Judgment Approved by the court for handing down.
Miranda v SSHD
also have regard to the applicant’s conduct, including whether
he identified himself as a journalist.”
63.
The fact that the applicant was not “readily identifiable as a journalist prior to his
apprehension” was one of the factors that led the court to decide that the domestic
authorities had struck a fair balance between the competing interests at stake.
Accordingly, the apprehension, detention and conviction of the applicant were
justified and not a violation of article 10.
64.
I do not find this a surprising approach for the ECtHR to have taken and I agree with
it. It would be unreasonable to criticise an authority for failing to give weight to the
importance of the freedom to publish journalistic material if the authority did not
know (and could not reasonably have known) that it was journalistic material. It is,
therefore, necessary to examine the evidence to see whether the MPS knew or ought
to have known that Mr Miranda was in possession of journalistic material.
65.
The examining officers were only aware of the information that was contained in the
final PCS. This said nothing about the nature of the material except that its release
would endanger people’s lives and that its disclosure or the threat of its disclosure was
designed to influence a government and was made for a political or ideological cause.
It did not refer to Mr Snowden, Mr Greenwald, the Guardian or journalism.
Moreover, when he was questioned by the examining officers, Mr Miranda did not
say that he was a journalist or that the material that he was carrying was journalistic
material.
66.
Det Supt Stokley was, however, aware of the contents of the NSJ, which did refer to
the assessment that Mr Miranda was carrying items which would “assist in
GREENWALD releasing more of the NSA and GCHQ material we judge to be in
GREENWALD’s possession”.
67.
Although Mr Miranda was not a journalist, he worked very closely with Mr
Greenwald who was. Det Supt Stokley knew this and that the Security Service had
made the assessment stated in the NSJ that Mr Miranda was carrying items that would
assist in Mr Greenwald releasing more of the material that was judged to be in Mr
Greenwald’s possession. Mr Miranda therefore appeared to Det Supt Stokley to have
in his possession journalistic material. In my view, the fact that the examining
officers were not aware that Mr Miranda was or might be carrying journalistic
material is not a trump card in the hands of the defendants. I can see no justification
for disregarding the knowledge and belief of those who were directing the examining
officers when considering whether the MPS knew or believed that Mr Miranda was
carrying journalistic material. In view of what Det Sup Stokley knew, the balancing
exercise must be conducted on the basis that the material was or might have been
journalistic material.
The assessment of the threat to national security
The judgment of the Divisional Court
68.
At para 52 of his judgment, Laws LJ said that, on the evidence, the stop was “a
pressing imperative in the interests of national security”. The external hard drive
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