Judgment Approved by the court for handing down.
Miranda v SSHD
LJ’s conclusion that Schedule 5 did not afford an effective mechanism for the MPS to
invoke in order to obtain the information that they wanted. Det Supt Stokley has
stated at para 50 of his first witness statement why he opted for the Schedule 7 route.
He said:
“I did not address my mind at the time to applying to a circuit
judge for a Schedule 5 TACT production order as I considered
that Schedule 7 represented the best and only method of
achieving the dual objective of establishing what material Mr
MIRANDA may have had in his possession and questioning
him about it. I may have been able to obtain access to the
material had I obtained a Schedule 5 order, but I would not
have been able to ask Mr MIRANDA what his intentions were
in relation to it unless I had arrested him and conducted a
PACE interview under caution at a police station. Secondly, I
believed that it was important to act as swiftly as possible, as
Mr MIRANDA was only going to be in the UK in transit for a
short period of time. A Schedule 5 production order process
followed by an arrest and interview would have taken much
longer, and would have inevitably resulted in a much greater
interference in Mr MIRANDA’s private life and would have
seriously disrupted his travel arrangements.”
91.
It was reasonable for him (and he was entitled) to consider that questioning Mr
Miranda in exercise of the Schedule 7 stop power was likely to be more effective than
seeking an explanation under para 13(1) of Schedule 5. So far as concerns the present
case, there were two principal weaknesses in Schedule 5 from Det Supt Stokley’s
point of view. First, the primary purpose of the stop was to enable the police to
question Mr Miranda and Schedule 5 did not allow for this. It would only have
allowed the MPS to seek Mr Miranda’s explanation of the material that he was
carrying. Secondly, the Schedule 5 process was slower process than the Schedule 7
stop process. As the officer explains, speed was particularly important in this case.
92.
There is the further point made by Laws LJ that para 2(5) of Schedule 7 provides that
a person who is questioned under para 2 must “(a) give the examining officer any
information in his possession which the officer requires”. Para 18 provides that a
person commits an offence punishable with a sentence of imprisonment and/or a fine
if he “(a) wilfully fails to comply with a duty imposed under or by virtue of this
Schedule”. On the other hand, the only sanction for disobedience to an explanation
order made under para 13 of Schedule 5 (which has effect as if it were an order of the
Crown Court: see para 10(1)) is proceedings for contempt. This is a less effective
sanction than that afforded by para 18 of Schedule 7.
93.
I accept that an order under Schedule 5 would have been less intrusive than the
exercise of the Schedule 7 stop power. But it would also have been less effective.
Having regard to the seriousness of the security interests potentially at stake, Det Supt
Stokley was entitled to adopt the procedure which he considered likely to be the most
effective. The decision not to invoke Schedule 5 did not make the exercise of the
Schedule 7 stop power disproportionate.
THE FIFTH GROUND OF APPEAL: INCOMPATIBILITY WITH ARTICLE 10
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