Out-Law News | 23 Jun 2008 | 4:41 pm | 5 min. read
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."