Judgment Approved by the court for handing down.
Miranda v SSHD
Divisional Court’s conclusion on proportionality
77.
Laws LJ concluded that the Schedule 7 stop of Mr Miranda was a proportionate
measure in all the circumstances. He summarised his view as follows:
“72. How do these considerations bear on the present case? The
claimant was not a journalist; the stolen GCHQ intelligence
material he was carrying was not “journalistic material”, or if it
was, only in the weakest sense. But he was acting in support of
Mr Greenwald’s activities as a journalist. I accept that the
Schedule 7 stop constituted an indirect interference with press
freedom, though no such interference was asserted by the
claimant at the time. In my judgment, however, it is shown by
compelling evidence to have been justified. I have described
the testimony of Mr Robbins and DS Goode (and DS Stokley).
There is no reason to doubt any of it. In contrast, (1) the
evidence of the claimant and Mr Greenwald is unhelpful, to the
extent I have explained. (2) There is no question of a source
being revealed; though I accept there is some force in the
Article 19 Interveners’ submission (paragraph 17) as to “the
potential discouragement of future journalistic sources who
may not elect to waive their anonymity”. (3) The fact that the
material was stolen, though it does not exclude the law’s
intervention to protect free speech, goes in the scales in favour
of the defendants. ”
73. In my judgment the Schedule 7 stop was a proportionate
measure in the circumstances. Its objective was not only
legitimate, but very pressing. The demands of journalistic free
expression were qualified in the ways I have explained. In a
press freedom case, the fourth requirement in the catalogue of
proportionality involves as I have said the striking of a balance
between two aspects of the public interest: press freedom itself
on one hand, and on the other whatever is sought to justify the
interference: here national security. On the facts of this case,
the balance is plainly in favour of the latter.”
Mr Ryder’s arguments on proportionality
78.
Mr Ryder submits that Laws LJ erred in finding that there was “compelling evidence”
of a serious risk of harm to the public or national security arising from Mr Miranda
being in possession of the material in question. He says that the evidence of the
defendants’ witnesses indicated no more than a “theoretical” risk that would arise
only if key parts of the data (for example, the identity of individual agents),
potentially possessed by Mr Miranda, were released into the public domain. He
submits that there was no evidence to suggest that Mr Miranda or anyone else
associated with him would release data of that kind into the public domain. As
regards the “jigsaw” point mentioned at para 58 of the judgment of Laws LJ, the two
examining officers had no knowledge themselves of any of the information that could
form part of the “jigsaw”. In short, all that was presented to the court was a
theoretical risk. The crucial evidence that would have indicated the extent to which
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