David Miranda v UK Home Secretary: today’s hearing. Of course the Govt gets what it wants. [View all]

[Catherina]

Miranda v Home Secretary: today’s hearing and order

by Carl Gardner on August 22, 2013

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The court has ordered that until a further hearing next Friday, August 30th, the government and the police may not inspect, copy, disclose, transfer, distribute (whether domestically within the UK or to any foreign government or agency) or otherwise interfere with the material obtained from David Miranda under Schedule 7 of the Terrorism Act 2000, save (1) for the purposes of protecting national security, including protecting lives and preventing the diminution of the UK’s national security capability; and (2) for the purposes of investigating whether David Miranda is or has been concerned in the commission, preparation or instigation of acts of terrorism.

David Miranda’s solicitor today called that a “partial victory” – but if it is in any sense a victory, it’s only a small one. I’m not surprised she mentioned the possibility of appeal. In truth the government has got most of what it wanted, and has preserved its ability to inspect the material, to copy it and to share it with American intelligence agencies, so long as it’s acting “to protect national security”. The ability to use the material to prevent “the diminution of national security capability” also seems a very wide power to use the material to protect GCHQ’s policy aims and interests.

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Steven Kovats QC, representing the Home Secretary, told the court that the material had already been inspected and that continuing inspection was needed. He accepted there was currently no evidence before the court supporting the “national security case” behind that claim, but said the government would be producing evidence as soon as possible, and that the balance of justice required it be given a chance to do so before an order is made preventing inspection. He disputed the contention that what was seized was “journalistic material” and argued that David Miranda can have no right to confidentiality in what he called stolen documents.

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Jonathan Laidlaw QC, for the police, told the court that the material already inspected consisted of tens of thousand of pages, the disclosure of at least some of which would be “gravely injurious to public safety”. He argued that stopping inspection now would in effect be “final”, since it must be returned this weekend: there is no power to extend the 7 day examination period under Schedule 7, he said. He opposed any order narrowing the purposes of inspection – he said there was risk in doing so before the police had been able to examine all the material.

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The police and government have lost the ability to inspect this material for criminal investigation purposes outside whatever’s necessary to determine whether David Miranda is concerned in “terrorism” within the meaning of the 2000 Act; and (interestingly without any argument in court today) they seem to have lost the ability to retain David Miranda’s things beyond the weekend if there are criminal proceedings. But they have most of what they wanted, and David Miranda got very little, really.

Had no injunction been sought and no undertakings been given, the “Miranda material” could have been inspected until Saturday night for the statutory purpose for which it was kept. It still can be, after today’s hearing. It can also be copied and shared with foreign agencies for national security purposes (with no apparent need to seek assurances about their use of copies of the material), and it seems any copy can continue to be worked on after the original material is returned. In some ways the government might even feel its powers to work on the material seem wider tonight then they did this morning.

http://www.headoflegal.com/2013/08/22/miranda-v-home-secretary-todays-hearing-and-order/