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Article
SOURCE
http://www.theguardian.com/world/2016/jan/19/terrorism-act-incompatible-with-human-rights-court-rules-in-david-miranda-case
UK - Guardian Article - Terrorism Act 2000 - Schedule 7 para 2(1) vs. European Convention on Human Rights, Article 10 (freedom of expression)
Headline:
"Terrorism Act incompatible with human rights, court rules in David Miranda case"
"Appeal court says detention of Miranda was lawful but clause under which he was held is incompatible with European human rights convention"
Owen Bowcott Legal affairs correspondent
@owenbowcott
Wednesday 20 January 2016 00.02 AEDT
http://www.theguardian.com/world/2016/jan/19/terrorism-act-incompatible-with-human-rights-court-rules-in-david-miranda-case
IN SUMMARY
[per my understanding + links & extra info]
Terrorism Act 2000
aimed to detain & question travellers
where there is insufficient information to justify making arrest
60,000 per year = detained in such stops
/ from approx. 70-million transiting per year
/ abt. 164 such 'stops' per every 24 hours
Heathrow Airport - May 2014 info, Express.Co.UK:
Heathrow Airport operation costs: £975-million per year
Heathrow Airport upgrade costs: £660-million per year
Heathrow airport income: £2.3-billion per year
*income includes: landing charges, departure fees, shops, property rental, parking
Over 70 million passengers transit every year
six million more than the UK population
Heathrow third busiest airport in world, following:
Heathrow employs: 76,000 (equivalent to population Guildford, Surrey)
[comment: photo of Heathrow ... looks like my nightmare: crowds, foreigners & officials]
LINK | Source
http://www.express.co.uk/news/uk/475537/London-Heathrow-the-best-facts-stats-and-trivia-behind-the-UK-s-busiest-airport
Background:
David Miranda
-- domestic partner of journalist Glenn Greenwald
-- transit b/w Berlin & Rio de Janerio (via London)
-- The Guardian made his travel reservations & paid for trip
-- Miranda detained Heathrow airport 2013
-- carrying encrypted Snowden (US NSA whistleblower) files
-- "58,000 highly classified UK intelligence documents"
-- Berlin connection: Laura Poitras - recipient Snowden leaks
-- detained 9 hours
-- seized material included personal info
-- which would allow 'security staff' to be identified
-- incl. those depoloyed overseas
-- NOTE: to date, tiny proportion of Snowden material released
Laura Poitras - recipient Snowden leaks
"Poitras has received numerous awards for her work, including ... 2013 George Polk Award for "national security reporting" related to the NSA disclosures. The NSA reporting by Poitras, Glenn Greenwald, Ewen MacAskill, and Barton Gellman contributed to the 2014 Pulitzer Prize for Public Service awarded jointly to The Guardian and The Washington Post." (here)
"2013 Poitras was one of the initial three journalists to meet Edward Snowden in Hong Kong and to receive copies of the leaked NSA documents.
Poitras and journalist Glenn Greenwald are the only two people with full archives of the NSA, according to Greenwald." (here)
UK Court of Appeal ruling:
-- UK police entitled to detain Miranda
-- pursuant to the laws in place at the time
-- Police were within those laws
Court's only issue is:
para 2(1) of Schedule 7 (lack of safeguards re arbitrary exercise of stop power)
Terrorism Act 2000 - key clause incompatible w/ European Convention on Human Rights:
" ... stop power conferred by paragraph 2(1) of schedule 7 is incompatible with article 10 of the convention in relation to journalistic material in that it was not subject to adequate safeguards against its arbitrary exercise.” [The Guardian]
at issue:
-- disclosure of journalistic material
-- (whether source identified or not)
-- undermines confidentiality inherent in such material
therefore necessary to:
-- avoid 'chilling effect' re disclosure
-- protect Euro Convention on Human Rights: Article 10 rights [freedom of expression]
European Convention on Human Rights
Convention for the Protection of Human Rights
& Fundamental Freedoms
amended by provisions of Protocol No. 14 (CETS no. 194)
as of entry into force: 1 June 2010
*and reference to other amendments
European Court of Human Rights
Council of Europe
F-67075 Strasbourg cedex
www.echr.coe.int
Article 10, Freedom of Expression = page 7.
https://ec.europa.eu/digital-agenda/sites/digital-agenda/files/Convention_ENG.pdf
Schedule 7 - STOP POWER
-- permits questioning of travellers (to determine if terrorists)
-- no right to remain silent
-- no right to legal advice
-- travellers may be detained to 6 hours
Stop Power used re journalist info / material
incompatible w/ Article 10 Euro Convention on HR [freedom of expression]
b/c not 'prescribed by law'
[comment: not sure what he's getting at: 'prescribe' - established law, direction / to set down as rule, law, direction ... which law?
