Judgment Approved by the court for handing down.
Miranda v SSHD
94.
In the end, the incompatibility issue has been narrowly refined to the question of
whether, as Mr Ryder contends, the Schedule 7 stop power, if used in respect of
journalistic information or material, is incompatible with article 10 in that it is not
“prescribed by law” as required by article 10(2). In essence, his case (supported by
the Interveners) is that it is not prescribed by law because it is not subject to
“sufficient legal safeguards to avoid the risk that power will be exercised arbitrarily
and thus that unjustified interference with a fundamental right will occur”: see per
Lord Hughes at para 30 of Beghal v Director of Public Prosecutions [2015] 3 WLR
344, [2015] UKSC 49.
95.
It is submitted that Schedule 7 suffers from two fundamental defects. The first is that
it contains no requirement that an examining officer even takes into account the right
to freedom of expression or, in particular, the risk that the examination of an
individual, or the seizure, examination, retention and/or copying of documents or data
may intrude upon confidential journalistic material or disclose the identity of a
confidential source. This renders the circumstances in which the power can be used
in relation to journalistic material unforeseeable and/or so broad as to require the
strongest possible independent safeguards.
96.
The second defect is that there is no provision for authorisation by a court or other
independent and impartial decision-making body in a case involving journalistic
material prior to the use of the Schedule 7 power or, in an urgent case, immediately
after the obtaining of the material pursuant to the exercise of the power. In relation to
urgent cases, where it would be impracticable to obtain such authorisation in advance
of the acquisition of documents, Schedule 7 contains no bar on the inspection of such
documents pending independent authorisation.
97.
Although these two alleged defects were identified by Mr Ryder, the focus of his
submission and those of the Interveners was on the lack of independent scrutiny of the
exercise of the power. It is to this issue that I now turn.
98.
The question of the compatibility of Schedule 7 with article 10 of the Convention did
not arise in Beghal, which concerned only articles 5, 6 and 8. As I shall explain,
article 10 imposes obligations which are materially different from those arising under
these other articles. At paras 74 to 89 of his judgment, Laws LJ held that there was no
incompatibility for two broad reasons. The first was founded on the reasoning of the
Divisional Court in Beghal. It was for this reason that Laws LJ did not accept that the
Schedule 7 power is “over-broad or arbitrary” (and on that ground is not “prescribed
by law”). He expressed his second reason in these terms at para 88:
“Mr Kovats submits that the Strasbourg court has not
developed an absolute rule of prior judicial scrutiny for cases
involving State interference with journalistic freedom. In my
judgment that is right. Although the court’s reasoning is
sometimes expressed in very general terms (see in particular
paragraphs 90 and 92 of Sanoma), in this area as in others its
method and its practice is to concentrate on the facts of the
particular case. And the Strasbourg court would itself
acknowledge that the protections against excess of power by
State agents, and the limitations which the law imposes on the
power they enjoy, vary greatly from State to State: such
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