, as [the Home Secretary] submitted… the s.1 definition is “capable of covering the publication or  threatened publication [for the purpose of advancing a political, religious, racial or ideological cause] of stolen classified information which, if published, would reveal personal details of members of the armed forces or security or intelligence agencies, thereby endangering their lives, where that publication or threatened publication is designed to influence government policy on the activities of the security and intelligence agencies”: s.1(1)(b) and (c), and 2(c).” (§§32-33)

Thus, the Court concluded that the purpose of the stop in Mr. Miranda’s case fell properly within the scope of the Schedule 7 power.

Returning to Professor Waldron’s post, he states “There was no question of Miranda’s being involved in terrorism—no question at all. The purpose of the detention and questioning related entirely to the Snowden material he was carrying.” And, later: “the authorities had no justification under Schedule 7—no justification at all—since they were only pretending that their purpose for questioning Miranda was to ascertain whether he was a person involved in terrorism. And our three judges were completely happy to be complicit in that pretense.”

But these statements do not seem to take into account: (a) that the Defendants’ case was that their interest in the Snowden material sufficed to bring Mr. Miranda within the definition of “terrorist”; (b) that the Court expressly considered whether Schedule 7 extends to a person’s possessions as well as to the person himself; (c) did so by express reference to the definitions of “terrorism” and “terrorist” (i.e. in sections 1 and 40, TACT) and (d) concluded that the concerns regarding the Snowden material did indeed suffice to bring Mr. Miranda’s detention within the scope of the statute. Although Professor Waldron refers to TACT having “its criteria and the Courts should uphold them” he does not explain which criteria he is referring to. Nor does he advance any alternative statutory construction, i.e. to counter the one which the Court upheld. Absent such a plausible alternative statutory construction, it is harsh and unwarranted to describe the Court as having “failed shamefully to uphold even the vestiges of the Rule of Law that the Terrorism Act leaves standing” and as being complicit in the Defendants’ “pretense.”

Miranda might not be a welcome judgment for many reasons (e.g. its acceptance of Beghal). Essentially, however, it is a case about the interpretation and application of TACT – and it is that statute which is the real problem in this area. The case law it has spawned is simply symptomatic of its inherent deficiencies. Those cases may rightly attract criticism but that criticism should take account of the limited interpretative mechanisms available to judges in the face of permissive statutory language in the national security context. So, if harsh comments are to be made, the logical starting point is TACT and Parliament.

  

About the Author(s)

Shaheed Fatima Q.C.

Queen's Counsel Barrister practicing at Blackstone Chambers