Protecting journalistic sources – a rare win

In a “landmark freedom of expression”  judgment handed down on Tuesday 22^nd March 2022, SMB successfully resisted a production order application made by West Midlands Police (“WMP”) directed at our client, Chris Mullin, for excluded material under the Terrorism Act 2000.

SMB Partner and Co-Head of the Media & Communications Disputes team, Louis Charalambous and Paralegal Hannah Gilliland acted in the litigation with Gavin Millar QC of Matrix Chambers as counsel.

Background

On 21^st November 1974 two bombs detonated in terrorist attacks on Birmingham pubs (“the Birmingham Pub Bombings”). The attacks killed 21 people and injured over 220.  In what went on to become one of the worst miscarriages of justice ever seen in British history, six people were wrongly imprisoned for these attacks (“the Birmingham Six”). The Birmingham Six spent nearly 17 years in prison until their convictions were quashed in 1991.

SMB’s client, the former journalist and MP, Chris Mullin, campaigned tirelessly to exonerate the Birmingham Six. He carried out investigations with the aim of using this information to prove their innocence. During these investigations, Chris Mullin interviewed a confidential source who he described in his famous book “Error of Judgement: the Truth about the Birmingham Bombings” (1986), as having admitted to being one of the planters of the bombs. This book was vital to the campaign which eventually led to the release of the Birmingham Six.

Chris Mullin had previously handed over his journalistic notes to WMP in 2019 with redactions to protect the identity of his source. Now, WMP applied for a production order under paragraph 5 Schedule 5 of the Terrorism Act 2000 for the unredacted interview notes from 1986, which would identify his journalistic source.

The Decision

The case before the court was therefore a controversial one. Indeed, as His Honour Judge Mark Lucraft QC outlined in paragraph 61 of his judgment “the offences under investigation here are grave offences”, and yet Chris Mullin’s “journalism in issue was of the highest public interest value exposing serious failings on the part of the criminal justice system which resulted in the wrongful conviction and imprisonment of six innocent men”.

To reach a decision, there were three issues for the court to determine.

First, a possession issue, did our client have within his possession, custody or control material which is caught by the production order wording? On this issue, the court found that he did have such material in his possession.

The second issue was whether there were reasonable grounds for believing that such material would be likely to be of substantial value (either by itself or in addition to other material) to a terrorist investigation. Again, this condition was made out.

The third and final issue, the crux of this application, was whether there was a clear and compelling case that there was an overriding public interest in the production of this material, or in the granting of access to this material, which might displace Chris Mullin’s Article 10 right to protect his confidential journalistic source. The court held that there was not an overriding public interest to displace the journalistic source protection right and the production order was refused.

To quote from the case of Goodwin v UK (1996) 22 EHRR 123, to which the court was taken to, “protection of the sources from which journalists derive information is an essential means of enabling the press to perform its important function of “public watchdog” in a democratic society. If journalists could be compelled to reveal their sources, this would make it much more difficult for them to obtain information and, as a consequence, to inform the public about matters of public interest” [64].

This judgment is a landmark decision for Article 10 freedom of expression cases and highlights the vital importance of a journalist’s right to protect their sources.

The full judgment can be downloaded here.