Full case report
Malik v Manchester Crown Court & Anor
Reference  EWHC 1362 (Admin)
Court Administrative Court
Judge Dyson LJ and Pitchford and Ouseley JJ
Date of Judgment 19 Jun 2008
Production Order – Terrorism Act 2000 – Judicial review – Journalistic material – Freedom of expression – Protection of sources – Articles 2, 3, 10, ECHR – Privilege against self-incrimination – Special advocates – Natural justice
C, a freelance journalist, sought judicial review in respect of the granting of a production order pursuant to the Terrorism Act 2000 Sch 5, under which he was required to provide journalistic material to the Manchester police. The material related to a book which C was writing in colloboration with B, who claimed at the time to be an ex-associate of Al-Quaeda. Under the Act the court had to be satisfied that (1) the order was sought for the purposes of a terrorist investigation and that there were reasonable grounds for believing that the material was likely to be of substantial value, whether by itself or together with other material, to a terrorist investigation and (2) production of the material was in the public interest.
(1) Did the judge err in finding that the statutory conditions had been met?
(2) Did the judge fail to exercise his discretion compatibly with Article 10?
(3) Did the order infringe C’s Article 2 and 3 EHCR rights?
(4) Did the order destroy C’s privilege against self-incrimination?
(5) Were the terms of the order too wide?
(6) Were the closed hearing proceedings unfair?
(1) The evidence submitted by the police must explain why there were reasonable grounds for believing that the material is likely to be of substantial value- a bare assertion would not suffice. There was no requirement for the police to prove that the material was in fact likely to be of substantial value, or that the material was “necessary” for conducting an investigation.
(2) The judge had been entitled to reach the decision that the seriousness of the activities and the likely benefit from disclosure justified the interference with C’s Art 10 rights.
(3) The disclosure did not put C or his family at risk.
(4) C had not properly raised the issue of self-incrimination before the judge, and as the issue was fact sensitive it was not appropriate to perform this exercise as part of a judicial review.
(5) The terms of the order were too wide.
(6) C had not requested a special advocate and could not have given evidence on the issues at the closed hearing.
The court found that the terms of the order could potentially lead to the identification of sources other than B and were therefore too wide. Whilst this represents a partial success for the claimant, the judgment clearly shows the difficulty a journalist or publisher faces when trying to resist a production order under the Act. Although a fact sensitive approach should be adopted, it appears that Article 10 carries little weight against the might of the perceived public interest in anti-terrorism investigations: “Important though the right of a journalist to protect his sources undoubtedly is, it should surely yield to a duty to disclose if the material emanating from those sources might well avoid a miscarriage of justice.”
Bindmans LLP for the Claimant
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