On 18 August, the police stopped Mr. Miranda, the husband of Mr. Glenn Greenwald, under schedule 7 of the Terrorism Act 2006. The debate has focused on whether the United Kingdom government over reacted and used the law inappropriately against a journalist. Although Mr. Miranda is not a journalist, it has been argued that stopping him was an attack on journalism.
I want to suggest an alternative argument that the United Kingdom took a softer line on Mr. Miranda because of his status. I do not mean by that Mr. Miranda suffered any less or did not have a traumatic experience. A police interrogation especially in a foreign country is never a pleasant experience.
What I would argue is based on earlier arrests and detentions under the Schedule 7 and the Terrorism Act; the approach taken with Mr. Miranda seems less robust. My argument is speculative and is only based on the logic of the situation and what other arrests have involved. Here is my case.
First, I would suggest that the UK government might have had intelligence that gave them a reason to stop Mr. Miranda. How else could the Home Secretary be aware of the decision to stop Mr. Miranda? They will have targeted because foreign intelligence would have indicated he carried objects or information. I do not know how or why they would have known; an ironic twist would have been if it was the NSA programs that were disclosed were used to get the intelligence.
The UK police would have known he was on the flight based on the passenger name record (PNR) that is used by airlines, travel agents and governments for immigration control purposes. The UK government has taken a broader approach with the use of PNR which has led to data protection challenges from the EU.
In the past, the UK government has arrested people suspected of terrorism offences at UK airports. On 20 April 2012, three men were arrested under suspicion of breaching section 57 of the Terrorism Act. Officers from West Midlands Counter Terrorism Unit travelled to Oman before deciding to arrest the suspects. In that instance, the stop was described as pre-planned and intelligence led.
In another case a NHS doctor was arrested on return from Syria under the Terrorism Act. On 11 October 2012 a doctor was arrested for suspicion of being involved in the kidnapping of a UK citizen in Syria. One of the kidnap victims said a captor had a south London accent. The doctor was arrested after police investigation to name him.
What is curious is that the Miranda case has not been described as pre-planned and intelligence lead. Was it intentional to avoid a focus on the intelligence that would have indicated that Mr. Miranda should be stopped? If the goal was to avoid focus on the intelligence and pre-planning, then the Schedule 7 would be the best way to approach the stop. However, that approach raises a further question.
Second, if the United Kingdom had intelligence to suggest that Mr. Miranda was carrying documents that were harmful to United Kingdom national security, why was he not arrested? If he had such documents, then he could have been in breach of s.58 of the Terrorism Act 2000.
Section 58 states:
(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 Mr. Miranda held documents, such as those taken from the NSA, they would be of use to a person committing or preparing an act of terrorism. Yet, the United Kingdom government has not pursued this line. Why did the United Kingdom decide to stop Mr. Miranda, but not arrest him? Then they initiated a criminal investigation only after they released him and he was safely in Brazil?
Third, the Metropolitan Police accepted the injunction that limits their use of his material to national security matters. However, they were already under a legal compulsion to return the material within 7 days per schedule 7 paragraph 11 seized equipment can be kept “for a period not exceeding seven days”.
Where the United Kingdom appears to have been excessive is the amount of time they detained Mr. Miranda. They held him for 9 hours when they could have released him if their focus was on the material seized. However, one could speculate that to hold him for a short period of time would focus attention on the stop being made to obtain the material he carried.
Finally, if the documents that Mr. Miranda carried are as dangerous to United Kingdom national security as suggested, was a sterner approach warranted? Yet, we find that Mr. Miranda is now in Brazil. His possessions are being searched and are likely to be returned within 7 days. Perhaps, one could conclude that Mr. Miranda received a less rigorous approach because of, not in spite of, being the husband of Mr. Greenwald. Perhaps the United Kingdom government tried to minimize its approach against a journalist for the reasons which have now been manifested. By comparison, they did not take a light approach in the other two cases that led to arrest or criminal investigation.
We shall know more once the 7 days have finished and the United Kingdom government has to return the material or file charges. David Anderson QC, the Independent Reviewer of the Terrorism Acts, will review the event and give us a better insight.
In the end, it may be the case that the United Kingdom government took a less aggressive approach because of its respect for a free press.
- David Miranda’s detention at Heathrow ‘extraordinary’, says Keith Vaz Senior MP to seek explanation from police after detention of Glenn Greenwald’s partner under the Terrorism Act (theguardian.com)
- Police inquiry into Miranda material (bbc.co.uk)
- The Terrorism Act 2000 (robertkyriakides.wordpress.com)
- Criminal inquiry after Miranda data seized under terrorism law (yorkshirepost.co.uk)
- Greenwald partner to sue UK over detention (thehill.com)
- Outcry over detention of Glenn Greenwald’s partner under terrorism legislation (counterinformation.wordpress.com)
- The detention of David Miranda was an unlawful use of the Terrorism Act (theguardian.com)
- David Miranda: ‘They said I would be put in jail if I didn’t cooperate’ (theguardian.com)