6 Nov 2013

David Miranda battles detention laws – while victory is won elsewhere

A host of personnel from counter-terrorism police, MI5 and the Home Office, squeezed into court 28 in the Royal Courts of Justice on Wednesday, alongside lawyers and journalists.

They were there for what has become the torch-bearing case of David Miranda (partner of Guardian journalist Glenn Greenwald) in challenging the powers to detain and question anyone at a British port of entry on anti terrorism grounds.

They are known as schedule 7 powers and they are wide ranging.

His lawyers argued on Wednesday that his nine-hour detention at Heathrow in the summer, was unlawful.

But while all eyes were on the main event, down the corridor in the Royal Courts of Justice, a small victory took place over those schedule 7 powers for someone of considerably less high profile.

His name is Abdelrazg Elosta and Mr Justice Bean ruled that he was unlawfully denied the right to have a lawyer present during questioning.

Mr Elosta was returning from Hajj in Saudi Arabia in November 2012. He was detained at the immigration desk and allowed to call his lawyer in Birmingham, but then told questioning would begin before the lawyer arrived, and a refusal to answer could lead to his arrest.

Law Society victory

The judge ruled that even under schedule 7 the officers had no power to deny him the right to have his lawyer present.

So victory for the Law Society, which had its eye on the principles in this case.

It’s Chief Executive Desmond Hudson said: “The presence of solicitors provides a fundamental safeguard to detainees and this ruling has clarified that in principle, there is no sound reason why questioning of a detainee should not be delayed pending the arrival of a solicitor who can advise on what questions they are obliged to answer and explain the legal implications of refusing to do so.“

According to David Anderson QC, the independent reviewer of terrorism legislation, over 61,000 travellers were examined under schedule 7 powers on arrival at UK ports in 2012/13. Most were questioned for at the most a few minutes.

In only 2,277 cases did this examination last over an hour; and the detention power was exercised in only 670 cases. A tiny number perhaps…

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