QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE PITCHFORD
MR JUSTICE OUSELEY
| Shiv Malik
|- and -
|(1) Manchester Crown Court - (2) Chief Constable of Greater Manchester Police
(3) Constable and Robinson Ltd
(4) Attorney General
First Interested Party
Second Interested Party
Andrew Edis QC and Anne Whyte (instructed by Greater Manchester Police) for the Defendant
Andrew Nicol QC (instructed by the Treasury Solicitor) for the Attorney-General as an Interested Party
First Interested Party did not appear and was not represented
Hearing dates: 21 and 22 May 2008
Crown Copyright ©
Lord Justice Dyson: this is the judgment of the court.
"I am satisfied that you are the person who appears to be in possession of the material to which this application relates, namely:
All material in his possession concerning:-
(1) The terrorist activities of Hassan Butt and his membership of Al-Qaeda or Al-Muhajiroun or any other similar organisations;
(3) The drafts and source material for the book "Leaving Al-Qaeda" by Hassan Butt and Shiv Malik including all material provided by Hassan Butt to Shiv Malik containing information about his activities in pursuit of the aims of Al-Qaeda or the Islamist jihad of which Al-Qaeda is part.
(4) All images associated with the publication, whether intended for use or otherwise; audio and video recordings, digital and analogue; notes made regardless of format and source material; any financial information relating to payments made by or on behalf of Mr. Malik to Mr. Butt or on his behalf inclusive of amount paid, dates and method of payment
and that this material consists of, or includes such material as is mentioned in sub-paragraph (2) of paragraph 5 of Schedule 5 and that access conditions specified in paragraph 6 of Schedule 5, are fulfilled in relation thereto.
Accordingly, YOUR ARE HEREBY ORDERED TO:
produce the said material to a Constable for him to take away .
not later than
the end of the period of 9 days from the date of this order."
The relevant legislation
"6. (1) A Circuit judge may grant an application under paragraph 5 if satisfied-
(a) that the material to which the application relates consists of or includes excluded material or special procedure material,
(b) that it does not include items subject to legal privilege, and
(c) that the conditions in sub-paragraphs (2) and (3) are satisfied in respect of that material.
(2) The first condition is that-
(a) the order is sought for the purposes of a terrorist investigation, and
(b) there are reasonable grounds for believing that the material is likely to be of substantial value, whether by itself or together with other material, to a terrorist investigation.
(3) The second condition is that there are reasonable grounds for believing that it is in the public interest that the material should be produced or that access to it should be given having regard-
(a) to the benefit likely to accrue to a terrorist investigation if the material is obtained, and
(b) to the circumstances under which the person concerned has any of the material in his possession, custody or power."
Like the judge and counsel, we shall refer to the conditions in subparagraphs (2) and (3) as "the access conditions".
"(1) An order under paragraph 5-
(a) shall not confer any right to production of, or access to, items subject to legal privilege, and
(b) shall have effect notwithstanding any restriction on the disclosure of information imposed by statute or otherwise."
"(a) the commission, preparation or instigation of acts of terrorism,
(b) an act which appears to have been done for the purposes of terrorism,
(c) the resources of a proscribed organisation,
(d) the possibility of making an order under section 3(3), or
(e) the commission, preparation or instigation of an offence under this Act."
The events leading to the judgment
"Leaving Al-Qaeda charts Hassan Butt's early life and Jihadi career as it leads up to the dark secret at the heart of this compelling book a full account of terrorist activities that are undertaken in Pakistan. Along with this account of Butt's life, his motivations, evolving beliefs, regrets, guilt, and his later re-establishment of moral purpose, this modern story of repentance re-examines the nature of identity in Western society, the state of multiculturism in Britain and the inner-workings of the international terror network. Hassan Butt writes: Taking the life of an innocent civilian can be done in an instant, but building your worldview around the justification of murder takes years. In my case it took six. From the violence, deprivation and racism of my youth, I slipped easily into the radical Islamic movements that welcomed the tension between the foreign blood in my veins and the native soil beneath my feet. They promised to use my religion, Islam, to change the world for the better. And in those early years, I was filled with the confidence and sense belonging of those who defy the world in the name of truth. That was until I found myself planning and funding terrorism for one of Al-Qaeda's associates. Leaving Al-Qaeda took another four years. It also meant asking myself questions that I had long ignored and coming to terms with the fact that I had spent a decade killing for killing's sake. Now, having left, I live under constant threat that my own life will be taken. Nevertheless, if the world wants to stop terrorism from growing within its long forgotten ghettos and dark backwaters, then this story must be told."
