Miranda – Don’t Menshn The Law

As the arguments continue over the detention of David Miranda at Heathrow last Sunday, one question that is now being asked, and answered in a variety of ways, is that of whether it was legally sound. Now, while dear Louise Mensch has already examined the relevant statute and concluded that the law was being applied correctly, some who actually know their law do not agree.

Has she got legal news for us? Afraid not

And Ms Mensch is not alone in the certainty that what happened to Miranda was within the law: Dan Hodges, the Colonel Nicholson of the Labour Party, assumes this when he justifies the detention, and then in a later post not only declares that this is a small price to pay for “keeping us safe”, but also shows his credulousness in accepting what his “Whitehall source” tells him about data security.

So was the detention legal or not? Ms Mensch is convinced that the definition of terrorism in the 2000 Act covers it. But “being in possession of information stored electronically while in a transit lounge with intent” is certainly not covered by the definition she cites (for starters, there is no “use or threat of action” that can be even inferred from just the possession of information).

I am not alone in questioning the legality of the action, and of the excuses subsequently wheeled out in its defence: David Allen Green, who writes the excellent Jack Of Kent blog, has concluded after considering Schedule 7 of the 2000 Act that “if the questioning, detention, and search of Miranda was for a purpose other than to determine if he was a terrorist, then it was unlawful”.

There are others raising concerns. Joshua Rozenberg asks “Why, then, was Miranda detained for eight hours and 55 minutes before being released without charge?” and concludes “It is impossible to escape the conclusion that the power was used disproportionately and therefore inappropriately”. But the most telling intervention has come from one of those who introduced the bill in the Lords.

Charles Falconer “said that the act makes clear that police can only detain someone to assess whether they are involved in the commission, preparation or instigation of terrorism”. He specifically told the Guardian that “I am very clear that this does not apply, either on its terms or in its spirit, to Mr Miranda”. He was equally clear that Miranda did not fall within the definitions described in Schedule 7.

This is his interpretation: “The reason that doesn't fall within schedule 7 is because: even assuming that they think there is material which has been obtained in breach of the Officials Secrets Act, the action of Miranda or anybody he is acting with could not be described as somebody concerned in the commission, preparation or instigation of acts of terrorism”. I’ll take that over Hodges and Ms Mensch, thanks.

Although I’m sure the Member for Manhattan Upmarket will be back for more later.