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The Curious Detention of David Miranda

 Written by Donald MacKay (4th year LLB)

In June 2013, Guardian journalist and commentator Glenn Greenwald received the largest leak of intelligence files since the end of the Cold War. [1] The name of the perpetrator: Edward Snowden. Remaining in contact, Greenwald wrote extensively on what the NSA files Snowden had given him revealed, causing a public backlash across the world against the US Government.  A long time campaigner against overreaching government legislation, both in the US and elsewhere, and previously a prominent critic of the Bush Administration’s Patriot Act, Glenn Greenwald was Snowden’s natural choice of journalist to disclose the files to.

Last week, Greenwald’s partner, David Miranda, was returning to their home in Rio de Janerio from Berlin, via London Heathrow Airport. In transit through Terminal 5, Miranda was detained for nine hours under Schedule 7 of the Terrorism Act 2000. [2] He had not legally entered the UK and was not intending to, he was merely transferring flights at Terminal 5.

The nature of Schedule 7 is itself alarming. Its purpose is to allow security officers at UK administered ports, airports or other border areas to detain persons “for the purpose of determining whether he appears to be a person falling within Section 40 (1) (b)”. [3] Section 40 of the same Act sets out the definition of “terrorist” as either a person who has committed an offence under a number of sections setting out criminal acts of terrorism, or a person who has been concerned in the commission of the same.

Perhaps the most concerning section of Schedule 7 to civil liberties campaigners is Paragraph 2(4), which states: “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).” In other words, a member of the UK Border Agency does not require either evidence or reasonable suspicion in order to arrest someone for the purpose of interrogating them. It is, in other words, a license to pick people at random on the off chance they are members of a terrorist cell, or potentially worse. The potential for racially motivated discrimination and the like are obvious.

In September 2012, the Home Office launched a public consultation document on the use of Schedule 7. [4] Cursory examination of this document reveals some concerning implications given the lengthy detention of David Miranda. At paragraph 2, they state: “If a person refuses to cooperate with the examination, they can be detained by the examining officer for a maximum of 9 hours. Most examinations, over 97%, last under an hour.” That number continues to drop dramatically. Table A (3) in the same document states that only 0.06% are detained beyond six hours – not more than 150 people since 2009. The reasonable assumption that most people would make is that the Border Agency would only hold persons for longer than six hours if they were really onto something – rather than someone which they had no evidence against. The number of people who pass through British ports every year numbers into the millions. The chances that Miranda was detained at random are extremely slim.

It is not the first time the prima facie dubious human rights credentials of the Terrorism Act 2000 have been called into question. Gillan and Quinton v United Kingdom[5] found Section 44 in violation of Article 8 ECHR – right to privacy. The applicants in that case were protestors at a 2003 arms industry fair in London who had been stopped and searched by police under the Terrorism Act. The Strasbourg Court found the stop and search powers were “neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse”, and found the Article 8 violation. It also noted “the risks of the discriminatory use of the powers against such persons is a very real consideration”.

In Gillan and Quinton, the applicants were released from detention without charge but had documents removed from their person. Coming back to the Miranda case – David Miranda was eventually released from his nine-hour detention without the return of seized possessions – all electronic equipment he had been carrying, along with a number of DVDs and USB sticks.

The only distinction between the S.44 powers ruled in violation by the Strasbourg Court and the still legal Schedule 7 is the restricted location in which Schedule 7 operates – the border area of ports or airports, and a variety of locations at the UK’s only land border in Northern Ireland. While clearly security in such locations is of a more pressing concern than the rest of the country, Schedule 7 operates in an entirely arbitrary manner. The time may well have come to review its legality under Article 8 too.

There are, therefore, bigger picture concerns about the legality of Article 8. But even if it is finally held to be legal by the Strasbourg Court – given their high margin of appreciation in the area of national security, not impossible – it has clearly been and will continue to have been badly misused in the case of David Miranda.

Whether or not Edward Snowden can legitimately be considered a terrorist by the United States and its allies is a matter of debate. Glenn Greenwald’s work with Snowden, along with Laura Poitras, the US filmmaker who Miranda was visiting in Berlin, is undeniably controversial. However, if the detention of David Miranda was indeed, as has been suggested, an attempt to intimidate Glenn Greenwald into silence, it hasn’t worked[6].

Scrutiny was swift to fall on the Home Office. Both Shadow Home Secretary Yvette Cooper and Chair of the powerful Home Affairs Committee Keith Vaz have asked for inquiries to be made. The UK’s Independent Reviewer of Terrorism, David Anderson QC, made a detailed examination of Schedule 7 in his July report,[7] and has already pledged to make further inquiries into this particular incident. There may well be details yet to emerge, and it is possible that the Home Office will be able to justify its actions to Parliamentary and other scrutineers if not to civil liberties campaigners. But if it is indeed the case that the detention of David Miranda was an attempt to intimidate Glenn Greenwald and the wider journalistic community into subjected silence on government overreach into civil liberties, then those who campaign for the protection of privacy and freedom of speech have cause to be very, very worried indeed.

[1] Edward Snowden: the whistleblower behind the NSA surveillance revelations, Glenn Greenwald, Ewen MacAskill and Laura Poitras, 10 June 2013,

[2] David Miranda detention: MP asks police for explanation, BBC News, 19 August 2013,

[3] Terrorism Act 2000, Schedule 7, para 2

[4] Review of the Operation of Schedule 7: A Public Consultation, Home Office, September 2012,

[5] Gillan and Quinton v United Kingdom, 12 Jan. 2010 (No. 4158/05)

[6] Glenn Greenwald: detaining my partner was a failed attempt at intimidation, Glenn Greenwald, 19 August 2013,

[7] The Terrorism Acts in 2012: Report of the Independent Reviewer on the Operation of the Terrorism Act 2000 and Part 1 of the Terrorism Act 2006, David Anderson QC, July 2013, p.94


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