You can never look too closely at legislation.
In the High Court today, before the judgment was handed down, it became clear from the discussions taking place between the lawyers on either side that the Metropolitan Police were not intending to return all of the material seized from David Miranda last Sunday. They’d return some, it seemed, but would retain some, too. It wasn’t clear to me on what basis they could claim to do this.
I’d been assuming – and in fact yesterday’s entire hearing in the High Court seemed to proceed on the assumption – that the “Miranda material” seized last Sunday under Schedule 7 of the Terrorism Act 2000 would have to be returned to David Miranda this weekend – by midnight at the end of Saturday in fact. As I wrote yesterday,
Jonathan Laidlaw QC … 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.
But I now realise I hadn’t been looking closely enough at the legislation, or thinking hard enough about it. It’s easily done. Schedule 7 paragraph 11(2) provides that
An examining officer may detain the thing—
(a) for the purpose of examination, for a period not exceeding seven days beginning with the day on which the detention commences,
(b) while he believes that it may be needed for use as evidence in criminal proceedings …
I said in my post yesterday, having looked at it again after the hearing, that this
suggests that in fact, Jonathan Laidlaw QC’s “finality” argument was misconceived, at least if it’s possible for criminal proceedings to be commenced in the next day or so. In any event, today’s order effectively scrubs out the power in paragraph 11(2)(b) as far as this case is concerned.
My thinking was this: for Laidlaw to have made the submission he did, he must have assumed the paragraph 11(2)(b) power was not available. This, presumably, was because there are no criminal proceedings and no current contemplation of their being commenced, for instance by an arrest. In those circumstances, you can’t yet form the “belief” that any of the material may be needed as evidence in any such proceedings, and the mere possibility of the material having evidential value one day is not enough. You might call this a “narrow” approach to paragraph 11(2)(b).
I said that paragraph had been effectively been “scrubbed out” because the police have now been ordered not to inspect the material for the purposes of criminal investigation, at least until next Friday evening; and, as I assumed yesterday (and as Jonathan Laidlaw seemed to be saying), the original material would be returned before that.
But today in court, as I wrote earlier,
Matthew Ryder QC asked for the reference to his apparent concession to be modified because it had he said, “in the heat of advocacy”, been based on a misunderstanding of Jonathan Laidlaw’s “finality” submission. He had understood this to be an argument that the police would have to return all the “Miranda material” this weekend. Apparently in discussions between counsel later, the police side made clear that their position was in fact that inspection of the original material would have to cease then, but that the material itself need not necessarily all be returned by Sunday.
In effect, therefore, it seems that two apparent concessions were withdrawn or clarified today: not just Matthew Ryder’s, but Jonathan Laidlaw’s about “finality”. The “finality” argument was apparently not what it seemed at the time.
Knowing this, and looking at paragraph 11(2)(b) again, I think the police must have decided to rely on a wide approach to the provision. When it says
An examining officer may detain the thing … while he believes that it may be needed for use as evidence in criminal proceedings
applying that wide approach it potentially means that he may do so for as long as he likes, even if he just thinks it’s a remote possibility that – one day – it may be needed as evidence.
To be fair to the police, we don’t know what material they propose to retain, or why, we don’t know what they’ve been able to look at, how much they were able to investigate before yesterday, and how imminent or remote any arrest may be as things stand.
Presumably the police’s legal thinking now is that they have power to detain the “Miranda material” beyond Saturday, even though they are restrained from using it in a criminal investigation, because they believe it may be needed as evidence in a criminal case. If the court decides either next Friday or in its judicial review judgment in October that the seizure was lawful, the police can then again use it for the purposes of criminal investigation.
As I say, you can’t look closely enough at legislation. No doubt the police have been looking at it closely too, and surely David Miranda’s lawyers will be thinking about this as well. I wonder what arguments will be made next Friday on the width of paragraph 11(2)(b).