The BBC did not contest the police application for its reporter's laptop, Press Gazette has learned.
The corporation's press office refused this morning to answer further questions about the seizure and would not say which police force was involved.
- September 21, 2021
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However, Press Gazette has learned that the South East Counter Terrorism Unit, which is led by Thames Valley Police, made the application through the crown court in August.
According to TVP, the BBC was present in court but "did not contest the application or decision of the court".
This morning, the seizure was condemned by lawyers, journalists and press freedom campaigners who warned of a resultant "chilling effect".
When asked about the seizure this afternoon, Thames Valley Police said: "It would be inappropriate to talk about any ongoing live investigation; however the South East Counter Terrorism Unit (SECTU) regularly conducts investigations where items may need to be examined. SECTU will always seek co-operation of the public and others who can voluntarily disclose material which may assist an ongoing investigation. Where co-operation is not agreed officers can seek a court order under under the Terrorism Act, these are used proportionately and on a case by case basis.
"In order to obtain a court order officers would have to satisfy the Crown Court that there were sufficient grounds to justify the issue of a Production Order under the Terrorism Act. The Respondent in any such process can contest the Order which can then be heard at a higher court. In this particular case, the BBC attended the hearing in August and did not contest the application or decision of the court. Police have since returned the laptop that was the subject of this Order."
According to TVP, SECTU is part of the national Counter Terrorism Network. It covers police force areas of Thames Valley, Hampshire, Sussex, Surrey and Kent. "The unit is led by Thames Valley Police and has its central base in Berkshire."
According to a BBC report, which was updated after this story was published, "there were lengthy negotiations between the BBC and the police force before the court order was made".
This morning, Press Gazette asked the BBC press office which police force seized the laptop, under which section of the Terrorism Act it was obtained, when the application went before a judge and whether the BBC did or was able to contest the ruling.
But the BBC press office said “the law prevents us from giving any more details”.
The Independent, rather than the BBC itself, broke news of Secunder Kermani’s laptop being obtained today.
The BBC press office has released the following two quotes:
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.”
Meanwhile, the seizure was this morning condemned by journalists, lawyers and press freedom campaigners.
Gavin Millar QC, of Matrix Chambers, warned of the dangers the Terrorism Act posed for journalists and their sources last month.
He acknowledged that, in this case, the BBC said the source was not confidential, but warned it was a “chilling effect issue”.
Millar revealed that he has heard of three cases in the last year in which forces have threatened – but not used – to use the Terrorism Act in this way in stories involving young men who have travelled to fight in Syria and Iraq before returning to Europe and the UK.
Millar told Press Gazette he feels these stories may being underreported. He said: "Are we not learning about these stories through journalists because of… anxiety that you'll get an application under the Terrorism Act? So it's a chilling effect issue.
"And the problem with any outcome like the Newsnight outcome is that anxiety that the journalists hear about it and know about it, and it encourages the police and security services to try these legal routes."
He also suggested freelance journalists could be “particularly vulnerable because they're not backed by a big media organisation".
The National Union of Journalists accused police of “yet again… riding roughshod over press freedom and using anti-terror legislation to get their hands on journalistic information”.
General secretary Michelle Stanistreet said: “There are serious questions to be answered about why the order obtained by the police warranted the seizing of a journalists' laptop – which may well have contained confidential information on other sources and other stories too.
"Using journalists as tools of the police in this way has a chilling effect on press freedom and hampers the ability of journalists to protect their sources and do their jobs properly and with integrity.
“Police and state interference is making the lives of journalists incredibly difficult and potentially jeopardises their safety in the process. Whether it's the routine use of surveillance by police on journalists, the legal cases brought against journalists accused of corrupting public officials or the targeting of journalists covering public order situations – it all creates a climate where trusting in journalists or being a whistleblower is incredibly difficult.
"How can any potential source, someone who believes that they have information that absolutely should be in the public domain, have any faith that their identity and their future can be safe in any one journalist or newspaper’s hands? We lose the ability to protect our sources at our peril. Terrorism laws should not be used as convenient cloaks to sidestep measures that protect press freedom and the ability of journalists to inform the public and to hold power to account."
Gillian Phillips, The Guardian’s director of editorial legal services, tweeted: “Anyone else find this deeply worrying?”
And Aidan White, the director of the Ethical Journalism Network, described it as an example of “how the law exploits public fears over terrorism and becomes an excuse for intimidation of legitimate journalism”.