Schedule 7 to the Terrorism Act, under which a Guardian journalist’s partner, David Miranda, was held for nine hours at Heathrow, is an odd piece of legislation – not least because, unusually for criminal law, it deals with people who are for the most part wholly innocent. It is drafted with the intent – and has clearly had the effect – of detaining large numbers of innocent people to ask them about their terrorist activities.
As a result about 70,000 people were detained under Schedule 7 in 2011-12 – of whom only 24 were then arrested for terrorist related offences.
The authorities are perfectly happy with this appalling hit rate. The official guidance to officers when they use Schedule 7 is as follows: “Examining officers must take into account that many people selected for examination using Schedule 7 powers will be entirely innocent of any unlawful activity … All persons being stopped and questioned by examining officers must be treated in a respectful and courteous manner.” (Examining Officers under the Terrorism Act 2000 pdf)
The advice points out that “The powers to stop, question, detain and search persons under Schedule 7 do not require an examining officer to have any grounds for suspicion against any individual prior to the exercise of the powers.”
This may seem somewhat bizarre: a crucial anti-terrorism power that needs not even the tiniest scintilla of evidence of a person’s involvement in terrorism before it is operated against that person; and a clear acknowledgment that, for the most part, the examining officer will be wasting his own and the traveller’s time.
So is it a completely arbitrary power? And if so does that mean Miranda has no case for wrongful detention – that Parliament must have intended it to be an arbitrary power so individuals can’t complain if it is use arbitrarily? After all the law seems designed to be used on the innocent and the authorities acknowledge it does just that – hence the need to be terribly courteous to them.
The High Court has now declared it is not an arbitrary power – and it is right. For one thing lack of grounds for suspicion is not the same as lack of suspicion – and security personnel are a suspicious lot (that’s what they are paid for). Additionally, there are two issues that have to be shown if Schedule 7 is to be operated lawfully.
Firstly there must be a context of terrorism. Terrorism must be in the offing or suspected; potential or actual terrorism must be the context in which Schedule 7 is operated. The lack of need for grounds for suspicion relates only to the detainee – there need not be grounds to suspect him or her but terrorism must be suspected. So the guidance notes:
“Although the exercise of Schedule 7 powers is not based on an examining officer having any suspicion against any individual, the powers should not be used arbitrarily. An examining officer’s decision to exercise their Schedule 7 powers at ports must be based on the threat posed by the various terrorist groups active in and outside the United Kingdom.”
The officer must, for example, take into account “known and suspected sources of terrorism”; or “Individuals or groups whose current or past involvement in acts or threats of terrorism is known or suspected and supporters or sponsors of such activity who are known or suspected”; or “The means of travel (and documentation) that a group or individuals involved in terrorist activity could use”; or emerging patterns of travel linked to terrorism – perhaps Berlin-Heathrow-Rio is a well known escape route for al-Qaida operatives?
Presumably not. In fact it would be difficult to argue that Miranda, headed for Brazil and changing planes one Sunday morning at Heathrow was doing so within any terrorism context. Brazilian flights aren’t (one would think) “known or suspected sources of terrorism”.
If terrorism wasn’t the context, then suspicion of Miranda must have been – for detaining him to be legitimate. Lack of grounds for suspicion isn’t a requirement of Schedule 7 (of course – that would be silly). It is simply that grounds for suspicion of an individual are not required if there is a terrorism context. But if there is suspicion, it would have to be suspicion directed towards the individual who is detained (anything else would also be silly).
Since there was no context of terrorism on which the officers acted, it follows that Miranda was held on suspicion, with grounds for suspicion rather than a sudden hunch since the grab was planned some time ahead. Perhaps he was deemed to fit the category: “Individuals or groups whose current or past involvement in acts or threats of terrorism is known or suspected.” Police would have to argue they knew he was passing through and had grounds to suspect he personally had some link with terrorism – though there was no actual terrorism he could be linked to.
The second requirement of Schedule 7 is that the questioning of the detainee must be towards detecting whether the detainee appears to be a terrorist. So Sched 7 para 2(1) says: “An examining officer may question a person to whom this paragraph applies for the purpose of determining whether he appears to be a person falling within section 40(1)(b).”
