back to article Snowden bag-carrier Miranda's detention was lawful – UK appeal court

The UK Court of Appeal has dismissed a case brought by the partner of journalist Glenn Greenwald against his detention at Heathrow Airport – while stating that a key part of Britain's Terrorism Act breaches European human rights law. David Miranda, who was carrying encrypted documents on behalf of Greenwald to Rio de Janeiro, …

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  1. 2460 Something

    Was it really going to go any other way? It is very occasionally that the judiciary makes a common sense decision against the establishment. In this particular case it would not surprise me to find the dice were loaded from the start.

    Not only that, when it comes to legislation, it is put in place for a specific intent, every single time the actual wording is twisted to form whatever reasoning they need/want at the time followed by surprise that it was used in this way.

    I highly suspect that in reality the laws are made with the alter-purpose in mind, and it is then twisted around to fit a more publicly palatable justification (terrorists/children seem like winners every time).

    1. Anonymous Coward
      Anonymous Coward

      It could have gone the other way

      The other way being that the judges did not comment on the law.

      It did not.

      As it is - this is the worst judgement the government could expect - they rendered their "we can hold you as much as we like at a port with no due process" get out of jail card illegal.

      This goes to show why we need judicial oversight and Treasonous May (or her successor) oversight as specified in the various "acts" being pushed through the parliament is definitely not enough.

    2. NoneSuch
      Devil

      Democracy gone.

      "Lord Dyson also said that the publication of material can amount to an act of terrorism, as defined by the Terrorism Act, if the publication endangers life and the person publishing the material intends it to (or is reckless as to whether it does) have that effect."

      And as governments decide what info "endangers life" saying something the government does not like can now brand you as a terrorist.

      1. Doctor Syntax Silver badge

        Re: Democracy gone.

        '"Lord Dyson also said that the publication of material can amount to an act of terrorism, as defined by the Terrorism Act, if the publication endangers life and the person publishing the material intends it to (or is reckless as to whether it does) have that effect."

        And as governments decide what info "endangers life" saying something the government does not like can now brand you as a terrorist.'

        It's not clear from the article whether that comment was part of his reasoning or obiter dicta (Google is your friend). It would in any case be up to the court to determine whether something endangers life, not the government. Publishing instructions on how to make a bomb might reasonably be construed as endangering life. Publishing something that merely embarrasses the government would make for a tough job for even the best prosecuting counsel. With that in mind and without a better account of the case I'd guess it wasn't part of the judge's reasoning.

        1. SImon Hobson Silver badge

          Re: Democracy gone.

          > Publishing something that merely embarrasses the government would make for a tough job for even the best prosecuting counsel.

          However, the fact that it might get thrown out by the judge, and possibly the prosecutors given something of a telling off - doesn't help you when you're banged up in a cell, under arrest, your DNA and fingerprints taken by force for storage forever in the "DNA and fingerprints of terrorists" file, your computers taken away (really f***ing up your business that relies on them - but don't worry, you'll get them back eventually (after a couple of years) and they might even still work afterwards), your passwords "volunteered" under pain of a mandatory jail sentence, ...

          In short - yes, such a law can be used to make life exceedingly difficult. Having the case thrown out by a judge with "stern words" about the conduct of the prosecution will not help you when you life has been well and truly f***ed over - and you can no longer get a job since you now have a "police record" when anyone does a check on you.

          And for good measure, you can't even emigrate (or go on holiday) to some countries as a lot won't let you in if you've ever been arrested.

          Think about it - could you afford to go to court and be found completely innocent of all charges ?

    3. ToddR

      @2460 Something

      You are so wrong, judges irritate the government of the day on a weekly basis. Go live in China.

      1. DougS Silver badge

        @ToddR

        Judges may irritate part of the government of the day on a weekly basis, but only on subjects where the main parties have a difference of opinion so someone wins and someone loses.

        On subjects like this, where all the main parties are pretty much agreed, the courts almost never rule against them. There was no chance they'd rule otherwise in this case for that reason.

  2. Graham Marsden
    Big Brother

    "the publication of material can amount to an act of terrorism...

    "...as defined by MiniTrue and NewSpeak".

    FTFY

    1. Hans 1 Silver badge

      Re: "the publication of material can amount to an act of terrorism...

      >"...as defined by MiniTrue and NewSpeak".

      "...as defined by MiniTrue in NewSpeak".

      FTFY, NewSpeak is a language, after all ... upvoted anyway.

  3. Yugguy
    Joke

    Rights

    Miranda didn't get his Miranda rights.

    1. Anonymous Coward
      Anonymous Coward

      Re: Rights

      "Miranda didn't get his Miranda rights."

      Well he wouldn't as they don't exist in the UK.

