Update: Since I published this blog at 220am on Monday, the story has changed. It has been reported that Mr. Miranda was stopped by the British Government on their decision. Here is how the BBC has reported the story in particular the question of whether the stop was made at the request of the United States Government.
“There was a heads up that was provided by the British government, so this was something we had an indication was likely to occur.
“But it is not something that we requested and it was something that was done specifically by the British law enforcement officials there.”
The news above changes the context of my blog in that it appeared, after initial reports, to be unintentional. The new reports suggest that the British government intended to stop Mr. Miranda for their reasons.
Yesterday, like thousands of times before, the Her Majesty’s government stopped someone under the schedule 7 powers of the Terrorism Act of 2000. Usually we never hear about the person and it only makes the news if a court case follows from being stopped or detained. In 2012/13 (the most recent statistics) show that 61,145 people were stopped. Of those stopped, only 670 (less than 0.1%) were detained. The rest were free to go.
2009/10 2010/11 2011/12 2012/13 People Examined 87,218 73,909 69,109 61,145 Examined >1 hour 2,695 2,291 2,254 2,277 Detained 486 915 681 670 Biometrics Not available 769 592 547
Taken from p.102 of Anderson QC Independent Review of Terrorism Acts 2012/13 https://terrorismlegislationreviewer.independent.gov.uk/wp-content/uploads/2013/07/Report-on-the-Terrorism-Acts-in-2012-FINAL_WEB1.pdfAccess 18/8/2013
The power to stop and detain someone comes from Schedule 7 of the UK Terrorism Act 2000. The power allows border officers to stop people they may suspect of terrorism or terrorism related activities. Although these are broadly defined by the legislation, the exact criteria for stopping someone are not defined by the Act. However, all states will have some sort of criteria as the case of Laura Poitras reveals.
“They took my bags and checked them,” Poitras said. “They asked me what I was doing, and I said I was showing a movie in Sarajevo about the Iraq war. And then I sort of befriended the security guy. I asked what was going on. He said: ‘You’re flagged. You have a threat score that is off the Richter scale. You are at 400 out of 400.’ I said, ‘Is this a scoring system that works throughout all of Europe, or is this an American scoring system?’ He said. ‘No, this is your government that has this and has told us to stop you.’ ” (Accessed 18/8/2013)
Why did it take so long?
In the case reported in the news, Mr. Miranda, the partner of journalist Glenn Greenwald, was stopped and held for 9 hours, which is the maximum time under the Act. The time was exceptional as less than 1/2000 people are stopped for that long.
If it takes so long, are they going to do something about it?
The time anyone is delayed at an airport can be distressing. When it is related to an official investigation or under terrorist powers, it can be frightening. One of the reasons people are held that long is that the officers are often seeking legal advice before releasing or detaining the suspect. As the Home Office consultation response agrees, 9 hours is too long and they have proposed to reduce it.
28. Some respondents thought that the fact that only a very small proportion of examinations went over 6 hours (less than three times per 10,000 examinations) demonstrated that the power was not abused or used disproportionately.
„When dealing with issues of National Security police officers should not be placed under undue time constraints. It is evident that the time limit (9hrs) is rarely used, however, should it be necessary then it is a valuable tool. From a community impact perspective the number of examinations / detentions going anywhere close to the max is almost insignificant. This is indicative of the legislation being used proportionately and fairly.‟
„The length of time is clearly not impactive on individuals as only 1 in 2000 have gone beyond 6 hrs. It is clear that Officers do try to keep the time a person is detained to a minimum but Officers should retain the power to keep a person longer if required to complete their enquiries. This should be monitored by a supervisor as in police custody cases.‟
29. The Government has concluded that the statutory maximum period of detention should be reduced. An amendment to current legislation has been laid before Parliament in the Bill. (accessed 18/8/2013)
So how does it explain what happened?
What may have happened is Mr. Miranda was flagged by the computer. Most likely, the people at the counter would not have known who he was. The reason for the flagging, though not yet known, is likely to be that Mr. Greenwald is known to have received documents from Mr. Snowden who is wanted for criminal and espionage charges by the United States government. As a result, it is likely that the computer flagged Mr.Miranda because he is linked to Mr. Greenwald.
With it being a Saturday morning, it is also likely that they could not get the necessary legal or political clearance to release Mr. Miranda. Imagine the officer who sees that the computer flags Mr. Miranda similar to Laura Poitras. Is he going to release him on his own authority, or is he going to find someone else to make that decision? In that situation, the default option for an officer is do nothing because someone else can decide to release him. If the officers had known the attention it would generate, I would suggest they would have released him sooner.
How to complain.
The above will be cold comfort to Mr. Miranda and Mr. Greenwald who have had to suffer through this ordeal. If they are aggrieved, they do have the right to complain. The Independent Police Complaints Commission (IPCC) would deal with their complaint. However, they may also wish to contact David Anderson QC who conducts an independent review of the Terrorism Acts each year. As he reviews how the Acts are working, they may wish to contact him about their experience to offer their views on how the system can be improved.
As the report points out of the 60,000+ people who were stopped in 2011 only 20 filed a complaint with the IPCC. See paragraph 10.27 of the 2012/13 report.
