Judgment Approved by the court for handing down.
Miranda v SSHD
that theoretical risk might materialise, and which would have enabled the court to
balance that risk against the infringement of the rights of Mr Miranda, was absent.
Mr Ryder also criticises the approach adopted by Laws LJ to the issue of “responsible
journalism”. He submits that there was nothing to suggest that Mr Miranda, Mr
Greenwald and the Guardian would not approach the question of publication with the
degree of responsibility that was appropriate to the circumstances of the case.
Conclusion on proportionality
79.
I start with a proposition to which Mr Ryder readily and properly acceded during the
course of oral argument. When determining the proportionality of a decision taken by
the police in the interests of national security, the court should accord a substantial
degree of deference to their expertise in assessing the risk to national security and in
weighing it against countervailing interests. This is because the police have both the
institutional competence and the constitutional responsibility to make such
assessments and decisions. As regards the latter, they are ultimately accountable to
Parliament and the constitutional responsibility for the protection of national security
lies with the elected government: see, for example, R (Binyam Mohamed) v Secretary
of State for Foreign and Commonwealth Affairs [2011] QB 218, [2010] EWCA Civ
158, per Lord Neuberger MR at para 131.
80.
In Secretary of State for Foreign and Commonwealth Affairs v Assistant Deputy
Coroner for Inner London [2013] EWHC 3724 (Admin), Goldring LJ having
reviewed some of the authorities said at para 57 that, when carrying out the balancing
exercise of weighing national security against (in that case) the proper administration
of justice:
“….the Secretary of State’s view regarding the nature and
extent of damage to national security which will flow from
disclosure should be accepted unless there are cogent or solid
reasons to reject it.”
81.
All risks are concerned with future possibilities. That is in their nature. Some risks
may be assessed as being so unlikely to materialise that they can be dismissed as
fanciful. Others may be assessed as very likely to materialise. Between these two
extremes there is a wide band of degrees of likelihood of a risk materialising. The
more likely the risk is assessed to be, the greater the weight that should be accorded to
it when balancing it against a countervailing factor. By using the word “theoretical”
in this case, I understand Mr Ryder to be saying that the risk in question is very
unlikely to materialise. He may even be saying that it is fanciful.
82.
I do not accept that the evidence of Det Supt Stokley, Mr Robbins and Det Supt
Goode can be brushed aside in this way. Laws LJ was right to describe it as
“compelling”. I have in mind, in particular, the evidence of Mr Robbins that the
material seized was “highly likely to describe techniques that have been crucial in lifesaving counter-terrorism operations, the prevention and detection of serious crime and
other intelligence activities vital to the security of the UK” (emphasis added). The
evidence of Det Supt Stokley was to similar effect: see para 71 above. There is no
reason to disagree with their assessment of the risk. Indeed, the court is ill equipped
to do so. The police and the Security Service have the expertise and access to secret
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