Must be referring to 'international law' ... but this isn't even binding / Russia has overridden provisions of international law to declare that national law has primacy]
According to Guardian, Judgment refers to protection of journalistic sources (ie expectation of confidentiality) & public interest factor:
“If journalists and their sources can have no expectation of confidentiality, they may decide against providing information on sensitive matters of public interest.”
DEFINITION of 'Terrorism' - Court of Appeal
Guardian reports:
court of appeal ruling rejects the broad definition of terrorism
court of appeal definition: 'terrorism' requires intent to cause a serious threat to public safety such as endangering life
Otherwise, detention of Miranda pursuant to schedule 7: lawful & proportionate & police actions to 'protect national security' supported by appeals court Judgment
what is at issue is that Schedule 7 did not provide sufficient protection re examination of journalistic material (as time of incident)
Stop power of police (ports & airports) not constrained by sufficient
legal safeguards to prevent arbitrary exercise of stop powers
Appeals court grants: 'certificate of incompatibility'
which handballs to UK PARLIAMENT
to decide how to provide a 'safeguard'
to prevent arbitrary use of STOP POWERS
-- likely via:
- 1. judicial means; or
- 2. other independent scrutiny
*in a way to protect confidentiality in the material
Says John Dyson, master of rolls, appeal court Judgment
'Lord' = courtesy title bestowed on all justices of Supreme court (here)
Court judges in appeal court decision:
- Lord Dyson - most senior civil judge, England & Wales
- Lord Justice Richards
- Lord Justice Floyd
Legal challenges re Miranda sponsored by:
1. First legal challenge: The Guardian
Result: x3 high court judges dismissed the initial challenge (2014)
on grounds of: "legitimate and “very pressing” interests of national security." [Guardian]
2. Second legal challenge - Court of Appeal:
First Look Media, publisher Intercept online magazine
First Look Media = owner: Pierre Omidyar, eBay founder
Pierre Omidyar, eBay founder
Omidyar & wife = frequent flyer Obama White House visitor
to senior officials & members of Obama National Security Council
2011-2013, Omidyar Network co-funded with USAID regime-change groups in Ukraine that organized the 2014 Maidan revolution.
Omidyar is the chairman of eBay/PayPal, which boasts of its own private global police force that works “hand in glove with law enforcement agencies," including the DEA
Meet Pierre Omidyar! A handy primer for new First Look hires
By Mark Ames | February 28, 2015
LINK: | here
The Guardian quotes:
The Liberal Democrat home affairs spokesman, Alistair Carmichael MP, said:
“The Terrorism Act should be used in dealing with terrorists, not for journalists or whistleblowers. The ruling recognises the important role journalists play in holding government to account and shining a light on a range of issues.”
SOURCE
http://www.theguardian.com/world/2016/jan/19/terrorism-act-incompatible-with-human-rights-court-rules-in-david-miranda-case
READER COMMENTS - THE GUARDIAN
Found these either interesting or amusing ... thought the 'Nazis' comment was quite funny:
--- exhypothesi
1d ago
Actually, it is not a victory for David Miranda. He lost his case. Section 4(6)(a) and (b) Human Rights Act 1998 makes it clear that the declaration of incompatibility with a Convention Right made by the court under Section 4(2) thereof does not (a), affect the validity, continuing operation of enforcement of the provision in respect of which [a declaration of incompatibility] is given and, (b), is not binding on the parties to the proceedings in which it is made.
In other words, the impugned para 2(1) Sch 7 Terrorism Act 2000 remains valid and enforceable until such time as the Act of 2000 is amended by Parliament which has delegated to the Home Secretary the power to amend it using the fast-track procedure under section 10(2) of the 1998 Act by issuing the appropriate statutory instrument. That will depend upon whether or not the government intends to appeal the judgment to the Supreme Court which could take anything up to 12 months.
