Judgment Approved by the court for handing down.
Miranda v SSHD
life or security. There may no doubt be obvious cases, where
the information on its face is a gift to the terrorist. But in other
instances the journalist may not understand the intrinsic
significance of material in his hands; more particularly, the
consequences of revealing this or that fact will depend upon
knowledge of the whole “jigsaw” (a term used in the course of
argument) of disparate pieces of intelligence, to which the
classes of persons referred to by Mr Greenwald will not have
access. At paragraph 26 of his first statement Mr Robbins says
this:
‘Indeed it is impossible for a journalist alone to form a
proper judgment about what disclosure of protectively
marked intelligence does or does not damage national
security... The fragmentary nature of intelligence means that
even a seemingly innocuous piece of information can
provide important clues to individuals involved in extremism
or terrorism.’”
75.
At para 65, he said:
“In my judgment, however, Mr Ryder’s broader argument on
proportionality – that the use of Schedule 7 is in any event
unjustified – does not in truth depend on the categorisation of
the GCHQ documents as journalistic material. The heart of the
point is that the claimant was assisting in the conduct of
responsible journalism, and the law’s duty to protect that
activity means that interference with it by the summary and
unsupervised process of Schedule 7 was disproportionate and
unlawful whether or not any intercepted documents strictly fell
within the statutory definition of “journalistic material”: no
“fair balance [was] struck between the rights of the individual
and the interests of the community” – requirement (iv) in the
restatement of the proportionality principle in Bank Mellat:
though, as I have held (paragraph 45), where journalistic
freedom is involved the balance is not between private right
and public interest, but between two aspects of the public
interest.”
76.
At paras 66 to 71, he made some interesting observations about the notion of
“responsible journalism” in the context of publishing material which poses a threat to
national security. He acknowledged that journalists have a professional responsibility
to take care to see that the public interest, including the security of the State and the
lives of other people, is not endangered by what they publish. He added:
“But that is not an adequate safeguard for lives and security,
because of the “jigsaw” quality of intelligence information, and
because the journalist will have his own take or focus on what
serves the public interest, for which he is not answerable to the
public through Parliament”.
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