Freelance journalist Shiv Malik must hand over his source material on terrorism to the police, the High Court ruled last week, slamming Malik for daring to take the case to a judicial review – and forcing him to pay costs.
Malik’s crucial test case succeeded in reining in the police, who had raided his house in March in search of his notes. The court’s main ruling two weeks ago spelt out that the police have no right to conduct speculative “fishing expeditions” to force journalists to hand over their research.
But the case has starkly revealed how the terror laws mean journalists must go to the authorities if they suspect that a source has information about “terrorism”.
Given the broad-brush definition of terrorism in the Terrorism Act 2006 – which includes “glorifying” terror and possessing terrorist materials without the intention of committing an offence – the latest ruling means many Muslims will perceive journalists as a direct extension of the police. Anyone with genuine information about the terrorist milieu will have to weigh up the risk that talking to a reporter is like talking to the cops.
The court’s first ruling, however, was welcomed by Malik, who stressed how it circumscribed police powers. He told Free Press: “It’s a victory for common sense in that, from the wider perspective, we can protect confidential sources – that’s a big victory.
“The High Court said production orders are allowed, but in my case they really do have to be precisely drafted, the police can’t just go on fishing expeditions. Protecting journalists’ sources should be paramount, and now the High Court has said even in terrorism cases journalists are allowed to maintain confidential sources.”
The NUJ also emphasised how the initial ruling sent a clear signal to police that they can’t see journalists as “simply another tool of intelligence gathering”. Speaking outside the High Court after the ruling was announced, general secretary Jeremy Dear said that Greater Manchester Police had “failed to recognise the special nature of journalistic material. Rather than take the time to consider what information they really needed, the police went fishing, hoping a general order would dredge up something of use.”
Malik is an established freelance who has written extensively on terrorism for national newspapers and magazines. He is working on a book with the former Islamist Hassan Butt, who is linked to a forthcoming terrorism trail in Manchester in the autumn. Greater Manchester Police, who raided Malik’s home in March in pursuit of his notes, have also served draft production orders on the BBC, the Sunday Times, Prospect magazine and CBS demanding that they hand over materials they believe to be connected with the case.
Malik’s High Court appeal is the first major test of the application to journalism of the Terrorism Act 2000, sections 19 and 38B (the latter was added in 2001) of which make it a criminal offence to withhold information. Formerly police had to satisfy a judge that the information they sought from a journalist was closely related to a “serious offence” – the 2000 Act contains no such restriction.
Malik said: “This makes it almost impossible for journalists working in the field of terrorism. It’s been a scythe hanging over our necks since it was enacted in 2000. Journalists in the field have been breaking the law and hoping they won’t get prosecuted.”
He believes the issue came to a head because the police decided he would be in no position to defend himself, so they imposed a wide-ranging production order. But the NUJ and the Sunday Times agreed to pay his costs.
There is a maliciousness in the police attack on Malik. As the court ruling states, the police interest in Malik is in what he can tell them about Hassan Butt, and not in whether he has committed offences under sections 19 or 38B. However, according to the Court, on May 9 Butt was arrested and extensively interviewed by police; he told them his earlier public statements about involvement in Al-Qaeda were untrue. He has now been released without charge.
The case shows that journalists face enormous difficulties researching the roots of Islamist extremism in Britain. As a result, policies aimed at preventing terrorism will come to rely even further on the shadowy secret services and the ill-informed prejudices of the Murdoch press.
Moreover, the line between legitimate support for resistance to western intervention in Iraq and Afghanistan and supporting “terrorism” will be further blurred, increasing the stigma attached to the Muslim community, where hostility to government foreign policy is strongest.
A range of high profile figures and organisations have supported Malik’s case. On March 19 leading figures from journalism and civil liberties organisations, including Jonathan Dimbleby and Shami Chakrabarti, signed a letter to the Times warning of its implications.
Dave Crouch
A version of this article will shortly appear in Free Press, www.cpbf.org.uk
