disclaimer: I am not a lawyer so this is a layman’s reading of the Act. As such, it is a speculative piece of writing. Please do not take it as a legal interpretation of how the Act works.
For a robust legal analysis of the Act and how it may have applied to Mr. Miranda please see the blog by Carl Gardner http://www.headoflegal.com/2013/08/20/could-david-miranda-be-terrorist/
In the current debates over the decision to stop Mr. Miranda under the Terrorist Act 2006, there have been many discussions about how to define if someone is a suspected terrorist. As the Terrorism Act 2006 applies only to terrorists and suspected terrorists, the debate has been whether it applies to Mr. Miranda. In making it apply to Mr. Miranda, the government may have revealed more about their intelligence than they intended. I am not a lawyer so this is based on a layman’s reading of the Act.
Is it schedule 7 and section 40(1) (b)?
For the most part the focus has been on schedule 7 with a particular focus on whether Mr. Miranda fit the definition of suspected terrorist under s 40(1) (b). However, there are a couple of larger issues missed by this debate.
First, the person was stopped under the Terrorism Act 2000. Therefore, the Act applies. Under that Act, the government has broad powers to prevent terrorism. One of the powers, as we have seen, is the ability to question people at ports under schedule 7. The main question is how to know whether someone is a suspected terrorists and whether they meet the criteria of section 40(1) (b).
(b) is or has been concerned in the commission, preparation or instigation of acts of terrorism.
In turn, this has led people to look at section 1 for the definition of terrorism. In particular, the focus has been on section 1 (1) and (2).
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 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.
What I would like to suggest are two alternative views. One is simple, and presents no problems, which is the use of schedule 7 (2) (4). The second is more complicated, and presents some problems, which is the use of section 40 (1) (a).
Is it just a simple as schedule 7 (2) (4)?
As Schedule 7 (2) (4) states
(4)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).
Thus, an examining officer may have a suspicion or credible intelligence that indicates that someone should be questioned even if they do not meet 40(1) (b). However, we seem to have missed a larger point with our focus on schedule 7 and section 40 (1) (b).
A complicated route through section 40(1) (a)
We need to look at the Act. In particular, we need to look at section 40 (1) (a). I would suggest that as a matter of logic that the Act applies when part of it is applied. A schedule can only work if the Act itself applies. If the Act itself applies, then the Act is applicable even though some parts of it may not be relevant to the case. As such, I believe that section 40 (1) (a) is relevant to determining if someone is a suspected terrorist, which is the reason people are stopped and questioned at ports. If they are not a suspected terrorist, then the Act would not apply. In other words, the Act does not apply to anyone who is not a suspected terrorist.
Under 40 (1) (a)
40 Terrorist: interpretation. (1)In this Part “terrorist” means a person who—(a) has committed an offence under any of sections 11, 12, 15 to 18, 54 and 56 to 63, or
If we look at section 58 we see a probable cause to stop someone who may have documents that would aid terrorists.
Section 58 brings in electronic records
If we look at section 58 we see
(1)A person commits an offence if—
(A)he collects or makes a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism, or
(b) he possesses a document or record containing information of that kind.
(2)In this section “record” includes a photographic or electronic record.
If the files obtained by Mr. Snowden would have information about terrorist activities or at least would have value for them.
If the suspect holds documents, such as those taken from the NSA that would be use to a person committing or preparing an act of terrorism, then it would be a possible breach of section 58. If that is the case, then the examining officer would have enough probable cause to stop the suspect and question them about what they have to see if they are a suspected terrorist as defined by either 40 (1) (a) or 40 (1) (b).
Follow the logic trail; does it show someone could be a suspect terrorist?
If officer had credible intelligence that would show Mr. Miranda possessed computer files that would “be useful to a person committing or preparing an act of terrorism”, then s.58 would apply. If section 58 applies, then section 40 (1) (a) applies. If 40 (1) (a) applies, then section 1 applies. If section 1 applies, then 40 1(b) applies. By his possession of the NSA files, if they contained information that would be useful to a person committing or preparing an act of terrorism, then he would be a suspected terrorist. If he is a suspected terrorist then the officer would have been justified to use schedule 7 powers to stop and question.
Whatever the reason, we have a problem.
Second, no matter the legal process followed to stop Mr. Miranda, there is a larger problem for all parties involved. A problem, they may need to negotiate a solution to very quickly. What I would suggest is that if the government followed the logic I set out (again, a big if), then they may have indicated that the files taken by Mr. Snowden contain information that will aid terrorists if disclosed. What we now have is a serious problem for the government and those who possess those documents. If a newspaper publishes material but does not know the way in which it can aid a terrorist and the terrorist uses that information, will the newspaper be complicit? If the government knows that the files contain material that would help terrorists if disclosed, then they have to recover them. Yet, to recover them, they will have to indicate which ones and for what reason. Moreover, they may have no way to recover them if they have been dispersed to other people.
Vetted to protect the United States, but what about the United Kingdom?
Herein we see a possible problem for the UK government. Mr. Snowden said he carefully vetted the documents he took so as not to harm the United States. Did he make such a careful vetting for the UK? More worryingly, if Mr. Greenwald and Ms Poitras are allowing these documents to be transported by Mr. Miranda, what does this suggest about their operational security for information that is still highly classified?
To know what process the government used to detain Mr. Miranda, we will have to wait to see how the government defends itself against his legal claim.
- May briefed before Miranda detained (standard.co.uk)
- GUARDIAN: ‘A betrayal of trust and principle’… (theguardian.com)
- British law gives broad powers for terror detentions (channelnewsasia.com)
- The Terrorism Act 2000, David Miranda and the rule of law. (bigbrotherwatch.org.uk)
- What is Schedule 7 of the UK Terrorism Act? (itv.com)
- Was Miranda’s detention lawful? Yes, but only because the Terrorism Act allowed it (chrisattrill.wordpress.com)
- Miranda 2 ~ The Code of Practice (truelabour.wordpress.com)