Could David Miranda be a “terrorist”?

August 20 2013

There’s understandably been a great deal of reaction to the nine-hour detention at Heathrow airport of David Miranda, who was travelling as part of his work with Guardian journalists covering Edward Snowden’s disclosures, and whose laptop and memory stick were seized as a result of his detention and questioning under paragraphs 2 and 6 of Schedule 7 to the Terrorism Act 2000.

Paragraph 2(1) of Schedule 7 says 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)

and section 40(1) provides that a

“terrorist” means a person who …

(b) is or has been concerned in the commission, preparation or instigation of acts of terrorism.

So there’s no doubt: the purpose of Schedule 7 is clear. I fully agree with David Allen Green that the questioning and detention of David Miranda was unlawful unless carried out for the purpose of determining whether he appeared to be concerned in “terrorism” within the meaning of the Act.

To be clear, this question of the legal purpose of the questioning is separate from the question whether he was suspected of terrorism or not. Paragraph 2(4) makes clear that

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 a police officer can question and detain someone under Schedule 7 even without any reason to suspect him or her of being a terrorist. Nonetheless, the questioning must be for the purpose of determining whether or not he appears to be one.

If the questioning here was in truth for an ulterior purpose – say, to get hold of and investigate for other purposes documents Miranda was carrying, perhaps circumventing the need either to arrest him in order to do so, or else to apply to a judge to search the Guardian’s offices for “journalistic material” under the Police and Criminal Evidence Act 1984 – then it was unlawful.

I’m by no means a “civil liberties” campaigner. I’ve not been alarmed by the Guardian’s revelations about GCHQ: I think it’s important that it has legal power to find and monitor terror suspects, and have yet to read anything that makes me think it’s acted unlawfully or without proper Parliamentary scrutiny. I think the police may well need powers like Schedule 7. But I also think it’s right that the detention of a journalist in these circumstances causes concern, and I’m pleased the independent reviewer of terrorism legislation, David Anderson QC, has asked to be briefed about it.

The Metropolitan Police have defended their actions as “legally and procedurally sound”, and a Home Office spokesman has apparently said

If the police believe that an individual is in possession of highly sensitive stolen information that would help terrorism, then they should act and the law provides them with a framework to do that.

I’ll be interested to see if they can successfully defend the detention in court, assuming Miranda’s legal challenge goes ahead. I wouldn’t much fancy defending this judicial review myself, I have to say. There must be quite a few anxious discussions going on tonight about how to respond to today’s letter from Bindmans solicitors between government lawyers at the Home Office, Treasury Solicitor’s Department and the Attorney General’s Office, probably involving Treasury Counsel James Eadie QC or Jonathan Swift QC.

A particularly important and interesting question is (regardless of whether they had grounds to suspect him, which as I’ve said is separate, and legally irrelevant) whether the police or intelligence services could seriously wonder whether David Miranda might actually be, or rather appear to be, concerned in “terrorism”. By this I’m not asking rhetorically whether they might think he planned to make explosives or intentionally help Al Qaeda or the Real IRA. What I mean is, might he have appeared to be a “terrorist” within the meaning of the Terrorism Act 2000, because of his connection to the Guardian?

This isn’t as silly a question as it first appears. Indeed, the former MP Louise Mensch has suggested as much in a tweet to David Allen Green (@JackofKent):

[tweet_embed id=369796081003278337]

The definition of “terrorism” is in Section 1:

(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 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.

(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.

“Terrorism”, then, is anything that fulfils one of the conditions in section 1(2), and both conditions 1(1)(b) and 1(1)(c).

The police might well think publishing the content of sensitive intelligence-related documents could “create a serious risk to the safety of the public”, and so satisfy the section 1(2)(d) condition. Edward Snowden’s revelations, whatever you think of them, certainly raise political issues, and arguably the Guardian’s reporting of them has been in a sense “campaigning” as well as investigative. So perhaps the Guardian’s use of the documents could be said to advance a political cause – the “civil liberties agenda” if you like, or the cause of wanting closer scrutiny of the intelligence services. That might satisfy the section 1(1)(c) condition.

