The Accidental Terrorist

So, it's all over bar the shouting in the David Miranda judicial review, heard in front of Lord Justice Laws (whose name I don't think I will ever stop finding amusing.  Once when I was meant to be revising for the GDL I spent longer than I care to admit searching to see if I could find a case that had been heard by (the then) Mr. Justice Laws and Mr. Justice Judge. I succeeded. What does that say about me?), Mr. Justice Ouseley and Mr. Justice Openshaw.

Carl Gardiner did a tremendous job on Twitter and subsequently on his blog live-tweeting and analysing both days' proceedings in court.  As former Court of Appeal judge Sir Henry Brooke noted

.@carlgardner @CivilLitTweet  Informative tweets from two courts today have shown how valuable this new mode of media communication can be
— Henry Brooke (@HenryBrooke1) November 7, 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.

Journalism as Terrorism?

David Miranda's detention at Heathrow Airport in August kicked off a storm of commentary as to whether this was an unlawful use of the powers available under Schedule 7 of the Terrorism Act 2000.  We came a step closer today to a High Court decision as to whether it was or not, with a number of applications by Miranda's legal team being heard (and rejected), and a full hearing scheduled to go ahead next week.

At the time I was very strongly of the opinion that the use of Schedule 7 powers, which grant officers the power to question and search anyone at a port of entry to the United Kingdom without reasonable suspicion, to detain and search Miranda was unlawful.  The (limited) disclosure of documents obtained today by Miranda's has done nothing to dissuade me of that opinion.

(As a side note, it may be of interest to my American friends that the case of David House demonstrates that the Department of Homeland Security asserts the same right to search at the US border.  What is interesting is that while in the US the Customs and Border Patrol (CBP) simply asserted that they had the inherent right to seize and search electronic devices under the 'Fourth Amendment Border Exception'.  In the UK the British government had to resort to the use of anti-terrorism legislation to achieve the same effect.)