      1. This post has been deleted by its author

        1. Anonymous Coward
          Anonymous Coward

          Re: Rights

          The internet (you can guess where) tells me the dilution of right to silence is constrained within the court with judges directions to the jury on the following instances of silence

          fails to mention any fact which he later relies upon and which in the circumstances at the time the accused could reasonably be expected to mention;

          fails to give evidence at trial or answer any question;

          fails to account on arrest for objects, substances or marks on his person, clothing or footwear, in his possession, or in the place where he is arrested

          fails to account on arrest for his presence at a place

          And silence alone is not sufficient for conviction.

      2. P. Lee Silver badge
        Joke

        Re: Rights

        >>"Miranda didn't get his Miranda rights."

        >Well he wouldn't as they don't exist in the UK.

        Some might say Miranda is non-functional here.

        Tada boom!

        1. Yugguy

          Re: Rights

          Yes I am well aware that they don't exist in the UK but frankly the joke

          "Miranda didn't get his caution"

          isn't quite as stunningly hilarious as my original.

  4. Roo
    Windows

    "if the publication endangers life and the person publishing the material intends it to (or is reckless as to whether it does) have that effect."

    The world would be a nicer safer place if that law would deter HMG from publishing "sexed up" "dodgy dossiers" that were written with the intent of endangering life on a grand scale (eg: Iraq).

  5. Hans 1 Silver badge
    WTF?

    Judge supports police state, claims the UK is not a nation that upholds human rights, as defined by the EU. Christ, this is air strip one, get me out of 'ere.

  6. James 51 Silver badge

    So now that's that out of the way, better not be caught carrying expense claims for MPs from now on.

  7. chivo243 Silver badge

    Truth = Terrorism?

    pfft. that is all.

    1. Hans 1 Silver badge

      Re: isInAccordanceWithOfficialVersion(data) != true is Terrorism

      ftfy

      1. Adam 1 Silver badge

        Re: isInAccordanceWithOfficialVersion(data) != true is Terrorism

        That is sloppy code.

        !isInAccordanceWithOfficialVersion(data)

        1. Hans 1 Silver badge

          Re: isInAccordanceWithOfficialVersion(data) != true is Terrorism

          Upvoted by he who wrote original code. ;-)

          I was just trying to make a point, criticism well taken!

    2. DavCrav Silver badge

      Re: Truth = Terrorism?

      "Truth = Terrorism?

      pfft. that is all."

      Sometimes things that are true can mean terrorism, yes. Imagine if a man is stopped in Heathrow carrying full instructions for the manufacture of an explosive and detailed plans for a public building, together with various crosses drawn at structurally weak points, an escape plan from said building, and a ticket for a ferry on the next day. This person is only carrying truthful documents, but it would be a very generous person indeed who did not find such material somewhat suspicious.

    3. Anonymous Coward
      Anonymous Coward

      Re: Truth = Terrorism?

      Incorrect. Theft of classified documents that protect society from terrorists, is aiding terrorism when you disseminate this classified information which assists the terrorists. And by the way, all speech is not free in our society for obvious good reasons. Criminals who try to portray themselves as saviors are duping the gullible.

  8. scrubber
    Big Brother

    Freedom of speech dies

    "if the publication endangers life and the person publishing the material intends it to (or is reckless as to whether it does) have that effect."

    Suddenly Draw Mohammed Day becomes an act of terrorism. Doublespeak indeed O'Brien.

    1. Phil O'Sophical Silver badge

      Re: Freedom of speech dies

      "if the publication endangers life and the person publishing the material intends it to (or is reckless as to whether it does) have that effect."

      Suddenly Draw Mohammed Day becomes an act of terrorism.

      But how is that materially different from the old freedom of speech test of "shouting FIRE in a crowded theatre"?. All freedoms necessarily have some limits, when they start to impinge on other freedoms. Publishing information with the intention of hurting someone, or in cavalier disregard of the fact that it may cause injury, is surely foolish at the very least, and should be punished?

      "Draw Mohammed Day" shouldn't cause any problems by that definition, but "publish Snowden's address and schedule, with details of his security team's weaknesses" could, for example.

      1. scrubber

        Re: Freedom of speech dies

        "But how is that materially different from the old freedom of speech test of "shouting FIRE in a crowded theatre"?"

        Ah, that old canard. Shouting "FIRE!" in a theatre is, or should be, perfectly legal. If the place is unsafe for you to do so then the owner should be brought up on charges for having an unsafe theatre.

        More importantly, let's look at where this nonsense originates: 1919 Schenck v. United States, Holmes used this idiotic example to justify banning handing out anti-draft leaflets. This abortion of a ruling was fortuitously overturned in a unanimous verdict by the court in the 1969 case of Brandenburg v. Ohio where the court held that government cannot punish inflammatory speech unless that speech is directed to inciting, and is likely to incite, imminent lawless action.

