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PCS, nor the witness statements filed for the defendants, can sensibly be read as
suggesting that damage would only ensue if all the material were released.
69. However, what I have called the heart of the point in Mr Ryder s argument does not, I
think, depend on any such proposition. His submission in reply was broader: he said
that there was no evidence of the degree of danger posed by the claimant s possession
of the material. The suggestion is that risk to security or to life must be
demonstrated to some higher standard than was done here if State interference with
journalistic freedom (at least by such means as Schedule 7) is to be justified, if it can
be justified at all. The implication appears to be that such risks as the defendants
witnesses describe, not being more precisely specified, must by law be accepted for
the sake of journalistic freedom s integrity.
70. It is not immediately clear why that should be so. But Mr Ryder s case was to my
mind illuminated by three propositions which he articulated in reply. The first was
that journalists, like judges , have a role in a democratic State to scrutinise action by
government. The second was that the function of the free press is inhibited by an
insistence that anything (in the security field) which the journalist seeks to publish
must be stifled because it may be part of the jigsaw from which a knowing terrorist
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may draw harmful inferences. The third was that there is a balance to be struck, again
in the security field, between the responsibility of government and the responsibility
of journalists.
71. In my judgment, taken at their height these propositions would confer on the
journalists profession a constitutional status which it does not possess. They suggest,
as Mr Greenwald s evidence suggested, that journalists share with government the
responsibility of measuring what is required by way of withholding publication for the
protection of national security. Journalists have no such constitutional responsibility.
They have, of course, a professional responsibility to take care so far as they are able
to see that the public interest, including the security of the State and the lives of other
people, is not endangered by what they publish. But that is not an adequate safeguard
for lives and security, because of the jigsaw quality of intelligence information, and
because the journalist will have his own take or focus on what serves the public
interest, for which he is not answerable to the public through Parliament. The
constitutional responsibility for the protection of national security lies with elected
government: see, amongst much other authority, Binyam Mohamed [2011] QB 218
per Lord Neuberger MR at paragraph 131. The authorities I have cited on the
importance of press freedom nowhere ascribe such a responsibility to the journalists
profession. Their effect, rather, is to acknowledge the high public interest inherent in
press freedom, and to stipulate accordingly that any interference with it stands in need
of substantial objective justification. Of that the courts are the judge; and they will
require compelling evidence (per Judge LJ in Ex p. Bright) before they will validate
the interference.
Conclusions on Proportionality
72. How do these considerations bear on the present case? The claimant was not a
journalist; the stolen GCHQ intelligence material he was carrying was not
journalistic material , or if it was, only in the weakest sense. But he was acting in
support of Mr Greenwald s activities as a journalist. I accept that the Schedule 7 stop
constituted an indirect interference with press freedom, though no such interference
was asserted by the claimant at the time. In my judgment, however, it is shown by
compelling evidence to have been justified. I have described the testimony of Mr
Robbins and DS Goode (and DS Stokley). There is no reason to doubt any of it. In
contrast, (1) the evidence of the claimant and Mr Greenwald is unhelpful, to the extent
I have explained. (2) There is no question of a source being revealed; though I accept
there is some force in the Article 19 Interveners submission (paragraph 17) as to the
potential discouragement of future journalistic sources who may not elect to waive
their anonymity . (3) The fact that the material was stolen, though it does not exclude
the law s intervention to protect free speech, goes in the scales in favour of the
defendants.
73. In my judgment the Schedule 7 stop was a proportionate measure in the
circumstances. Its objective was not only legitimate, but very pressing. The demands
of journalistic free expression were qualified in the ways I have explained. In a press
freedom case, the fourth requirement in the catalogue of proportionality involves as I
have said the striking of a balance between two aspects of the public interest: press
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freedom itself on one hand, and on the other whatever is sought to justify the
interference: here national security. On the facts of this case, the balance is plainly in
favour of the latter.
ARTICLE 10
74. As is well known ECHR Article 10 provides:
1. Everyone has the right to freedom of expression. This right
shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public
authority and regardless of frontiers&
2. The exercise of these freedoms, since it carries with it duties
and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law and
are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others,
for preventing the disclosure of information received in
confidence, or for maintaining the authority and impartiality of
the judiciary.
75. My conclusions on proportionality mean at least that the Schedule 7 power is capable,
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