Saturday, 9 November 2013

Unlawful Questioning of David Miranda

A judgment was handed down on Wednesday that raises further questions about the legality of some aspects of David Miranda's detention at Heathrow in August.  I have been mulling the contents of the David Miranda judicial review hearing, and should have a blog post on it soon, but in the interim I want to look at the potential bearing that this judgment, Elosta v Commissioner of the Met, has on the facts of Miranda's case as we (I) know them.

Essentially, it affirms the right of someone being detained under Schedule 7 of the Terrorism Act 2000 to consult a solicitor before being interviewed, face-to-face and in private.  None of these are particularly controversial (and the Met Commissioner conceded and apologized for the fact that Mr. Elosta was not given privacy to talk to his solicitor over the phone), but this is Schedule 7 we are talking about here, and this is also the Met.  It was the Met's position that someone being detained under Schedule 7 at a place other than a police station did not have the right to consult a solicitor, and if they did they were only to do so under conditions dictated by the police.  To be fair to them, this is what a straight reading of the legislation could imply, but one that was sensibly rejected by Mr. Justice Bean.

Looking again at the details of the Miranda detention, and reading it along with the judgment in Elosta, it seems to me that much of the questioning of Miranda was probably unlawful.

According to the letter before action from Bindmans, Miranda was served with Form TACT2, notifying him of his detention at 0825.

0825: Miranda is informed he is being detained under Schedule 7 TACT 2000, and served with Form TACT2, which states among the other required information (emphasis in original):
Do you want someone informed? 
You may, if you wish, at public expense, have a friend, a relative or a person who is known to you, or is likely to take an interest in your welfare, informed that you are being detained here.
NB. Under paragraph 8 of Schedule 8 to the Terrorism Act 2000, or paragraph 16 of Schedule 8 in Scotland, an officer of at least the rank of Superintendent may delay this right.
Do you want to contact a solicitor?
You may consult either in person, in writing or on the telephone, privately with a solicitor. If you do not wish to do so now, you may do so later and at any time while you are detained.
NB. Under paragraph 8 of Schedule 8 to the Terrorism Act 2000, or paragraph 16 of Schedule 8 in Scotland, an officer of at least the rank of Superintendent may delay this right.

At some point around this time: Miranda is offered contact with a duty solicitor, which he declined and requested to see his own solicitor.  Miranda declined, he says, because he did not trust the authorities 

That leaves a delay of over two hours between (presumably) when Miranda requested that Greenwald be informed and when he did eventually receive a phone call.  Did a Superintendent authorize a delay and if so on what grounds was his reasonable belief that one of the consequences below would occur?:

(4)Those consequences are—

(a)interference with or harm to evidence of a serious offence ,

(b)interference with or physical injury to any person,

(c)the alerting of persons who are suspected of having committed a serious offence but who have not been arrested for it,

(d)the hindering of the recovery of property obtained as a result of a serious offence or in respect of which a forfeiture order could be made under section 23 or 23A,

(e)interference with the gathering of information about the commission, preparation or instigation of acts of terrorism,

(f)the alerting of a person and thereby making it more difficult to prevent an act of terrorism, and

(g)the alerting of a person and thereby making it more difficult to secure a person’s apprehension, prosecution or conviction in connection with the commission, preparation or instigation of an act of terrorism.
Or, as it appears, did the police simply drag their feet, failing in their duty to act as soon as is reasonably practicable in order to delay Miranda's access to his own solicitor (which presumably Greenwald was going to, and did, arrange)?

1030: Glenn Greenwald gets a phone call informing him of Miranda's detention, and claims he is told by officer 203654 that DM is not allowed to have a lawyer present.  I think it is safe to assume that as soon as this call ended Greenwald was on the phone to The Guardian and their legal department trying to arrange a solicitor for DM

1100-ish: The Guardian contact Kate Goold, an Associate in Bindmans crime team who arranges for Gavin Kendall to represent DM.  Let's suppose it takes an hour to get in touch with Mr. Kendall.

1525: Gavin Kendall arrives at Heathrow Terminal 5.  Let's say it took him an hour to get there on a Saturday afternoon.  Bindmans state that Mr. Kendall proceeded to Heathrow because of the failure of multiple efforts made by him to make contact with DM by telephone "as he was given no telephone access to our client."

GK phones a sergeant who tells him someone would be sent to collect him.

1545: Officer 203654 collects GK and brings him through security.

1605: GK is finally given access to David Miranda, approximately seven and a half hours after DM requested to see his own solicitor.

 As a detainee under Schedule 7 Mr Elosta had the right to consult a solicitor before being interviewed.
(Elosta judgment, para. 34)
However, after DM declined the services of the duty solicitor, the police had probably fulfilled their duty towards DM with regard to consulting a lawyer until such time as Miranda's own solicitor made himself known to them, in fulfillment of Miranda's request that he consult with his own solicitor.  We can guess this probably took place by 2:25 at the latest, and probably a couple of hours earlier.

Further, this does not take into account the police failure to inform Greenwald of Miranda's detention as soon as reasonably practicable (as I suspect, in order to further delay his access to his own solicitor).

Bean J further concluded in Elosa,
The form tells the detainee that he may consult a solicitor privately “in person, in writing or on the telephone”. This means what it says. The detainee has the choice. The right may be exercised at any time during the period of detention and may be exercised repeatedly, although not in a manner which frustrates the proper purpose of the examination. If the solicitor attends in person he may be present during the interview, since that is what the House of Lords in Begley held to be the effect of the identical wording of section 58 of PACE. A reasonable delay to await the arrival of a solicitor may be required, but the detainee is not entitled to exercise that right in such a way as to frustrate the proper purpose of the examination.
(Elosta judgment, para. 45) 

Gavin Kendell had the telephone number of a sergeant at Heathrow who was able to dispatch to meet him the same officer who telephoned Glenn Greenwald at 1030, indicating the sergeant was someone who was involved in the detention of David Miranda.  We can assume this was also the contact point via which Kendall had also previously been attempting to get into contact with Miranda.  The police failure to put Kendall in telephone contact with David Miranda appears to make his questioning after this point and until Kendall was given access to him unlawful, not to mention the apparent deliberate tardiness in contacting Greenwald, which I suspect was for the purpose of slowing such access down further.

Now, of course, it could be argued that before Elosta the law in all this was unclear, and there is a certain truth in that.  However, the fact that the officers offered Miranda access to a duty solicitor indicates that they understood he did have the right to contact a solicitor, and not (as was put forward in Elosta itself) that detainees at an airport had no such right.

The fact that Kendall was ultimately given access to Miranda (less than an hour before he had to be released from detention under Schedule 7), also indicates that the officers understood that he had the right to contact his own solicitor, and not just the duty solicitor.  This makes their refusal to permit Kendall to speak with him on the phone even more dubious.

Miranda's lawyers would almost certainly fail the "promptness" test of a judicial review application on this aspect of his detention, but it certainly appears to me on this basis that a substantial chunk of Miranda's questioning, though not his detention, was unlawful.

Moreover, this does not speak to me of a police investigation that was confident in the legality of its conduct.

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