In short, notwithstanding the declaration, If, tomorrow, a journalist is stopped at Heathrow or any other port of entry into the United Kingdom, the authorities are well within their rights to deploy para 2(1) of Sch 7, and that will remain the case unless and until the Home Secretary makes the appropriate order amending it.
--- exhypothesi RBHoughton
20h ago
Even if the Supreme Court were to uphold the judgment of the Court of Appeal in Miranda, it has no power to strike down the impugned section. It remains extant until struck out by executive amendment. The Home Secretary is perfectly within her rights to ignore the judgment altogether and to allow Sch 7 to stand unamended. Much will depend on whether and to what extent the prospect of its executive repeal makes the Prime Minister as physically ill as he was after the judgment of the ECHR in the case of Hurst v United Kingdom (votes for prisoners).
// vindicate - uphold, defend / rare: to claim
--- 'exhypothesi Zabka'
23h ago
No, the Tories are evil and devious but they are not stupid. They are not going to leave the Council of Europe. That would cause unquantifiable damage to the Kingdom's international reputation, They are simply going to do what Tories do best by retaining substantive rights but make them worthless. If an individual believes he is possessed of a right, then that is as good as the real thing until he or she finds it impossible to vindicate in practice.
It is a tried and trusted method of constructive destruction which operates effectively throughout much of our jurisprudence.
--- stepsbackinamazement
1d ago
Has anyone actually read the judgement - I have. He lost his appeal on virtually all points (invasion of privacy, unlawful detention etc.) except for the very narrow technical point relating to the lack of safeguards for examining of 'journalistic material' in Sch. 7 which can be easily put right if they would even be bothered (it can be examined under other provisions). So the guardian's reporting of this as a 'landmark victory' is absurd as well as basically dishonest. It was quite clearly a resounding victory for the Government and another substantial loss for Miranda and his supporters. Can we trust any media outlet to report impartially these days??? The Court of Appeal most emphatically did NOT declare that the Terrorism Act is incompatible with the ECHR, quite the opposite.
--- Valedictorian
1d ago
Security services brutally cause minor inconvenience to Greenbergs boyfriend's travel arrangements because he is carrying classified documents stolen from the state.
It's the Nazis all over again!
--- GodfreyRich Valedictorian
1d ago
Rather over-the-top statement. The judge said that the detention was 'lawful'.
"Miranda was carrying encrypted files, including an external hard drive containing 58,000 highly classified UK intelligence documents"
Seems to me the security service was doing the right thing.
--- Vizzeh
1d ago
You know we have an Orwellian law when freedom & whistle blowers are suppressed under terrorism.
This is Bolshevik communism all over again.
--- HellisEmpty Vizzeh
1d ago
"This is Bolshevik communism all over again"
Minus the mass killings, gulags, and torture. Get some perspective please.
--- Vizzeh HellisEmpty
1d ago
Semantics.
We certainly have similar Plutocracy/Oligharchy.
--- Kevin Schmidt HellisEmpty
1d ago
Yeah! Some perspective says it's really a kinder, gentler fascism.
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COMMENT
Just as interesting reading the reader comments as it is the article itself. I love comments.
Not sure what to think. It doesn't sound like much of a win, and at the end of the day the government writes the rules ... and will write rules in its favour, I guess.
The comment where the powers that be give the great unwashed the impression of having rights, while ensuring they gear things up so such rights can be denied, is really cool. I'm guessing that's how things stand ... lol.
Find it extremely hard to buy the credibility of the following crew: Snowden, Greenwald, Guardian, Germany, Poitras, Pierre Omidyar (eBay / Paypal / USAID & White House, First Look - Intercept ).
Sounds like a big CIA or Mossad psyop to me ... especially with US-serving totalitarian Stasi Germany in the mix as the 'safe' port of call for US 'dissidents' ... LMAO.
While all these American and mainstream media sources are untouchable and receiving accolades for what is purported to be 'NSA reporting,' WikiLeaks publisher, Australian journalist, Julian Assange, is the target of US & allied political persecution (including five (5) years detention WITHOUT CHARGE) and the subject of a US grand jury sealed indictment (confirmed January 2011).
As such, Assange can expect US extradition, CIA torture, a potential death penalty sentence (or the rest of his life in prison), for 'espionage' (ie journalism redefined by the US as 'espionage' and American legal jurisdiction defined as stretching all over the globe).
Something's not right here.
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