When officers from Greater Manchester Police turned up at Shiv Malik’s house at 7.50am on 19 March, it marked the beginning of an action which promises to be a defining moment for UK press freedom in the age of home-grown Islamic terrorism.
Police served him with an order under schedule five of the Terrorism Act 2000 asking for all material relating to a book he is writing with self-confessed former terrorist spokesman and trainer Hassan Butt, from Manchester, including taped interviews and written notes.
Two months on, his challenge to the order has forced a judicial review in the Administrative Division of the High Court which could – if successful – protect journalists from police ‘fishing expeditions’under the Terrorism Act in future.
But if the panel of three senior judges decide in their ruling, expected in mid-June, that GMP was justified in its actions, a precedent could be set that would allow police to seize journalists notes’ on terrorists – severely undermining the long-held democratic principle of protecting the anonymity for journalistic sources.
If freelance journalist Malik loses his action, funded jointly by the National Union of Journalists and The Sunday Times to the tune of £80,000, he could end up behind bars.
Under Section 38B of the Act, it is an offence to withhold information relating to a terrorist offence – which means that even if Malik does hand in his notes, he could face prosecution for failing to volunteer them in the first place.
Section 19 also makes it an offence to not volunteer information relating to the funding of terrorism, with a maximum penalty of three months in jail, something almost certainly covered in Malik’s book, Leaving Al Qaeda.
Andrew Edis QC, acting for GMP, told the High Court last week that the police did not know exactly what they were seeking, only that Malik had interviewed Butt, who is linked to a forthcoming terrorism trial at Manchester Crown Court in September.
Edis said: ‘Malik is far better informed than the police – he knows what he’s got and the potential to self-incriminate and he knows who his sources are. The police know neither of these things.”
In the trial in September, one defendant – whom Press Gazette can only name as ‘A’– hopes to rely on evidence or testimony from Butt in his defence.
A reporting restriction ordered by the judicial review panel of three judges, Lord Justice Dyson, Mr Justice Pitchford and Mr Justice Ouseley, bans the press from mentioning the reason police are interested in Butt, except to say that his arrest is related to a forthcoming terror trial in September involving ‘A”.
GMP arrested Butt and held him for almost two weeks earlier this month. They released him last Thursday, and now want to question him again with the help of the Malik material.
Malik’s publisher, Constable & Robinson, handed over an early transcript of his book after being served with an order – but it does not contain the information police are after.
Edis told the court that GMP suspects Butt admitted in interviews with Malik to committing terrorist offences in Pakistan and Britain, including playing a lead role in the fertiliser bomb attack on the US consulate in Karachi in 2002 in which 11 people died.
Although the order demands all material relating to Butt, disclosure would inadvertently reveal several other sources for the book, Malik’s counsel James Eadie QC argued in court.
He said: ‘In short, for Mr Malik, there are significant problems. All the time and work that went into the book may be at risk. Sources do not make distinctions over whether the court has made an order or not – the perception would be that he has become a witness for the state.”
Eadie added that Malik feared for his safety and the safety of his sources, many of whom would be revealed to police through the disclosure of his notes to them.
Eadie said that the order on Malik could ‘potentially destroy his livelihood”.
He said: ‘There is a very, very high value to be attached to press freedom, especially where confidential sources are involved. Because the order is so wide, an order with that width would have a serious chilling effect.
‘There is a serious importance to the stifling effect of this case. We are dealing here with a writer of some repute. These are serious publications and he is a serious journalist. The subject is one of the most pressing in terms of public interest.
‘The book expresses what draws people into terrorism and what might take them out of itâ€¦ so there is a very serious public interest in it.”
Production orders were also served by GMP on The Sunday Times, for whom Malik wrote several articles on terrorism; Prospect magazine, specifically for an article by journalist Aatish Taseer on Hassan Butt; CBS News, which interviewed Butt, and the BBC, which made a Newsnight film with help from Malik.
Eadie told the court: ‘These applications are illustrative of the damage being done to the freedom of the press and the true nature of the stifling effect that would ensue if this was upheld.”
Under the Police and Criminal Evidence Act 1984, police must convince a judge of four things: that the material sought relates to a ‘serious arrestable offence”; that the evidence would be admissible in court; that other methods have been tried by police and that disclosure would be in the public interest.
Under the Terrorism Act, none of these safeguards exist. Although the same protections are explicitly given under schedule four, schedule five and six then override them by giving police powers to seize material ‘for the purposes of a terrorist investigation”.
In cases of emergency – a factor apparently decided by the police themselves – paragraph 15 of schedule five of the Terrorism Act allows an officer of superintendent level to authorise an order without the need of a judge.
As Malik wrote in Press Gazette last week, he is caught in a catch-22 situation. If he refuses to give up his notes he could be prosecuted – either under the Terrorism Act or the Contempt of Court Act, or both.
But if he complies with the order, he has not been offered any immunity from prosecution for not giving up his notes when he first learned of any terrorist acts or the funding of terror groups.
The judicial review judgment is expected in mid-June.