David Miranda's detention: Morally wrong, legally right

The detention of David Miranda for nine hours at Heathrow has created shockwaves and outrage around the world, drawing condemnation from MPs, the public, the media and even John Cusack. However, despite the moral outrage, as advocate and human rights specialist Niall McCluskey explains, the detention of Miranda - partner of the Guardian's Glenn Greenwald - is perfectly legal and almost impossible to challenge.

David Miranda was held for 9 hours and released without charge

What legal basis is there for Miranda's detention?

The Terrorism Act 2000 creates very wide stop and search powers.

Section 40(1)(b) of the Act defines a terrorist as a person who “is or has been concerned in the commission, preparation or instigation of acts of terrorism. “ I am not aware of any evidence which places Miranda in this category.

Schedule 7 of the Act gives power to constables, immigration officers and customs officers to question a person for the purpose of determining whether he appears to be a terrorist. The examining officer may exercise his powers whether or not he has actual grounds for suspecting that a person appears to be a terrorist. Therefore the absence of any evidence against Miranda would not prevent him being lawfully detained.

A person who is questioned in this context must : -

a) give the examining officer any information in his possession which the officer requests,

b) give the examining officer on request either a valid passport which includes a photograph or another document which establishes his identity,

c) declare whether he has with him documents of a kind specified by the examining officer,

d) give the examining officer on request any document which he has with him and which is of a kind specified by the officer.

A person commits an offence punishable by up to three months imprisonment if he wilfully fails to comply or wilfully obstructs, or seeks to frustrate, a search or examination.

Schedule 7 clearly states that “a detained person shall be deemed to be in legal custody throughout the period of his detention. “

So as a matter of law it may be difficult to argue that the detention of David Miranda was unlawful. The Terrorism Act is drafted deliberately wide to give examining officers far reaching powers and to restrict the rights of detainees. It is of course very unusual for a passenger to be held for nine hours under schedule 7 of the Terrorism Act 2000. Also Miranda merely as the partner of a journalist who has written on security matters is hardly someone who on the face of it appears to be a terrorist. It has been alleged that the detention of Miranda was an attempt by the authorities to intimidate but proving that and demonstrating an unlawful detention is quite another matter given the terms of the legislation.

In Kafka's The Trial the unhappy protagonist Josef K is unexpectedly arrested by two unidentified agents from an unspecified agency for an unspecified crime. This fictional experience appears not too dissimilar from that of David Miranda's. You would think that there would be some sort of legal recourse. Unhappily the Terrorism Act 2000 is constructed in a way that makes such unspecified detentions possible. It is an example amongst others where rights have been eroded in the so called war on terror.

Niall McCluskey is a practising advocate specialising in human rights issues.

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