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David Miranda Legal Letter to Home Office Re: Heathrow Detention

David Miranda Legal Letter to Home Office Re: Heathrow Detention

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Regulated by theSolicitorsRegulationAuthority
SecialistFraud Panel
Contracted withthe Legal Aid  Agency 
Bindmans LLP
236 Gray’s Inn Road London WC1X 8HBDX 37904 King’s Cross Telephone 020 7833 4433 Fax 020 7837 9792www.bindmans.cominfo@bindmans.com 
Bindmans LLP is a limited liability partnership registered in England and Wales under number OC335189. Its registered office is asset out above. The term partner means either a member of the LLP or a person with equivalent status and qualification.
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Port Reference: T5-A-0188-13 Direct fax: +44 (0)20 7837 9792Our Ref: Miranda KAG.GGM Direct email: g.morgan@bindmans.comDate: 20 August 2013
FAO: Secretary of State for the Home Office2 Marsham StreetLondonSW1P 4DFFirst by fax
 CC. The Treasury Solicitor CC – Commissioner of Police of the Metropolis
**Letter sent under CPR 54 Pre-action Protocol for Judicial Review –Response Requested by 12pm today - full response by 27 August 2013 **
Dear Sirs
Proposed Claimant: Mr David Michael Dos Santos Miranda (dob:10.05.85)Proposed Defendants: Secretary of State for the Home Department andCommissioner of Police of the MetropolisHome Office - Port Reference: T5-A-0188-13
We write to inform you that we intend to challenge our client’sdetention under Schedule 7 Terrorism Act 2000 at Heathrow airporton 18 August 2013, and the consequent unlawful taking and retentionof his property including sensitive journalistic materials.2.
We have set out our proposed grounds of claim below. The purpose of this letter is to comply with the CPR 54 Judicial Review Pre-ActionProtocol. We also want to give the Defendants an opportunity toreconsider their position and respond in a way that either makes theproposed claim unnecessary, or narrows what is in dispute, or at leastmakes their position clearer.3.
In terms of the timing of any proceedings which may be necessary, werequire immediate undertakings, set out below, to prevent anyfurther harm caused by the Defendants’ actions whilst the legality of the seizure of his property is in the process of being determined. If undertakings in the following terms are not provided by 12pm on 20August, we will be left with no option but to seek urgent interiminjunctive relief in the High Court and seek costs on an indemnitybasis.4.
We ask that the Secretary of State and the Commissioner of Police of the Metropolis undertake that there will be no inspection, copying,
disclosure, transfer, distribution or interference, in any way, with ourclient’s data which was seized pursuant to Schedule 7, pendingdetermination of our client’s claim.5.
If there has already been inspection, copying, disclosure, transfer,distribution or other interference with that data we requireundertakings that the product of that inspection or interference willnot be disclosed, shared or used further in any way, and will be keptsecure pending the outcome of our client’s challenge to the legalityof the seizure of that data.6.
If any other public authority or third party – either domestic orforeign - has been granted possession or access to that data (or copiesof it) we require you to provide similar undertakings from each of those parties if you are in a position to do so. Further, oralternatively, we require immediate disclosure by you of the identityof those parties to whom such access or disclosure has already beengiven so that we may obtain similar undertakings from them directly.7.
Our client’s electronic equipment, including his mobile phone, laptop,memory sticks, smart-watch, DVDs and games consoles wereconfiscated. In addition to the undertaking’s outlined above, wewould ask that the property be returned within 7 days of their beingtaken, and no later than 25 August, as set down in paragraph 11(2) of Schedule 7.8.
By way of remedy, we seek a quashing order, and a declaration thatthe decisions to detain our client, question him under pain of criminalsanction, and seize his property under Schedule 7 were whollyunlawful. We will also seek a mandatory order that all data seizedand all copies be destroyed, and recalled if transferred to thirdparties. We will argue that the decisions were unlawful for thefollowing reasons:i.
The Schedule 7 powers were utilised in relation to ourclient who was merely in transit in the UK. TheDefendant is required to justify the use of Schedule 7powers in relation to a person in such circumstances.ii.
The decision to detain and question our client and toseize his property pursuant to the powers in Schedule 7amounted to a frustration of the legislative policy andobjects of the Terrorism Act 2000 Schedule 7 powerand/or was for an improper purpose, and was thereforeunlawful.iii.
The decisions to use Schedule 7 powers in our client’scase amounted to a grave and manifestlydisproportionate interference with the Claimant’srights under Articles 5,6,8 and 10 ECHR.iv.
Further, or alternatively the powers under Schedule 7are incompatible with Articles 5,6,8 and 10 ECHR.
Given the urgency of the matter, this letter is sent to outline ourgrounds and put the Defendants on notice of the claim. However, asfurther details emerge, we reserve the right to amend our grounds.10.
We are aware that there are a number of cases in which Schedule 7powers are in the process of being challenged. However, the use of Schedule 7 powers in relation to our client in order to obtain accessto journalistic material is of exceptional and grave concern.11.
We hope that the misuse of this power in these circumstances will beclear, and that we can reach agreement on the legality of our client’ssearch, given the facts of the case. However, insofar as our client’sclaim also makes a wider challenge to the compatibility of Schedule 7with fundamental rights and seeks declaratory relief, it appears to usthat this will require Parliamentary action if the court agrees with theClaimant. Therefore, it will be incumbent upon us to issueproceedings, in any event. For that reason, we consider itappropriate to abridge the time of service for the detailed protocolresponse to
7 days
. If you disagree, please let us know by return andset out your proposed timetable. We stress, however, that we seekthe undertakings set out above on a more urgent timetable.12.
We would be grateful if you would respond to this letter in line withthe pre-action protocol for judicial review by close of business on 27August.
Factual Background
Our client, Mr David Miranda, is a Brazilian citizen. He is in a longterm relationship with Mr Glenn Greenwald a journalist, who haswritten a series of stories for the Guardian including articles relatingto mass surveillance programmes by the US and UK governmentagencies.14.
Our client assists Mr Greenwald in his legitimate journalistic work andwas doing so when he was detained, pursuant to Schedule 7 powers.15.
At that time, our client was travelling from Berlin to the couple’shome in Rio di Janeiro via Heathrow airport on 18 August 2013. Duringhis trip to Berlin, he visited Laura Poitras, a film-maker who has beenworking with Mr Greenwald. The Guardian paid for our client’s flightsbecause of the work he was doing with Mr Greenwald.16.
At 8.05am our client was detained, shortly after he had begunchanging flights and was in transit at Heathrow airport.17.
Guardian News contacted Kate Goold, Associate in this firm’s crimeteam. She arranged for Mr Gavin Kendall to represent Mr Miranda.18.
After multiple efforts to make contact with our client through aninitial telephone call, Mr Kendall attended in person as he was givenno telephone access to our client.

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