Judgment Approved by the court for handing down.
Miranda v SSHD
206610. Det Supt Stokley says that the officers were only aware of the information
in the PCS document, as is a standard practice for such stops. The examining officers
are not told and do not know anything about the intelligence behind the stop, so as to
introduce a firewall between the intelligence behind the stop and the examination “to
prevent any unwitting disclosures to the subject of the examination” (para 32 of his
first witness statement).
20.
The officers detained Mr Miranda for nine hours, which was the maximum period
permitted by para 6(4) of Schedule 7 at the time (this maximum has since been
reduced to six hours) and they questioned him. DI Woodford was with them to meet
the aircraft at the gate. Mr Miranda’s hand luggage was examined, and items retained
which as I have said included encrypted storage devices. Mr Oliver Robbins, Deputy
National Security Adviser for Intelligence, Security and Resilience in the Cabinet
Office, says in his first witness statement (para 6) that the encrypted data contained in
the external hard drive taken from Mr Miranda contains approximately 58,000 highly
classified UK intelligence documents. Many are classified SECRET or TOP
SECRET. Mr Robbins states that release or compromise of such data would be likely
to cause very great damage to security interests and possible loss of life. It is said by
the defendants to be of significance that Mr Miranda did not claim to be a journalist or
a lawyer; nor did he claim that any material that he was carrying was journalistic
material or subject to legal professional privilege.
THE PROCEEDINGS
21.
In judicial review proceedings issued on 21 August 2013, Mr Miranda claims that the
use of the Schedule 7 power against him on 18 August 2013 was unlawful because (i)
the power was exercised for a purpose not permitted by the statute; and (ii) its use
constituted a disproportionate interference with his rights under article 5, 8 and 10 of
the Convention. He also claims that the use of the power is incompatible with the
rights guaranteed by article 10 of the Convention, at any rate in relation to journalistic
material.
SUMMARY OF THE JUDGMENT OF THE DIVISIONAL COURT
22.
The Divisional Court decided that (i) the power was exercised for a purpose permitted
by the statute; (ii) its use was not a disproportionate interference with articles 5, 8 or
10 of the Convention; and (iii) the use of the power was compatible with article 10 of
the Convention.
THE GROUNDS OF APPEAL
23.
Mr Ryder QC has raised five grounds of appeal. Ground 1 is that the court erred in
determining the purpose of the examining officers who conducted the stop by
reference to information and judgments made by other persons, namely the Security
Service. Ground 2 is that the court erred in assessing the dominant purpose for which
the Schedule 7 power was in fact used. Ground 3 is that the court adopted a flawed
approach to the question of proportionality, by failing to consider whether there was
evidence of any actual risk to public safety that justified the use of the Schedule 7
power to seize journalistic material. Ground 4 (which is a subset of ground 3) is that
the court erred in its assessment of proportionality in concluding that the use of
Schedule 5 to TACT would not have been possible or practical. Ground 5 is that the
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