Conclusion: a bureaucratic bungle that is now worldwide news
On the surface, this appears to be a heavy-handed attempt to intimidate Mr. Greenwald and his family because of his work with revealing the NSA programmes. An alternative explanation is that a bureaucratic process caught a very well connected albeit unknown person. In true bureaucratic fashion, it is likely no one wanted to make the decision to release him. As a result, he had to wait the maximum amount of time when that would be an automatic release point. To be sure, there may have been a decision to hold him for the 9 hours because of Mr. Greenwald. However, based on the evidence within the reports and the consultation, it would seem (until other evidence contradicts it) to be a basic bureaucratic bungle that captured worldwide media attention.
- UK detains Glenn Greenwald’s partner for nine hours (stuff.co.nz)
- Snowden journalist’s partner detained under terror law – Brisbane Times (brisbanetimes.com.au)
- Glenn Greenwald’s Partner Detained in London for Terror Questioning (gawker.com)
- Edward Snowden journalist’s partner detained under terror laws (metro.co.uk)
- Greenwald’s partner detained (politico.com)
- No Miranda Rights (writinglikepunching.wordpress.com)
- Pissing off the Government Via Investigative Journalism Can Be Bad for Your Loved Ones: Glenn Greenwald’s Partner Detained, Possessions Stolen Under UK Terrorism Act (reason.com)
- UK Detains Glenn Greenwald’s Partner for 9 Hours Under Terrorism Law (theatlanticwire.com)
- Glenn Greenwald’s Gay Partner Detained at Airport for 9 Hours, Questioned Under Terrorism Act (patdollard.com)
Why didn’t he get access to a lawyer? Was this a bureaucratic bungle?
Perhaps the computer said, “No”?
Thanks for the comment. I would suggest that he did not have access to a lawyer because the legislation does not allow for it. The legislation is dealing with people entering the country, for the most part, so it would not work very well if border crossing questions allowed legal advice. However, the independent reviewer flagged up this problem and the Home Office is reviewing it as part of their consultation response.
“36. An amendment to current legislation has been laid before Parliament in the Bill. This will
require that all examinations lasting more than one hour require detention – this will
ensure all individuals examined for longer than one hour have a right to access legal
advice, which is not currently the case.”
As the name was found from the passenger lists, it would appear the computer did flag Mr. Miranda for a reason. What still remains to be seen, if we ever see it, are the criteria by which someone is flagged. I tried to make that point in my post when I mentioned the experience of Laura Poitras.
It would now appear that the British Government had a reason to stop Mr. Miranda. As some of the intelligence that was leaked related to their programmes, it is not beyond the realm of the possible that they would have their own motives and reasons for stopping Mr. Miranda.
Schedule 8 sets out rights and conduct for detention under Schedule 7 or Section 41. A solicitor can be contacted as soon as reasonably practicable, with the proviso that a Superintendent or above can authorise a delay if it is required to prevent tampering with evidence of a serious offence, harm to people, or collection of information.
Aside from delay because it was not ‘reasonably practicable’ (a loose legal term), an official delay may have been granted as offences under Section 58 (information etc…) are deemed to be serious offences by Schedule 8.
Perhaps more important are the wider powers of search and seizure granted by Schedule 7 compared to Section 41 – with a lower legal test because they are designed for use in a fluid operational situation. That Miranda was targeted specifically suggests that full detention under Section 41 would have been more appropriate, but the legal tests may have been too onerous.
However, to develop your bureaucratic point further; rather than indecision, it may simply be that Schedule 7 is easier to carry out than a full Section 41 arrest (which allows for detention for 48 hours, but is also subject to numerous hurdles). It could be that a quick, easy to carry out detention is much more useful for officers than an extensive 48 hour one with paperwork, and Schedule 7 is preferred because of this alone.
But this does not mean that the power was used correctly or proportionately, and use should be tested in court.
I think you are correct that this will be tested in court. What will be the crucial test is whether s.58 can hold up to close scrutiny given the context is a journalist rather than previous cases where offenders appeared to be returning from training camps. We all await the unfolding of the events and how the government will make its case on our behalf.
Thanks again for a positive post.
Hello! Though I initially posted more in line with what actually happened in my blog post (which you linked in your post), I read your post with interest and I found it convincing. I was actually planning on adding an update with your plausible theory as a caveat to my post when the news of how things happened broke.
But I think I should say this: I liked your theory a lot and it had something important going for it. That thing was that it did not have the assumption of agency behind every action taken by the government. After many years of frequent access to government people, I have come to think that really a much greater proportion of actions taken by any given government are not taken with any kind of rationale or agency. So the “dumb systems” theory you proposed had a lot going for it.
Thanks for the positive comment. Sorry I have taken so long to respond. In this case, I am beginning to change my mind. I think that there is an element of “dumb systems” at work but in this case, I think it is now intelligence led. I think that they knew what they wanted when then stopped Mr. Miranda. How much they expected to find is another matter.
My guess, though, as my later post suggested is that they were rather light on Mr Miranda because their goal was to obtain the material and then consider charges. Now that they have the material, they are in a better position than if they had arrested Mr. Miranda as their case would have rested more on the intelligence, leading to the stop, rather than what they have subsequently discovered.
In any case, this is all speculation on my part as I watch in anticipation as the events unfold.
Thanks again for the positive comment.