Judgment Approved by the court for handing down.
Miranda v SSHD
Schedule 7 power is not compatible with article 10 of the Convention because it is not
“prescribed by law” as required by article 10(2).
24.
The fact that the material was said to be journalistic material lies at the heart of the
third, fourth and fifth grounds of appeal. It is the reason why the Interveners sought
and were granted permission to intervene in the proceedings.
THE FIRST AND SECOND GROUNDS OF APPEAL
What was the purpose of the stop?
25.
It seems to me to be logical to start with the question of what the purpose of the stop
was before deciding whether a stop conducted for that purpose was permitted by
Schedule 7.
26.
Laws LJ considered the purpose for which the Schedule 7 power was used at paras 17
to 27 of his judgment. He said that this was a question of fact. That is plainly right.
He also said that, where there is or may be more than one purpose, the correct test is
to determine the “true and dominant” purpose, even though some secondary or
incidental advantage may be gained for some purpose which is outside the authorised
purpose: see R v Southwark Crown Court, ex p Bowles [1998] AC 641, [1998] UKHL
16. He said that the purpose to be considered was the purpose for which the
examining officers executed the stop. I believe none of this to be controversial. He
then said:
“21. [I]n deciding whether the statutory purpose is made out I
do not think the court is limited to a consideration of the
examining officers’ subjective state of mind. Given the context
– the possible apprehension of terrorism – Parliament must
have enacted Schedule 7 in the knowledge that there might be
very good reasons why the examining officers (who might, as
here, be junior in rank) should not be privy to the whole story.
This is of a piece with D/Supt Stokley’s reference at paragraph
39 of his witness statement to “a firewall between the
intelligence case and the examination, to prevent any unwitting
disclosures to the subject of the examination”. It is noteworthy
that by force of paragraph 2(4) of Schedule 7 an examining
officer is not required to have any “grounds for suspecting that
a person falls within section 40(1)(b)”. Nor does Schedule 7
provide that an examining officer must be the one to determine
whether the subject appears to fall within that subsection. It
may well be someone else, to whom the results of the stop are
referred.
22. In a case like this the primary evidence for the
determination of the stop’s purpose is likely to be the terms of
the instructions given to the examining officers: here, in effect,
the last PCS. Making the modest assumption that the officers
will have executed their instructions in good faith, that ought to
provide the essential, even if not the whole, rationale for the
decision to carry out the stop. But I readily acknowledge that
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