Section 40(1)(b) defines a terrorist as: “a person who … is or has been concerned in the commission, preparation or instigation of acts of terrorism.” A bit circular; a bit obvious. (Terrorism is defined elsewhere – see below.) But the point is that, after questioning the detainee specifically on terrorism, if it appears he might be a terrorist, he should be arrested – with the full legal protections for the detaineee that would imply. (The detainee can be held without charge for 48 hours including any period under Schedule 7; this can be extended up to 24 days with judicial warrants under Sched 8 Part III of the Terrorism Act. Legal representation is available.)
The good news for Miranda is that, despite the best efforts of six or seven different questioners, he did not appear to be a terrorist – even though, when he went into detention there was, one must assume, suspicion that he appeared to be a terrorist – otherwise he couldn’t have been questioned under Schedule 7.
So little like a terrorist did he appear after this grilling that the officers were happy to see him off on his journey to Brazil with, no doubt, a cheery “Bon voyage” (since they were still under an obligation to treat him in a “respectful and courteous manner”).
Miranda finds himself a person who is both suspected of and not suspected of terrorism. Detained under terrorism legislation when there was no terrorism. His personal effects held back, presumably suspected of containing terrorist material – while he is not suspected of carrying terrorist material. Alice in Wonderland or Kafkaesque? You choose.
NB: The High Court in February 2014 rejected Miranda’s appeal: David Miranda’s judicial review challenge pdf
However, the Court of Appeal has (in January 2016) to an extent upheld Miranda’s appeal – on an Article 10 freedom of expression point regarding journalists and their sources – while saying he was lawfully held under the legislation.The judgment, involving a declaration that the legislation is incompatible with the European Convention is here:  EWCA Civ 6
Head of Legal here looks at a significant point about the Court of Appeal judgment regarding the overly wide definition of terrorism in Section 40 et al of the Terrorism Act. While more or less obiter, Lord Dyson’s view if adopted would somewhat restrict the interpretation in Section 1(2) by suggesting the alleged terrorist must have a mental element ie intention to cause violence or damage or endanger life, as well as political ends ie “to influence the government or an international governmental organisation”. Otherwise firefighters or junior doctors on strike are terrorists: they put lives at risk, they want to influence government policy.
The Anti-social Behaviour Act 2014 Schedule 9 has mitigated some of the worst elements of Schedule 7 reducing the questioning time to six hours and including a state of detention after an hour. Para 6(4) is deleted [A person detained under this paragraph shall (unless detained under any other power) be released not later than the end of the period of nine hours beginning with the time when his examination begins.] The following is added:
(2) After the end of the 1 hour period, the person may not be questioned under either of those paragraphs unless the person is detained under paragraph 6.
(3) If the person is detained under paragraph 6 the person must be released not later than the end of the 6 hour period (unless detained under another power).
(4) In this paragraph—
“the 1 hour period” is the period of 1 hour beginning with the time the person is first questioned under paragraph 2 or 3;
“the 6 hour period” is the period of 6 hours beginning with that time.”
Head of Legal has the police statement on the detention and a first blush assessment of their defence here (5/11/13)
He has also collected his running tweets from day 2 of the court case, R (Miranda) v Home Secretary (6 & 7 November 2013) and given an assesment here
Note: Alrich is grateful to ObiterJ for some good background on the Schedule 7 law: here
See also: Why GCHQ surveillance is illegal – whatever they say. Legal background here
High Court rejects Silvie Beghal human rights case here
The Bindmans pre-action protocol letter in this case is here.
The Government’s case is here (courtesy Head of Legal): Oliver Robbins witness statement
Jack of Kent goes through the Act regarding Sched 7 here.
More background to the Act provided by UK Constitutional Law blog here
The 2012/13 Independent Terrorism Reviewer’s report on the Terrorism Acts is here: (Anderson, 2013 report (pdf)
The August 23 injunction judgment is here (pdf): The Queen on the Application of David Miranda -v- (1) Secretary of State for the Home Department (2) Commissioner of Police for the Metropolis judgment – 23 August 2013 (PDF 116kb)
Terrorism defined: Terrorism Act Section 1
(1) In this Act “terrorism” means the use or threat of action where—
(a) the action falls within subsection (2),
(b) the use or threat is designed to influence the government or an international governmental organisation, or to intimidate the public or a section of the public, and
(c) the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause.
(2) Action falls within this subsection if it—
(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.