It seems to me more difficult to see any use of the documents by the Guardian as “designed to influence the government” as required by section 1(1)(b); the Guardian’s actual purpose is to inform the public and sell newspapers. Calling for a debate isn’t the same thing as trying to blackmail the government, or even to lobby it. So it’s a stretch to argue that the Guardian wants to influence the government. But a paranoid police or intelligence officer might think so. And after all, in a democracy publicly raising serious political questions in some ways overlaps with trying to influence the government, at least between elections.

If that’s right, then it’s possible to argue that David Miranda may, by acting as a go-between carrying documents to journalists (if that’s what he did), have been involved in the preparation of an act of “terrorism”; and therefore to argue that he may indeed have appeared to be concerned in “terrorism” within the meaning of the legislation, although certainly not a terrorist giving that word its plain meaning.

The wide meaning of terrorism under the 2000 is not a newly-discovered issue: David Anderson QC has warned about it in each of his annual reports on the operation of terrorism legislation. In his report on the use of the legislation in 2010, for instance, he wrote at paragraph 3.6:

A broad definition of terrorism may serve also as a temptation to use other powers (including port and border controls) for purposes other than that for which they are intended.

The reference to port and border controls being, of course, a reference to Schedule 7.

Amendments to Schedule 7 are already being debated by Parliament in the Anti-social Behaviour, Crime and Policing Bill. The proposed changes involve, for instance, reducing the maximum period of questioning, from the nine hours endured by David Miranda down to six hours. But the opportunity is there for Parliament to change Schedule 7 however it wants.

I don’t oppose the existence of the Schedule 7 powers: I think they can be used reasonably to combat genuine terrorism. I don’t have a problem, either, with the idea that police and intelligence officers should have powers to search for and seize documents whose publication could breach the Official Secrets Act 1989, for instance. Indeed if their current powers under official secrets legislation are inadequate, I wouldn’t be opposed to their being given new ones.

But where unusual powers are conferred on the police and intelligence services, it should be reasonably clear how those powers will be used. The law should speak plainly. Technically, an Act of Parliament can define any term however Parliament wants it to; once legislation has set out in detail a range of conduct it wants to do something about, it can use any word as a convenient label to encompass and describe that conduct. But there are dangers in distorting the meaning of words, and a wise Parliamentary counsel and wise ministers will not bend statutory language too far.

So whether or not the questioning and detention of David Miranda is held to have been unlawful, Parliament should now look again at the definition of terrorism in the 2000 Act, at least as it applies in the context of Schedule 7 and to the work of journalists. I worry about how long public confidence can be maintained in the existence of Schedule 7 if it’s used to fight things labelled “terrorism” that are nothing like what you and I mean by the word.

Tom Robinson: there’s one law for the rich, and another one for the poor

tomrobinsonThere were a number of musical interludes at the Rally for Legal Aid yesterday, including this song written especially for the occasion by Tom Robinson.

A few of the lines might be uncomfortable hearing for some lawyers: “soliciting”, the narrator’s father thought, was “enforcing for the bourgeoisie”, and the “whore” Justice’s “chummy smug monopolies are screaming for reform”. But this is a terrific protest song.

2013-08-01T13:49:38+00:00Tags: , |

Josie Long: I can’t believe A.C. Grayling is doing this

josielong“I’m just some idiot really,” she began. But the comedian Josie Long explained that she wanted to speak in support of legal aid because “this is something that affects everybody in this country”. It’s difficult, she said, “to live in a society where the government seems committed to creating and exacerbating social inequality”.

On behalf of those who are “feckless and work in the arts” she thanked “all of the people here who work so tirelessly” to fight for justice.

She also told the rally how much she admires Cait Reilly.

2013-07-31T17:54:24+00:00Tags: , |

Shauneen Lambe: defend the children of the poor

shauneenlambeThe Executive Director of Just for Kids Law Shauneen Lambe told the Rally for Legal Aid yesterday that she’s “scared to live in a country where something we hold as so fundamental is being eroded by the government, and no one can see that they’re taking away the fundamental rights of the citizens”.

She asked her audience to look up and across to read the words inscribed on the Old Bailey:

Defend the children of the poor & punish the wrongdoer.

Today the government, she said, are the wrongdoers.