        Unfortunately they still had the opinion that a theatre is not a safe place to evacuate and hence yelling "fire" could, or is likely to, cause injury. In reality the theatre owner could sue and ban the person, the other patrons could sue, but there should be no criminal prosecution for this as there is virtually zero danger of harm - otherwise we'd ban fire drills, no?

        It just so happens we live in a world where certain groups of people are on a hair trigger for committing violence and statements like the one the judge gave not only reward overreaction by criminalising freedom of speech but actively encourage it. Which in itself is publishing material while being reckless as to whether it endangers life in future. Could it be that the judge has committed terrorism by publishing this opinion?

        1. Doctor Syntax Silver badge

          Re: Freedom of speech dies

          'Ah, that old canard. Shouting "FIRE!" in a theatre is, or should be, perfectly legal.'

          In practice I'd expect a court to take intent into account. If there was good reason to believe that there was a fire or other danger and the shouter acted on that basis then fair enough. If the court believed the intent was to cause mischief or endanger life then it might convict accordingly.

        2. Anonymous Coward
          Anonymous Coward

          Re: Freedom of speech dies

          First, trying to quote USA court cases to justify a definition of English law is a bit daft.

          Second, shouting "Fire" in a theater, whether or not one exists, causes a stampede win which people die. A Theater is dark and crowded. Even with light, people still get trampled when the crowd surges forward in panic. Intentionally creating a panic which endangers human life is illegal, and your claim that it should be is just pure idiocy.

          1. Androgynous Cupboard Silver badge

            Re: Freedom of speech dies

            I'm torn. Upvote for interesting factoid about the origin of the phrase "fire in a crowded theatre", or downvote for entirely missing the OP's point.

            You have free speech, but not freedom from the consequences of your speech.

            The law here recognises that fact and allows for speech to be limited if the judge deems the certain consequences too ghastly. The rights or wrongs of this particular decision are open to debate, of course, but personally I don't have a major problem with the principle.

          2. John Brown (no body) Silver badge

            Re: Freedom of speech dies

            "Second, shouting "Fire" in a theater, whether or not one exists, causes a stampede win which people die. A Theater is dark and crowded. Even with light, people still get trampled when the crowd surges forward in panic. Intentionally creating a panic which endangers human life is illegal, and your claim that it should be is just pure idiocy."

            I think he was trying to claim that the design of the theatre is faulty because it doesn't allow for a panicked mob to exit safely so the theatre owner is the one at fault, not the idiot shouting "FIRE" when there isn't one. Equally as stupid a claim IMO, but at least it's different to the usual one.

          3. Kaemaril#

            Re: Freedom of speech dies

            Christopher Hitchens once shouted "Fire!" in a theatre. It did not cause a stampede. He was not arrested for it. Nobody was harmed in any way.

            The actual quote was 'The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic', it never claimed that simply shouting 'Fire' in a theatre was illegal or in any way wrong.

            Not that it matters much as, as you point out, that's US law and not UK.

          4. scrubber

            Re: Freedom of speech dies

            Stampede? What theatres have you been to?

            The number of deaths from fire drills makes your point (0). Twat.

      2. DavCrav Silver badge

        Re: Freedom of speech dies

        "But how is that materially different from the old freedom of speech test of "shouting FIRE in a crowded theatre"?. All freedoms necessarily have some limits, when they start to impinge on other freedoms. Publishing information with the intention of hurting someone, or in cavalier disregard of the fact that it may cause injury, is surely foolish at the very least, and should be punished?"

        Here we can use the ubiquotous 'reasonable person' argument. Shouting "Fire!" in a theatre is likely to cause at least mild panic, even among reasonable people, but publishing cartoons or committing adultery, or disrespecting your husband, does not cause reasonable people to kill.

        There are plenty of situations in which it is reasonable to kill someone, but nearly all involve danger to life.

    2. Anonymous Coward
      Anonymous Coward

      Re: Freedom of speech dies

      this is the writing on the wall that came (and is demonstrated today) by claiming "terrorism" is merely any action that is used to "coerce" government, as the anti militia crowd is claiming in order to justify shoot-to-kill orders in Oregon...while being useful idiots and not realizing that same definition can and will be applied to Fergusen type riots and even Berkeley style sit ins.

      Both "sides" of the fence loving the "Law" when it fits their prejudice, not enough voices realizing that it doesn't matter *why* you let government off the leash, the government WILL turn on you when "your side" isn't in charge.

    3. Dan Paul

      Re: Freedom of speech dies

      You NEVER had any "Free Speech" to begin with in Britain. What little control over it you had was willingly ceded to another government.

      Sticks and stones!

