David Miranda has retained Bindmans LLP, an intimidating firm of UK lawyers, to send a letter to the British government regarding his nine-hour detention in Heathrow and the confiscation of his electronics and data, apparently in a misguided attempt to intimidate the journalist Glenn Greenwald. It's quite a remarkable letter, demanding the return of Miranda's goods, a full accounting as to what has happened to his data, and a declaration that his search was unlawful.
8. By way of remedy, we seek a quashing order, and a declaration that the decisions to detain our client, question him under pain of criminal sanction, and seize his property under Schedule 7 were wholly unlawful. We will also seek a mandatory order that all data seized and all copies be destroyed, and recalled if transferred to third parties. We will argue that the decisions were unlawful for the following reasons:
i. The Schedule 7 powers were utilised in relation to our client who was merely in transit in the UK. The Defendant is required to justify the use of Schedule 7 powers in relation to a person in such circumstances.
ii. The decision to detain and question our client and to seize his property pursuant to the powers in Schedule 7 amounted to a frustration of the legislative policy and objects of the Terrorism Act 2000 Schedule 7 power and/or was for an improper purpose, and was therefore unlawful.
iii. The decisions to use Schedule 7 powers in our client's case amounted to a grave and manifestly disproportionate interference with the Claimant's rights under Articles 5,6,8 and 10 ECHR.
iv. Further, or alternatively the powers under Schedule 7 are incompatible with Articles 5,6,8 and 10 ECHR.
9. Given the urgency of the matter, this letter is sent to outline our grounds and put the Defendants on notice of the claim. However, as further details emerge, we reserve the right to amend our grounds.
10. We are aware that there are a number of cases in which Schedule 7 powers are in the process of being challenged. However, the use of Schedule 7 powers in relation to our client in order to obtain access to journalistic material is of exceptional and grave concern.
11. We hope that the misuse of this power in these circumstances will be clear, and that we can reach agreement on the legality of our client's search, given the facts of the case. However, insofar as our client's claim also makes a wider challenge to the compatibility of Schedule 7 with fundamental rights and seeks declaratory relief, it appears to us that this will require Parliamentary action if the court agrees with the Claimant. Therefore, it will be incumbent upon us to issue proceedings, in any event.
For that reason, we consider it appropriate to abridge the time of service for the detailed protocol response to 7 days. If you disagree, please let us know by return and set out your proposed timetable. We stress, however, that we seek the undertakings set out above on a more urgent timetable.