A leading media lawyer has warned journalists that the Terrorism Act could be used by police to obtain source material.
Gavin Millar QC revealed there have been "lots of stand-offs" between media organisations and police, warning of the "looming problem".
Because of the wording of the Terrorism Act 2000, he said, British citizens who travel to Syria to fight President Bashar Assad's regime are considered terrorists. And these people are not speaking to journalists, Millar suggested, because news organisations "are not able to give comfort to the sources of the stories that we will keep their identities confidential".
The Terrorism Act also contains a "nasty offence… of journalists not informing police when they have information about whether a terrorist offence has been committed", he said.
Millar told the IBC Protecting the Media conference on 24 September: "The definition of terrorism in section 1 is very wide. It can include action to advance a religious cause amongst other things, and to influence the government or intimidate the public…
"The concept of action obviously includes violence or the threat of violence. Action includes something you do overseas. And government can mean the government of another country.
"It all sounds innocent enough until you start to think about Syria and British citizens going to fight in Syria against the government of Assad, in one of the groups that is fighting Assad.
"Now they are, in the view of the courts, terrorists, because of the words of the definition under section 1. That is very important."
Section 32 of the Act gave a correspondingly wide definition of a terrorist investigation as including any police or law enforcement agency investigation into the commission, preparation or instigation of acts of terrorism, and funding of terrorism organisations and so on.
"Because there is a very wide definition of terrorism, it is very easy to say there is an aspect of an investigation that is a terrorism investigation," Millar said.
The Act included provisions for police and investigators to obtain production orders power – similar to the powers granted under the Police and Criminal Evidence Act (PACE).
"It works in a similar way – you cannot just get a search warrant to go on to premises to search for journalistic material, even though it is a terrorism investigation, you have to go through the process of persuading a judge to give you a production order," Millar said.
But under the Terrorism Act the access conditions applicants had to meet in order to get the order were much easier to meet, even if the information sought was confidential material, Millar said.
"It is simply a question of whether there are reasonable grounds to believe that the journalistic material that is being sought would be of substantial value to the investigation, which is not difficult to make out in front of a judge," he said.
"Now in all of these cases, there is a back-stop argument that a production order should not be made for Article 10 reasons, because what the journalist was engaging in was public interest journalism and that has a value, and it has a chilling effect if the state goes around getting production orders against journalists for this sort of material."
Journalists and news organisation facing the possibility of an application for a production order had to say is that they would take a stand on the issue of public interest journalism – that handing over the material would chill investigative journalism in this important area, covering terrorism from a news or journalistic perspective.
"There is not much case law on that – there have been lots of stand-offs between media organisations and the Metropolitan Police about whether they really want to take that on. It is certainly a looming problem," Millar said.
The Terrorism Act also included "a nasty offence under section 38(b) of journalists not informing police when they have information about whether a terrorist offence has been committed", he went on.
One example, which had come up a lot recently, was the shortage of coverage of the position of returnees from Syria – UK citizens who went to fight and came back.
"There are a few of them, but they don't tend to speak to journalists," Millar said.
"But there have been one or two cases where they have done so. They have given accounts of what happened – how they got to Syria, which group they were recruited by, what they did when they were there, which is generally much less exciting and romantic and military than what they thought was the reason why they went there, and who they fought against, why they came back, and what their general view about the whole thing is now."
Millar went on: "You can see the problem coming up here – the subject of the interview, if you get him to speak, will be a confidential journalistic source. They won't want to be identified as the source of the information, but they may, for example, give you an interview with their back to camera, or with their face pixellated out – that has happened.
"The reason they won't want to be identified is because they have committed a Terrorism Act offence by going and fighting against Assad in Syria, and the position of the Metropolitan Police and the CPS is to pursue prosecutions in those cases.
"Immediately you publish that material, police will be on your doorstep asking for disclosure of the confidential material – 'Can we see the journalists' notes, can we see the out-takes, which may show the face of the person concerned, so we can identify them?'."
Millar asked: "How is the public supposed to know what is going on with these British citizens who go and fight in Syria? We won't get any of these stories and we won't be able to act as a watchdog and convey this information to the public if we are not able to give comfort to the sources of the stories that we will keep their identities confidential.
"The police have tended to back off – but there is a fight coming on this. So if you get journalists in that position, who have got that sort of information, you will get a phone call, I can tell you."
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