2013-07-31T17:31:35+00:00Tags: , |

“Sally”: legal aid meant my daughter could get some form of justice

womenagainstrapeOne of the speakers at yesterday’s Rally for Legal Aid was “Sally” – the mother of a rape victim, as the flyer for the rally described her. For understandable personal (and legal) reasons Sally asked not to be photographed or recorded. But after the rally she kindly agreed to let me have the text of her speech. Here’s what Sally said outside the Old Bailey yesterday.

In 2005, my fifteen year old daughter woke me up at 3am and told me that she had been raped.

Her attacker was 29 years old.

We waited twelve weeks for an arrest to be made.

My daughter went on with the case because she knew that the police and prosecution had evidence that proved the defendant was lying.

What she didn’t know was that before the trial the police had lost this evidence. And that the trial was doomed to fail her.

The police failures were called “a disgrace” by the trial judge.

And so my daughter’s rapist went un-convicted and was free to rape another young girl.

As for us; we wanted answers. We didn’t understand how this could have happened. We thought she was safe in their hands.

But what could I do?

I was, and am, an ordinary woman. My husband drove a taxi. I looked after my children. We had enough money to live on. But not money to pay for lawyers to fight cases over laws I knew nothing about.

We managed, with the help of Women Against Rape, to find a legal aid lawyer who specialised in actions against the police.

There are not many who do this specialist work, and if these cuts come in there will be fewer.

Over 6 years we did a number of cases to show what happened to my daughter was not just wrong, but illegal. We got officers disciplined for misconduct, we got an apology from the DPP. We brought a claim to show that the police have a legal duty to properly investigate rape.

We also did a risky judicial review – something that these cuts would prevent happening – which resulted in a High Court judge saying that it was likely that had the mistakes not been made by the police, my daughter’s rapist would probably have been convicted.

In some ways, that acknowledgment by the judge in the judicial review was the most important one, as it vindicated what we had been saying all along.

We had a really strong legal team who were not going to give up, no matter what the police threw at us. And they threw a lot at us.

But if it hadn’t been for legal aid, I wouldn’t have been able to fight at all.

Much of the legal work done was new territory and there was no way of knowing if we would win.

Legal aid meant my daughter could get some form of justice and acknowledgement for the pain and suffering she has had to endure.

It has shown her that she can stand up to anyone if they let her down, even the state.

This case wasn’t for my daughter really, nothing was going to change the fact that her rapist walked free.

But she did it for all the victims of rape who will come after her.

That’s really why I am standing here today. Because it is people like me and my daughter that the changes in legal aid will really hurt.

Legal aid means that ordinary people like my daughter have a voice. If these changes come in, it will silence this voice.

Please don’t let this happen. We should celebrate what legal aid does for us and fight to protect it.

This isn’t about lawyers, it’s about ordinary people like my daughter.

2013-07-31T13:12:38+00:00Tags: , |

Raphael Rowe: news coverage of legal aid “a travesty”

raphaelrowe

The BBC Panorama reporter Raphael Rowe told yesterday’s Rally for Legal Aid that the BBC and other news organisations are “not doing anything to look at the legal aid system”, and that that’s “a travesty”. “They should be doing more”, he said.

Earlier, he’d explained that he owes a lot to the legal aid system. He mentioned in particular the importance to him, when he was a prisoner, of choosing his lawyer, Jim Nichol (who by the way has been in South Africa this year working on the Marikana inquiry, representing the families of those killed). Rowe made it clear that it was legal aid that enabled him to challenge the UK in the European Court of Human Rights, and that eventually led to the quashing of his 1990 murder conviction.

If, he said, he’d “had to rely on the system that is being proposed today, I don’t think I would be on this platform”.

2013-07-31T11:58:35+00:00Tags: , |

Sadiq Khan: we probably have the most legally illiterate Lord Chancellor in the history of our country

sadiqkhan

Labour’s Shadow Lord Chancellor Sadiq Khan MP relished attacking Chris Grayling in his “Rally for Legal Aid” speech outside the Old Bailey yesterday. Grayling, he said, was a man with no idea of our history who believes “if you are charged with a criminal offence, you are a criminal”, that if a judge finds against the government “you need to move the goalposts, and change the rules of judicial review”, and that all lawyers are “fat cats, chasing ambulances”.

