Judgment Approved by the court for handing down.
Miranda v SSHD
established in our law. As Lord Sumption said in Bank Mellat v Her Majesty’s
Treasury (No 2) [2014] AC 700, [2013] UKSC 39 at para 20:
“… [T]he question depends on an exacting analysis of the
factual case advanced in defence of the measure, in order to
determine (i) whether its objective is sufficiently important to
justify the limitation of a fundamental right; (ii) whether it is
rationally connected to that objective; (iii) whether a less
intrusive measure could have been used; and (iv) whether,
having regard to these matters and the severity of the
consequences, a fair balance has been struck between the rights
of the individual and the interests of the community.”
60.
The issue raised by the third ground of appeal is whether the Divisional Court adopted
a flawed approach to the fourth limb of the test for proportionality. In short, Mr
Ryder submits that Laws LJ erred in considering that there was evidence that
demonstrated that a fair balance had been struck between Mr Miranda’s article 10
rights (derived from his involvement in journalistic activity) and the wider security
interests of the community.
61.
An assessment of the proportionality of a decision to exercise the stop power is factsensitive. It is necessary to have regard to the interests of the person who is to be
stopped on the basis of the facts as they were or ought to have been known to those
who exercised the power. Against those interests there must be weighed (on the facts
of this case) the national security interests of the community. At the heart of Mr
Miranda’s case is the submission that the material that he was carrying was
“journalistic material” whose publication engaged article 10 of the Convention. It is
common ground that, for present purposes, “journalistic material” is to be taken to
mean “material acquired or created for the purposes of journalism”: see the definition
in section 13(1) of the Police and Criminal Evidence Act 1984 (“PACE”).
Is the balancing exercise to be conducted on the basis that the material was journalistic
material?
62.
Mr Kovats and Mr Beer QC submit that, if those who authorised and conducted the
port stop did not know (and could not reasonably have been expected to know) that
Mr Miranda was in possession of journalistic material, then the proportionality of the
decision to conduct the stop cannot be assessed on the basis that he was carrying such
material. This is reflected in the Grand Chamber decision of the ECtHR in
Pentikainen v Finland (App no 11882/10, judgment of 20 October 2015). In that
case, the applicant (a journalist) was sent by his employer (a weekly magazine) to
take photographs of a demonstration and to write a report for the magazine. He was
apprehended and detained by the police. He was later charged and found guilty by the
domestic courts of disobeying the police. He complained that this was in breach of
his article 10 rights. It was held by the court that there had been an interference with
his article 10 rights. The real issue was whether the interference was proportionate to
the legitimate aims pursued. In relation to his apprehension, the court said at para 95:
“…the Court will pay attention to whether the police orders
were based on a reasonable assessment of the facts and whether
the applicant was able to report on the demonstration. It will
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