  9. Anonymous Coward
    Anonymous Coward

    "Miranda claimed that the police acted unlawfully because the stop power was exercised for a purpose not permitted by the law, and that its use was in breach of the European Convention on Human Rights"

    So what the ruling found was that detention WAS permitted under the British law BUT that bit of the law is in breach of ECHR?

    1. Len Silver badge

      Which means that David Miranda should now go over their heads and take it up with the ECHR.

      1. Anonymous Coward
        Anonymous Coward

        The British government put the European Convention on Human Rights (ECHR) on the legislative books as Human Rights Act 1998 so that people didn't have to go to the European Court of Human Rights (ECHR)

    2. Lysenko

      detention WAS permitted under the British law BUT that bit of the law is in breach of ECHR

      Essentially, yes. This is the closest a UK Court can get to striking down a law. Given the principle of Parliamentary Supremacy no law can be "illegal" or "unconstitutional". Law is defined as whatever Parliament enacts and the Crown assents to (Liz 2 signs it).

      All a Court can do is rule that Parliament has enacted two incompatible things: in this case the Human Rights Act and the cited Terrorism Act. An appeal to the ECHR won't change anything for the plaintiff because ECHR rulings can't change or override UK law either.

      An incompatibility ruling notifies Parliament that it has two conflicting statutes on the books. It is up to Parliament to decide which one it wants to amend or repeal to fix that.

    3. ToddR

      BUT that bit of the law is in breach of ECHR?

      No, incompatible with not in breach of ECHR

      1. Yet Another Anonymous coward Silver badge

        There's a difference?

        My client didn't kill the victim, however the insertion of bullets into the victims head was "incompatible with life"

        1. Anonymous Coward
          Headmaster

          Splitting hairs

          manually inserted into a bodies orifaces (mouth) may not be incompaiple, possibly kinky, but not incompatible with life. Applying them via a gun is liable to be incompatible, when hitting some parts of the body. IOW say shoot not insert

      2. Lysenko

        A breach of the European Convention on Human Rights has no effect on UK law per se - it is an inter-governmental matter.

        The provisions of the ECHR were enacted into UK law by the Human Rights Act which derives its authority from Parliament, just like any other law. What the court was ruling on here was two of Parliament's own statutes being in conflict.

        Therefore the Crown is potentially in breach of the ECHR because Parliament has enacted incompatible legislation. The incompatibility causes the breach. There is no contradiction.

        [*] ECHR is a Council of Europe creation remember. Nothing to do with "European Law" originating from EU Directives.

  10. Anonymous Coward
    Anonymous Coward

    Government 1: Freedom 0...

    Masonic Handshakes all round.

    1. Anonymous Coward
      Anonymous Coward

      Re: Government 1: Freedom 0...

      Your confused... Society 1, Criminals 0

  11. Luke Worm
    Thumb Up

    Lawful and lawless

    OK, so the police is off the hook because they followed the law. But the government/parliament need to redo their work because the law is unlawful (is that a word?).

    1. Lysenko

      Re: Lawful and lawless

      The law is contradictory. It isn't a complicated concept.

      Your Boss (Parliament) has issued two sets of instructions that cannot both be applied at the same time. You need to go back to your Boss and ask him which one he wants to keep. Both instructions continue to exist until then and you would have a solid justification for obeying either of them.

      1. Adam 52 Silver badge

        Re: Lawful and lawless

        Look at the top of every piece of legislation. The bit where the minister responsible writes "I certify that this is in accordance with human rights" or some such.

        That's basically saying one of two things - either that the intention is not to breach Human Rights, in which case the Courts should interpret with that in mind, or that the minister is a lying toerag.

        1. Lysenko

          Re: Lawful and lawless

          Irrelevant. Ministers are representatives of the Executive branch (The Crown) not the Legislative branch (Parliament). A Minister can certify what his department interprets the law to mean. Only the Judicial Branch can issue a ruling regarding what the law actually is.

          Governments and Ministers don't make laws[1] or binding interpretations of law. Parliament makes law, Courts interpret law and the Government enforces law. A Ministerial declaration simply means that the department sees no incompatibility and it will instruct its agents (Police) accordingly. Statement of intent, not statement of fact.

          Therefore:

          >>the intention is not to breach Human Rights

          Correct.

          >>the Courts should interpret with that in mind

          They do. The intent of the Minister is relevant to the degree of culpability, however only the intent of Parliament is relevant to deciding what the law actually is[2]. Ministers are not agents of Parliament.

          >>or that the minister is a lying toerag

          Or he's just wrong. Losing in court doesn't automatically mean you're criminally culpable of intentionally disregarding the law (which is what lying would amount to).

          [1] Secondary legislation always exists under the authority of primary legislation from Parliament.

          [2] If it is absolutely clear that Parliament sees an incompatibility and legislates anyway then the conflicting statute can be considered implicitly repealed. That's an anti-pattern however.

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