Miranda v Secretary of State for the Home Department & Ors

The Schedule 7 power may be used at a port or border to investigate whether a traveller appears to be concerned in terrorism. The examining officer need not have reasonable suspicion or have concluded that the person appears to fall within section 40(1)(b) before exercising the power. The power must nevertheless be used in good faith, on a reasoned basis and proportionately.

Where journalistic freedom is engaged, the relevant balance is between press freedom and the public interest in the protection of national security. The absence of prior judicial authorisation does not automatically make Schedule 7 incompatible with Article 10. On the facts, the stop and detention were lawful and proportionate.

The claimant, a Brazilian citizen assisting journalists working with material obtained from Edward Snowden, was stopped and detained at Heathrow under paragraph 2(1) of Schedule 7 to the Terrorism Act 2000. Encrypted storage devices containing highly classified intelligence material were examined and retained.

He sought judicial review against the Secretary of State and the Commissioner of Police of the Metropolis. He argued that the power had been used for an improper purpose, that the interference with journalistic expression was disproportionate, and that Schedule 7 was incompatible with Article 10. The central issues were the statutory purpose of the power, proportionality, legal certainty and safeguards.

1. Statutory purpose. The purpose of the stop was to ascertain the nature of the material carried by the claimant and, if the feared risks were confirmed, to neutralise the effects of its release or dissemination. That purpose fell within paragraph 2(1) of Schedule 7. The court could consider the instructions and authorisation process behind the stop, rather than only the subjective knowledge of the officers who executed it.
2. The statutory scheme deliberately permits examination without grounds for suspicion. The officer need only investigate whether the traveller appears to be a person falling within section 40(1)(b). The power remains subject to good faith, a reasoned basis, proportionality, the port or border limitation and the statutory detention period. No criminal-law mental element or secondary-liability test should be imported into sections 1 or 40.
3. Proportionality. The court applied the four-stage approach stated in Bank Mellat v Her Majesty’s Treasury (No 2) [2013] UKSC 39. The objective was pressing and legitimate, the stop was rationally connected to it, and no more suitable and less intrusive measure was available. Schedule 5 could not practically have supplied an alternative because the material was unidentified and the statutory conditions could not have been met.
4. The stop indirectly interfered with press freedom, but compelling evidence established a serious national-security risk. Journalistic freedom is a substantial public interest, but journalists do not share the constitutional responsibility for protecting national security, which lies with elected government. The balance therefore favoured national security.
5. Schedule 7 was neither over-broad nor arbitrary and was sufficiently prescribed by law. The reasoning in Beghal [2014] 2 WLR 150 was correct. Article 10 did not require an absolute rule of prior judicial scrutiny for every interference with journalistic freedom.
6. The application for judicial review was dismissed.

This was a first-instance judicial review in the Divisional Court. The judgment records earlier interlocutory hearings and orders concerning interim relief, disclosure and intervention, but no prior merits decision from another court.