Freelance journalist Shiv Malik called Thursday's judicial
review ruling "a victory for common sense." The National Union of
Journalists (NUJ) said it "sends a clear signal to the police that
they can’t see journalists as simply another tool of intelligence
gathering."
Malik is writing a book entitled 'Leaving al-Qaeda: Inside the
Mind of a British Jihadist'. It is being written in collaboration
with Hassan Butt, a former member of the terrorist group who once
claimed to have killed 11 people. In a synopsis of the book, Butt
was quoted as saying that he had "spent a decade killing for
killing's sake."
In March, the Chief Constable of Manchester Police applied to
Manchester Crown Court for a production order under the Terrorism
Act 2000, a warrant that would force Malik to reveal his source
materials.
An order was granted that required disclosure within nine days
of "all material in [Malik's] possession" concerning Butt's
terrorist activities, about another man referred to in court as
'A', the drafts and source material for his book including all
material provided by Butt to Malik, all images, audio and video
recordings, notes made regardless of format and source material,
financial information and more.
Malik sought judicial review and the production order's
execution was stayed pending its outcome. He said that order was
unlawful primarily for breaching his rights to freedom of
expression under Article 10 of the European Convention of Human
Rights.
The Chief Constable's application for a production order was
even wider than the order granted. It sought production of "contact
lists of all persons featured in the book, contractual
agreements/arrangements/negotiations in respect of Hassan Butt
including off the record or unofficial agreements and any financial
information".
The Chief Constable argued that the order was necessary for two
terrorist investigations, one into Butt and another into the person
referred to as 'A'. Malik had argued that complying with the order
would leave him unable to complete his book, ruin his reputation as
an investigative journalist, leave him in debt and put his and his
family's personal safety in "extreme danger."
Between the order being granted and the date of the judicial
review, Malik's publisher delivered a draft manuscript to the
police. Butt was arrested a few weeks later as he was about to
board a plane to Pakistan. Butt told the police that his earlier
statements about terrorist activities and membership of al-Qaeda
were lies that he told to make money and achieve fame. He was
released without charge though police investigations are
ongoing.
Malik's legal team said the judge had "failed to exercise his
discretion compatibly with the Convention and in particular with
article 10". That article states that everyone has the right to
freedom of expression.
The principles in article 10 were not in dispute. The High Court
said that when approaching article 10: "(i) the court should attach
considerable weight to the nature of the right interfered with when
an application is made against a journalist; (ii) the
proportionality of any proposed order should be measured and
justified against that weight and (iii) a person who applies for an
order should provide a clear and compelling case in justification
of it."
A panel of three High Court judges said that the Crown Court
judge's approach "cannot be criticised."
Lord Justice Dyson wrote: "in our judgment, he must have
concluded that the activities being investigated were so serious
that, taken in conjunction with the benefit that was likely to
accrue from the material from Hassan Butt that was in the
claimant's possession, they justified interfering with the
claimant's article 10 rights. That was a conclusion which the judge
was entitled to reach."
The panel of three judges also rejected Malik's fears for his
and his family's lives if he were forced to hand over his contacts
lists and other confidential information to the police. The court
said it was "of some relevance that journalists who investigate the
world of terrorism must be taken to be aware of the fact that it is
a criminal offence not to disclose to the police information
relating to terrorism that is caught by sections 19 and 38B of the
2000 Act."
The court concluded that the judge "was entitled to decide in
principle to grant a production order." It said that in view of the
threat to national security posed by al-Qaeda, "the Chief Constable
would be acting irresponsibly if he did not investigate the
activities of Hassan Butt thoroughly and seek to obtain all
material that might assist him in his investigations."
But it ruled that the Crown Court's production order was too
wide in its scope. The judge had intended by his order to "do what
can reasonably and properly be done" to preserve the anonymity of
Malik's contacts other than Butt. He did not think it appropriate
to require Malik to give up contact lists of "all persons featured
in the book or contractual agreements, arrangements and
negotiations in respect of Mr Butt".
But Lord Justice Dyson considered that the order "was drafted in
terms which might lead to the disclosure of the claimant's sources
other than Hassan Butt."
"The identity of such sources might be discoverable from the
'source material for the book' including the material provided by
Hassan Butt," he wrote.
The court noted Malik's claim that his handwritten notebooks,
typed-up notes, interview tapes and interview transcripts, if
disclosed, would lead to the identification of some of his sources
other than Butt.
Lord Justice Dyson wrote: "In view of the importance of the need
to protect a journalist's sources in aid of his or her article 10
rights, the limitations created by article 10(2) must be applied
with caution and convincingly established. That is why the judge
was right to adopt a step by step approach. His decision 'for the
moment at any rate' not to require the claimant to give up his
contact lists gave expression to that approach. But in our view,
the terms of the order did not sufficiently reflect the judge's
intention of doing what could reasonably and properly be done
without prejudice to the competing rights to preserve the anonymity
of the claimant's contacts (other than Hassan Butt)."
He concluded that the rights of a journalist to protect
confidential sources are important but not absolute. "Parliament
has decided that the public interest in the security of the state
must be taken into account. A balance has to be struck between the
protection of the confidential material of journalists and the
interest of us all in facilitating effective terrorist
investigations. It is for the court to strike that balance," he
wrote.
Malik's case was supported by the NUJ and Times Newspapers.
Speaking outside the High Court after the ruling was announced,
NUJ General Secretary Jeremy Dear said the ruling serves as a
warning to police.
“This ruling sends a clear signal to the police that they can’t
see journalists as simply another tool of intelligence gathering,"
he said. "When Greater Manchester Police applied for the original
production order, they failed to recognise the special nature of
journalistic material. Rather than take the time to consider what
information they really needed, the police went fishing, hoping a
general order would dredge up something of use."
“Hassan Butt had already informed the authorities that he was
ready, willing and able to talk to the police and the security
services about what he knew and what he had done. Today’s judgment
shows that to play hard and loose with such sensitive material as
journalistic sources is simply not acceptable."