I was interested though that Khan picked out only two aspects of the government’s legal aid proposals for specific criticism – which may give us some indication of how policy might be different if Sadiq Khan heads the Ministry of Justice in two years’ time. He focused on the idea of criminal defendants being “too thick to pick” – so clearly he’s in favour of retaining a client’s choice of his or her legal aid solicitor; and he referred to a number of cases like those of Jimmy Mubenga, Jean-Charles de Menezes and the Gurkhas in which legal aid has enabled foreigners to challenge state action.

He did also specifically mention judicial review – but it wasn’t obvious to me that he was signalling definite opposition to the government’s proposals on legal aid for judicial review, rather than its changes to the judicial review procedures themselves.

2013-07-31T03:04:20+00:00Tags: , |

Shami Chakrabarti: the place where I grew up

shamichakrabarti

Here’s Shami Chakrabarti’s speech at yesterday’s “Rally for Legal Aid” outside the Old Bailey. Hers was the best speech of the day, I thought, telling her listeners about a country “not so very far from this one” where if you needed medical or legal help “nobody would once have looked for your handbag or wallet”.

Interestingly, she made clear she thought the issue of legal aid cuts is not just about the current government. She said the Labour opposition also needs to be held to account on this, and we need to know what they’ll do if they come to power.

2013-07-31T02:21:22+00:00Tags: , |

Alan Turing: the stain should not be erased

alanturing

The government has said it will support Lord Sharkey’s bill aimed at giving a posthumous statutory pardon to Alan Turing for an offence under section 11 of the Criminal Law Amendment Act 1885. Here’s a transcript of Friday’s second reading debate in the House of Lords. And here’s the bill.

I need say nothing about Turing’s achievements and greatness, which are beyond dispute. He was treated with disgraceful cruelty and ingratitude by this country, and in particular by its law and criminal justice system, when he was convicted and sentenced for that offence, after which he took his own life. But I’m opposed to this bill and this pardon.

Clause 1 does all the work, and reads as follows:

(1) Alan Mathison Turing, who was born on 23 June 1912 and died on 8 June 1954, and who was convicted of offences under section 11 of the Criminal Law Amendment Act 1885 (gross indecency between men) at the Quarter Sessions at Knutsford in Cheshire on 31 March 1952, is to be taken to be pardoned for those offences.

(2) This Act does not affect any conviction or sentence or give rise to any right, entitlement or liability, and does not affect the prerogative of mercy.

Clause 1(2) is worth noticing. It may surprise some, but the pardon does not affect any conviction – not even Turing’s. So his conviction will not be quashed or disregarded.

There’s nothing unusual about this. The more usual type of pardon until recently, a “free” or “full” pardon given by the Queen under the prerogative of mercy, on the advice of ministers, does not amount to the quashing of a conviction.  As was originally explained by Lord Justice Watkins in R v Foster in 1985, and cited by him in the Court of Appeal ruling in 1993 in R v Home Secretary ex parte Bentley,

The effect of a free pardon is such as, in the words of the pardon itself, to remove from the subject of the pardon, all pains, penalties and punishments whatsoever that from the same conviction may ensue, but not to eliminate the conviction itself.

The bills aims merely to replicate by statute the effect of a prerogative full pardon: to grant Alan Turing mercy for the offence he committed. It does so because of the government’s refusal so far to advise a prerogative pardon, which is reserved for miscarriage of justice cases – the person in question must be “morally and technically innocent” of their offence in order to qualify. And it’s clearly modelled on section 359 of the Armed Forces Act 2006, which granted a statutory pardon for servicemen executed for various offences during the first world war.

There was a good reason why the Armed Forces Act pardon was a statutory one: that meant it wasn’t necessary for individual cases to be considered on their merits, which might not have been possible so long after the event. And a principled decision to pardon an entire class of people was arguably more like lawmaking than granting individual mercy, so it was right that it was debated openly in Parliament. It may, though, have signalled the beginning of a gradual move away from use of the prerogative of mercy towards an expectation that pardons be given by statute.

But once Parliament decides it should act, there’s no reason for it to feel bound by the limitations of prerogative powers. Parliament is sovereign. If MPs and peers want, by Act of Parliament, to disregard Alan Turing’s conviction, they can do so. So why don’t they?

