The ability of police to use the 2000 Terrorism Act to force journalists to give up confidential sources has been curbed today as reporter Shiv Malik claimed a victory in his legal battle against Greater Manchester Police.
For the present Malik has won the right not to give up his notes to the police in defiance of an order made under the Terrorism Act at Manchester Crown Court in March. But he could yet be asked to hand over some of his notes at a further hearing.
Today’s judgment was handed down following a three-day judicial review hearing at London’s High Court last month.
Malik declared a ‘victory for common sense’after three of the country’s senior judges ruled that the order requiring him to disclose all source material for his book – Leaving al Qaeda: Inside The Mind Of A British Jihadist – was too wide.
Crucially, the judicial review ruling said that the order was wrong because it would compel Malik to identify sources other than Hassan Butt, the main subject of the book, who was already known to police.
Lord Justice John Dyson said the court took the view that the matter should be reconsidered, and set 26 June as the date for a further hearing on the scope of the order.
He said: ‘We are of the view that, on the material and argument before him, the judge was entitled to conclude a production order should be made in principle. But we consider the terms of the order that he made were too wide.”
Lord Justice Dyson, who sat with on the case with Mr Justice Pitchford and Mr Justice Ouseley last month, said Malik was a respected freelance journalist and had a particular interest in terrorism.
The judgement said: ‘Where, as in the present case, such material is in the possession of a journalist, there is a potential clash between the interests of the state, in ensuring the police are able to conduct terrorist investigations as effectively as possible, and the rights of the journalist to protect his or her confidential sources.
‘Important though these rights of a journalist unquestionably are, they are 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.’
The judgment also criticised the original order made by Judge Goldstone at Manchester Crown Court in March, ordering Malik to hand over his notes.
It said that “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 claimants contacts other than Hassan Butt”.
The judgment continued: “To the exttent that the order made by the judge went further and required the production of material in possession of the claimant relating to Hassant Butt provided by any source (ie. not only Hassan Butt himself) it was in our judgment too wide.”
Claiming today’s ruling as a victory, Malik said: “In an age of terrorism and counter terrorism and wide-ranging, dragnet, legis,ation, the courts have taken it upon themselves to limit the powers handed down by Government to the police. They have denied the police the right to go on unlimited fishing expeditions.
“In so doing, they recognise the right of sensible and determined investigative journalists to protect confidential sources.
“They have also raised their concerns in regards to the direct prosecution of journalists when it comes to withholding information in terrorist investigations.
“In a free society, journalists should never themselves be prosecuted for carrying out their regular functions, and I am grateful to the judges in the High Court for raising their concerns on this point of law.”
Malik thanked The Sunday Times and the NUJ who have jointly funded his legal battle. And he paid tribute to the “many other individuals and libertarian organisations” which aided his “fight for civil rights”.
NUJ general secretary Jeremy Dear said: “Today’s judgment was not just a victory for Malik but also a victory for all those who believe in the importance of investigative journalism.”
He said: “The ruling sends a clear signal to the police that they can’t see journalists as simply another tool of intelligence gathering.
“Today’s judgment shows that to play hard and loose with such sensitive material as journalistic sources is simply not acceptable.
“There are sometimes people and places that only journalists can reach – where the whole of society benefits from questions being asked.”