October 30, 2015

BBC says ‘troubling’ Terrorism Act did not allow it to argue against giving reporter’s laptop to police

The BBC has said it did not resist the police seizure of a reporter's laptop because the Terrorism Act 2000 does not allow it to mount a freedom of speech defence.

Press Gazette revealed yesterday that the corporation did not contest a court application for the computer of Newsnight reporter Secunder Kermani.

The South East Counter Terrorism Unit, which is led by Thames Valley Police and also covers Hampshire, Sussex, Surrey and Kent, used a Production Order under the Terrorism Act to obtain the laptop through a crown court in August after he interviewed a British-born Islamic State fighter.

The BBC did not contest the application in court and then agreed to hand over the laptop.

The seizure was first reported by The Independent rather than the BBC. And the corporation's press office yesterday declined to reveal any further details – refusing even to say which force was involved – explaining that "the law prevents us from giving any more details".

Instead, it sent out the same two statements that appeared in The Independent and elsewhere:

A BBC spokesperson said: “Police obtained an order under the Terrorism Act requiring the BBC to hand over communication between a Newsnight journalist and a man in Syria who had publicly identified himself as an IS member. The man had featured in Newsnight reports and was not a confidential source”.
[Newsnight editor] Ian Katz said: “While we would not seek to obstruct any police investigation we are concerned that the use of the Terrorism Act to obtain communication between journalists and sources will make it very difficult for reporters to cover this issue of critical public interest.”

But at 9pm last night, the BBC issued a third statement saying it did not resist the police's application "because the Act does not afford grounds under which it could be opposed".

The statement said: "The BBC does everything it can to protect its reporters’ communication and materials and sought independent expert legal advice in the case of Secunder Kermani.

"It did not resist Thames Valley’s application for an order under the Terrorism Act in court because the Act does not afford grounds under which it could be opposed.

"It is troubling that this legislation does not provide the opportunity for the media to mount a freedom of speech defence."

Press Gazette has asked the BBC, Thames Valley Police and SECTU which section of the Terrorism Act the laptop was applied for under.

In 2008, freelance journalist Shiv Malik fought a lengthy legal battle against Greater Manchester Police after it used a production order under the Terrorism Act to demand he hand over notebooks and other material detailing his conversations with an alleged British jihadist.

After taking the case to judicial review, Malik was ordered to hand over the material, albeit redacted to remove the names of individuals other than that of terrorism suspect Hassan Butt.