They’ve done something similar for those convicted of similar offences who are still living, in sections 92 to 101 of the Protection of Freedoms Act 2012, which allows them to apply to the government to have a conviction disregarded. I don’t say this approach would work for Alan Turing (or anyone else now dead who was convicted of a similar offence). The main practical effects of disregard for those living is that their criminal records are altered retrospectively, and they have no need to disclose the disregarded conviction in future.

Nonetheless, section 96 of the 2012 Act provides that a person whose application for disregard succeeds is to be treated for all purposes in law as if they not committed the offence or been charged with it, or prosecuted, convicted or sentenced for it. So I wonder why peers and the government don’t want the same for Alan Turing. Parliament can, if it likes, retrospectively repeal the legislation under which he was convicted, and make everything done under it a legal nullity (if need be making clear that no legal action can now be taken against anyone for anything they did under it).

Of course that would be an attempt to rewrite the past, something that can’t really be done, even by Parliament. One thing is sure: whatever apology is made (Gordon Brown apologised for what happened to Turing in 2009) and whatever law may be passed, nothing can be changed for Alan Turing. That, indeed, is the cruel truth about this sad story, and one which we have to face: the law’s treatment of Alan Turing cannot be undone. I agree with Ben Summerskill that the pardon is pointless.

Peers and the government just want to do something symbolic. But who benefits from the symbolism? Not Alan Turing. This pardon, well-intentioned though it undoubtedly is, is not only pointless but self-indulgent. It would make only us only feel that we’re relieved of the burden of the past.

The distinguished astrophysicist Lord Rees said in the Lords last week (19 July 2013, column 1011), supporting the bill,

Turing’s own reputation is assured but, as British citizens, surely we should do all that we can to erase the stain on the reputation of our own criminal justice system.

He’s right in more than one way, but wrong in his conclusion. History and social change has undone any damage to Turing’s reputation done by our law in the 1950s. The stain is not on him but, as Lord Rees says, on the law, on our system of justice, and on those who made it what it was – including not just the police and judges but Parliament itself.

So what does it mean to try to erase that stain? It never can be erased, and never should be.

2013-07-22T19:04:21+00:00Tags: , , , |

The Irish abortion bill

Last night the Dáil Éireann, the lower house of the Irish Parliament, passed the Protection of Life During Pregnancy Bill. Here’s the text, which must now be considered by the Seanad. If voted through there, it will come into law if and when it’s signed by the President.

The bill clearly results from the death of Savita Halappanavar, but also aims at giving effect to the judgment of the European Court of Human Rights in A, B and C v Ireland, in which the Grand Chamber concluded that C’s right to respect for private life was breached (see paragraph 267 of the judgment)

by reason of the absence of any implementing legislative or regulatory regime providing an accessible and effective procedure by which the third applicant could have established whether she qualified for a lawful abortion in Ireland …

It seems to me that the bill provides a reasonably accessible procedure, and so on its face complies with A, B and C. We’ll have to see whether it’s effective in practice.

Clauses 7, 8 and 9 are key. They lay down circumstances in which it will be lawful to carry out a medical procedure resulting in which an unborn human life is ended.

Abortion will be lawful by an obstetrician under clause 7 where two doctors (one of them an obstetrician) certify that only that procedure can avert a real and substantial risk to the woman’s life from a physical illness. Clause 8 covers emergency situations, providing that abortion by a doctor is lawful where he or she certifies that there’s an immediate risk to the woman’s life from a physical illness, and abortion is immediately necessary to save the woman. Clause 9 covers the risk of suicide: it will be lawful for an obstetrician to carry out an abortion if three doctors – an obstetrician and two psychiatrists – certify that only an abortion will avert the risk of suicide.

Clauses 10-15 establish a system of reviews of doctors’ decisions – effectively giving a woman the right to appeal if a certificate is denied under clause 7 or 9.

Clause 17 provides for conscientious objection, making it clear no health professional is obliged to take part in an abortion. What’s less clear is whether a doctor or nurse can properly refuse to take part in the certification process – that doesn’t seem to me to be covered by clause 17.

Clause 22 creates the offence of intentionally destroying unborn human life. Anyone who does so can be sent to prison for up to 14 years – but they can only be prosecuted with the consent of the DPP.

2013-07-12T16:35:49+00:00Tags: , |
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