Judgment Approved by the court for handing down.
Miranda v SSHD
disclosure of the identity of journalistic sources, the interference was “prescribed by
law”.
106.
In my view, it would be wrong to make too much of this decision of one Section of
the ECtHR, particularly since the Government was aware of the journalist’s source. It
is, however, worth noting that at para 101, the court said:
“The Court considers that any search involving the seizure of
data storage devices such as laptops, external hard drives,
memory cards and flash drives belonging to a journalist raises a
question of the journalist’s freedom of expression including
source protection and that the access to the information
contained therein must be protected by sufficient and adequate
safeguards against abuse. In the present case, although the
investigating judge’s involvement in an immediate post factum
review was provided for in the law, the Court finds that the
investigating judge failed to establish that the interests of the
investigation in securing evidence were sufficient to override
the public interest in the journalist’s freedom of expression,
including source protection and protection against the handover
of the research material. ”
107.
It seems to me that the use twice of the word “including” in this paragraph suggests
that protection of a journalist’s sources is no more than one aspect of a journalist’s
freedom of expression, albeit a very important one. I can see no reason in principle
for drawing a distinction between disclosure of journalistic material simpliciter and
disclosure of journalistic material which may identify a confidential source.
108.
It is against this background that I turn to consider the reasons given by Laws LJ for
concluding that, notwithstanding the lack of a requirement of judicial or other
independent and impartial oversight, Schedule 7 is compatible with article 10. The
first broad reason he gave was based on the reasoning of the Divisional Court in
Beghal. That reasoning has since been superseded by that of the Supreme Court.
Lord Hughes explained at para 43 why he considered that, in the case of port
questioning and search powers, there were sufficient effective safeguards in the
manner of operation to meet the requirement that the interference with the article 5
and 8 rights were “in accordance with the law”. The safeguards included:
“(i) the restriction to those passing into and out of the country;
(ii) the restriction to the statutory purpose;
(iii) the restriction to specially trained and accredited police
officers;
(iv) the restrictions on the duration of questioning;
(v) the restrictions on the type of search;
(vi) the requirement to give explanatory notice to those
questioned, including procedure for complaint;
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