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Why The UK Detention of Miranda Was Unlawful

Via Shayana Khadidal, this excellent post by Jack of Kent, who appears to be a British attorney, regarding the detention of David Miranda at Heathrow Airport The gist:

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. [Emphasis supplied.]

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”.

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?

Read the whole thing. It lays out clearly why the UK detention of Miranda was unlawful.

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  • Display: Sort:
    New Law: (5.00 / 1) (#4)
    by KeysDan on Tue Aug 20, 2013 at 11:01:15 PM EST
    Don't take British Air or any other airline that goes to, or connects through, Heathrow.   (unless you have  nine hours in your itinerary to spare and would like to spend time in the Tower of London, and not necessarily ogling the Crown jewels.)

    Unlawful... (5.00 / 1) (#5)
    by kdog on Wed Aug 21, 2013 at 07:38:39 AM EST
    and more importantly, dead wrong.

    Legal/Illegal has lost all usefulness as an arbiter of anything, centuries of lawmaking has made a joke of the rule of law, with the years since 9/11 being a regular punchline.  

    Besides, what difference does it make if British authorities broke the law when not everyone is held to the letter of the law.  Like a great Englishman once said...."some animals are more equal than others."

    Whats the fuss? (none / 0) (#9)
    by Abdul Abulbul Amir on Wed Aug 21, 2013 at 11:08:32 AM EST
    .

    Obama seems to win plaudits for picking and choosing which laws to faithfully execute, and which to ignore.  Its a bit hypocritical to knock the Brits for following the leader.

    .

    Parent

    Different rules different fools... (5.00 / 2) (#10)
    by kdog on Wed Aug 21, 2013 at 11:38:29 AM EST
    predates Obama by a couple thousand years bro.

    Parent
    On a related note (5.00 / 1) (#7)
    by Nemi on Wed Aug 21, 2013 at 09:36:02 AM EST
    In Der Spiegel Christopher Sultan shares his thoughts on the Britons' and their media's blind and uncritical trust in their secret service, including alledgedly not caring about what happened to/at The Guardian:

    The British Security Industry Authority (BSIA) recently estimated that there could be up to 5.9 million surveillance cameras in the country -- or one camera for every 11 Britons. Most were not installed by the government, but by companies and private citizens. One wonders who even has the time to look at these images.

    While there is the occasional burst of resistance on the island, most just accept surveillance as the price of freedom.

    [...]

    The spies expect preemptive subservience and discretion from the country's press, and they often get what they want. There is no other explanation for the matter-of-factness with which government officials and GCHQ employees contacted Guardian Editor-in-Chief Alan Rusbridger to demand the surrender or destruction of hard drives. What is surprising is the self-assurance that led the powerful to believe that none of this would ever come to light. According to the newspaper, after the hard drives had been destroyed in the Guardian's basement, an intelligence agent joked: "We can call off the black helicopters."



    I like cameras (none / 0) (#13)
    by Mikado Cat on Thu Aug 22, 2013 at 01:07:59 AM EST
    Good quality security cameras are cheap and there use is going to grow faster and faster because they are both good protection from illegal actions, and good protection when legal actions are claimed otherwise.

    I agree they can be misused, but see no great issue in controlling the misuse.

    I'm thinking about three in the car's, front, rear, and dedicated backup. Three or four for the home, front, rear, front door, parking area on the street.

    When a friend of mine wanted to set up a video arcade the police requirement included interior and exterior cameras and minimum quality of recording equipment prior to a business license, more than $10k at the time.

    Parent

    Shayna got that from me! (5.00 / 1) (#12)
    by bmaz on Wed Aug 21, 2013 at 01:18:51 PM EST
    And Jack of Kent is David Alan Green, and is both a solicitor and a fairly prolific writer in the UK.

    From the schedule: (none / 0) (#1)
    by oculus on Tue Aug 20, 2013 at 06:54:46 PM EST
    1 Terrorism: interpretation.

    (1)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 [F1or an international governmental organisation]F1 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 [F2, racial]F2 or ideological cause.
    (2)Action falls within this subsection if it--
    (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.
    (3)The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.
    (4)In this section--
    (a)"action" includes action outside the United Kingdom,
    (b)a reference to any person or to property is a reference to any person, or to property, wherever situated,
    (c)a reference to the public includes a reference to the public of a country other than the United Kingdom, and
    (d)"the government" means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.
    (5)In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.



    I think my grandma is a terrorist. (none / 0) (#2)
    by Visteo1 on Tue Aug 20, 2013 at 07:41:26 PM EST
    Thx Oculus.  No lawyer here, but the vagueness of that definition gives me the feeling anyone could be deemed a terrorist.

    Paragraph 2(4) goes on to provide that an examining officer may exercise the power  whether or not he or she has grounds for suspecting that a person falls within section 40(1)(b).  This means that there does not actually need to be a reasonable suspicion.  However, paragraph 2(4) does not negate the requirement that the power be exercised for the purpose specified.

    I think that means, if they stay within the proper scope of questions...they can mess with you for 9 hours without breaking any laws...terrorist or not.

    Yup. As we say in tech world, (none / 0) (#11)
    by ruffian on Wed Aug 21, 2013 at 12:59:22 PM EST
    It's not a bug, it's a feature.

    Parent
    Was this done as an attempt (none / 0) (#3)
    by Edger on Tue Aug 20, 2013 at 07:54:26 PM EST
    to demonstrate that regardless of the law they will do whatever they want to do as long as they can, and to demonstrate that the only real law is "might is right" as long as no has power to do anything about it?

    I just want to say one word to you. Just one word. (5.00 / 1) (#6)
    by Mr Natural on Wed Aug 21, 2013 at 09:35:06 AM EST
    Benjamin: "Yes, Sir?"

    Mr. McGuire: "Power."

    Parent

    Sometimes spelled (none / 0) (#8)
    by Edger on Wed Aug 21, 2013 at 10:24:19 AM EST
    "Bastille"?

    Parent
    SITE VIOLATOR (none / 0) (#15)
    by CaptHowdy on Tue Dec 02, 2014 at 10:59:16 AM EST