The legislation being used by Greater Manchester Police is the Terrorism Act 2000. This is believed to be the first time the act has been used to attempt to seize a journalist’s notes.
Under schedule five, police have wide-ranging powers to search people and premises and seize material to help with an ongoing terrorist investigation.
But forces must first apply for a warrant from a circuit judge and have ‘reasonable grounds’for believing that the material sought is of ‘substantial value’to an investigation or they fear it may soon be destroyed.
Although journalistic material is ‘excepted’under the Act, the law also states that a police constable can apply to a judge to obtain it as part of a terrorist investigation under paragraph five, schedule five. Under the Anti-Terrorism, Crime and Security Act 2001, which amended the 2000 Terrorism Act, it is an offence to withhold information on suspected terrorist offences. Section 38B(2) makes it illegal not to inform police of something that could prevent a terrorist act – a crime with a five-year maximum jail sentence.
Section 19 of the Terrorism Act also makes it a crime to not notify police of information relating to the funding of terrorism.
Journalistic material could already be seized by police under the Police and Criminal Evidence Act (PACE) 1984. But under that legislation, police must first convince a judge that the evidence relates to a ‘serious arrestable offence’or that the evidence would be admissible in a trial. They also have to prove they are acting in the public interest and that other methods of obtaining the information have been tried without success.
This latest action from police could be counter-productive and lead to the destruction of journalistic material according to Gavin Millar QC who is representing the BBC, The Sunday Times and Prospect magazine in their resistance of the production orders.
He said: ‘The big question is whether the use of the terror powers chills freedom of expression in the future.
‘To write stuff about people who are renouncing jihadism is difficult enough but to find people willing to talk in circumstances where the journalist may have to end up handing over all the material to the police is going to make people very reluctant to talk.
‘It’s an age-old problem in this area – the reality is simply that there are sources for journalistic material in certain areas that would go to the media when they would not go to the police. The law has to recognise that and value the professional input of the media.
‘The media can fight it in the courts but the worrying prospect is that anxiety and worry leads journalists to continue to destroy material to cover themselves, which is not the way this should work.
‘If there are applications to be made on good grounds because of concerns about possible terrorist offences, and the Crown and police limit the terms of the application to what is strictly necessary, most responsible journalists – when shown the argument and terms – wouldn’t have a problem with it.
‘The problem is the mistrust that arises where there is no real argument in support of the application which is a wide-ranging ‘fishing expedition’ on the part of the police.
‘It would be terrible if the result of this was that material was destroyed immediately because you would be losing an archive of journalistic material. And that [archive] could very useful for police later on – it could be counter-productive.”
Media lawyer Louis Charalambous has been dealing with production order cases in this area of the law for some years. He says: ‘The police have become increasingly invasive of journalisticinvestigations.
‘They appear to be going on unmerited fishing expeditions into this kind of area.
Hassan Butt is well known to parts of the media because he wanted to say: ‘I was once a terrorist and now I want to show people the correct way’.
‘The problem is that when you go under the Terrorism Act you can just say ‘terrorism’ and most judges will just say: ‘Well, we can’t see any reason not to grant the order’.”
‘Some people are prepared to keep it confined to PACE so it’s on notice what the parameters are but some go under the TA and what you get there is: ‘This has happened, there’s the order, and you’ve got to apply to set it aside’.
‘If you have a preponderance of decisions against the media, the media’s going to feel hampered, their Article 10 rights [of the Human Rights Act] are going to be trampled and if you involve lawyers it costs a lot of money, especially if you go to appeal.
‘I’m pretty appalled by it and it’s been increasing in the past few years.”