Was David Miranda’s detention a legal and reasonable application of the Terrorism Act?
Good old British compromise wins again. David Miranda’s lawyers sought an injunction to prevent the police from inspecting the content of the equipment confiscated from him at Heathrow on Sunday. Home Secretary Theresa May claimed it was necessary to examine the documents “without delay in the interests of national security”. The police said it was now part of a criminal investigation.
So the judge delivered a curate’s egg where all sides could claim they got the good part: the police can examine the content, but only for national security purposes. But the important question still remains: was David Miranda’s detention a legal and reasonable application of the Terrorism Act?
The first thing we have to do is forget the dictionary definition and everything we think we know of what constitutes terrorism and terrorists. It is defined in the Terrorism Act – and if an Act defines the Pope as a Jewish Muslim, then as far as UK law is concerned, the Pope is a Jewish Muslim and there’s nothing else to it.
So what is terrorism as far as the British law is concerned? For this I am grateful to Amberhawk’s Dr Chris Pounder and Sue Cullen – both formerly from the Pinsent Masons law firm – who write the HawkTalk blog. I won’t go into the details, but recommend their blog: Spot the terrorist? Data protection and the seizure of personal data on laptops at airports.
According to the law, a terrorist is a person “concerned in the commission, preparation or instigation of acts of terrorism”.
According to the law, terrorism exists where the use or threat of action “is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public,” and “is made for the purpose of advancing a political, religious, racial or ideological cause”; plus any one of the following:
(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.
So, three tests for terrorism. Applying these to David Miranda, and assuming that his laptop contained Snowden documents (which would be reasonable suspicion),
- the stated purpose of the leaks is to influence government
- the stated purpose could be described as both ‘political’ and ‘ideological’
- the effect, according to government, could result in increased terrorist attacks against the UK (that is, “a serious risk to the health or safety of the public”) and is also designed “to interfere with or seriously to disrupt an electronic system” (that is, GCHQ’s Tempora surveillance system).
I think it is quite clear that under the Terrorism Act, David Miranda is a terrorist.
The second part of our question is whether his detention was a reasonable application of the Terrorism Act. This is a red herring. Any legal application of a law is reasonable. The real question is whether the Terrorism Act itself is reasonable. And the answer to this is human rather than legal. How on earth can we tolerate a law in which the police can classify the partner of a journalist as a terrorist when his sole purpose is to deliver documents that are embarrassing to the government? This is a police state in action; and the Terrorism Act is one of its tools.