Tuesday, 20 August 2013

Miranda 2 ~ The Code of Practice

David Miranda's detention (Previous Post) for 9 hours under Schedule 7 of the Terrorism Act 2000 prompted a huge outcry over 'gross misuse' of terror laws - The Guardian 19th August.   This post takes a look at the Examining Officers Code of Practice and also some amendments to the law which are already under consideration by Parliament.

So far, there appears to have been no official statement from the authorities about the circumstances leading to Miranda's detention though The Guardian notes that:

The Metropolitan police said Miranda had been lawfully detained under the Terrorism Act and later released. "Holding and properly using intelligence gained from such stops is a key part of fighting crime, pursuing offenders and protecting the public," it said in a statement.

Jack of Kent has set out a strong argument that the detention may have been unlawful.  At this stage, it is not actually possible to say in the absence of knowledge about the reasons behind the decision to detain Miranda and the actual interview to which he was subjected.

Schedule 7 does not require
reasonable suspicion and the only requirement appears to be that the detention must be for the purpose of determining whether he appears to be a person falling within section 40(1)(b).  On that basis, anyone travelling could be subjected to this power because all the authorities need say is - 'We wanted to see if he or she came within section 40(1)(b).'   Of course, the Act is concerned with 'terrorism' and one might expect the authorities to have some reason connected to investigation of terrorism for detaining a particular individual even if, in the strict letter of the law, they do not need any suspicion that the person detained is actually within section 40(1)(b).

This is, in fact, the case since Examining Officers are supposed to operate within the Code of Practice -  Examining Officers under the Terrorism Act 2000.

Code of Practice:

Examining officers are told to take into account that many people selected for examination under Schedule 7 will be 'entirely innocent' of any unlawful activity.  The powers must be used proportionately, reasonably, with respect and without unlawful discrimination

Selection of persons for examination must not be solely based on their perceived ethnic background or religion.

Powers must be exercised without discrimination on grounds of age, race, colour, religion, creed, gender or sexual orientation.  To do so would be unlawful.

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 UK.  When deciding whether to exercise their powers, examining officers should base their decisions on a number of considerations including factors such as known and suspected sources of terrorism; individuals or groups whose current or past involvement in acts or threats of terrorism is known or suspected; any information on the origins and/or location of terrorist groups; possible current, emerging and future terrorist activity; the means of travel that a group or individuals involved in terrorist activity could use; emerging local trends or patterns of travel through specific ports.

 Schedule 7 powers are to be used solely for the the purpose of ascertaining if the person examined is or has been concerned in the commission, preparation or instigation of acts of terrorism.  The powers must not be used to stop and question persons for any other purpose.  An examination must cease and the examinee must be informed that it has ended once is has been ascertained that the person does not appear to be or to have been concerned in the commission, preparation or instigation of acts of terrorism.


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