The report contains an account by Hassan Butt. There is reference to a fund-raising BBQ where £3500 was raised for jihadi training camps. Among the guests present were Mohammed Quayyum Khan (who is alleged to have sent Mohammed Siddique Khan to the Malakand training camp for Al-Qaeda) and Kazi Rahman east London crew leader now serving a nine-year custodial prison sentence for attempting to purchase firearms. Hassan Butt is attributed the following quotes:-
"People also came up to me during the evening and asked if I knew how to get training".
Mohammed Junaid Barbar is also present and after the BBQ he and Hassan Butt drove to Mohammed Siddique Khan's home in Leeds. "
"Consequently, you will hold material which is likely to be of substantial value, whether by itself or together with other material, to this terrorism investigation since there are reasonable grounds for believing that it will:
Provide evidence of Hassan Butt's ability to facilitate training for Al-Qaeda sympathizers;
Demonstrate Hassan Butt's association with convicted terrorists/criminals/suspects and his influence amongst this group;
Demonstrate Hassan Butt's role and activities in facilitating support for individuals fighting coalition forces in Afghanistan; and
there are reasonable grounds for believing that it is in the public interest that the GMP CTU has access to that material.
Furthermore, there is an ongoing prosecution of a close associate of Hassan Butt, namely [A], who is charged with offences under the Terrorism Act 2000 (two counts of collection of information for terrorist purposes, possession of article for terrorist purposes and attendance at a place used for terrorist training). This case is scheduled to come to trial later this year. Within this matter a defence statement has been served which contends that Hassan Butt is the instigator of certain actions and that the Defendant's contacts and actions have been in order to facilitate media reports/productions. Since you have material to this effect, accordingly, this same material that you hold is or may be relevant to the forthcoming criminal trial and is required by the prosecution in order to prepare for this impending trial. At the very least, it will become unused material, which may be relevant to the Defence, and GMP therefore has statutory obligations in relation to its preservation."
"Should the order be granted the effect on my work would be dramatic. I will not be able to complete the book which will put me in breach of my contractual obligations which will have the knock on effect of causing me to fall into serious debt. Furthermore, once it becomes known that I have handed over confidential material in my possession to the state and compromised a source who has trusted me for many years, my ability to function as an investigative journalist in this extremely sensitive and important area will be brought to an abrupt end. Revealing entire contact lists, confidential notes etc as contemplated by the proposed Order will have a devastating effect upon my hard earned reputation as a trusted and respected journalist. Most importantly, should it become known that I have been made to reveal my entire contacts list and other confidential information, my personal safety and that of my wife and my family will be put in extreme danger. Any protection afforded me previously as an independent journalist would be lost."
The open judgment
" As against the publishers, I make the order in the terms sought. As against Mr. Malik, I am of the opinion that in certain respects the order sought is or may prove to have been too widely drawn. I do not wish to compromise the investigation of the Police or the public interest in discouraging serious crime and in detecting and bringing to justice those who are responsible for it any more than the rights of Mr. Malik and I will do what can reasonably and properly be done without prejudice to those competing rights to preserve the anonymity of his contacts as opposed to that of Mr. Butt.
For the moment therefore, I am minded to grant the order in the terms of paragraphs 1 to 3 of the draft order, and I am minded to grant the order insofar as it is set out in paragraph 4, in the following terms: all images associated with the publication, whether intended for use or otherwise; audio and video recordings, digital and analogue; notes made regardless of format and source material; any financial information relating to payments made by or on behalf of Mr. Malik to Mr. Butt or on his behalf inclusive of amount paid, dates and method of payment.
It follows that for the moment, at any rate, I do not think it appropriate, having regard to the balancing exercise which I have to perform, to require the Respondent to give up contact lists of all persons featured in the book or contractual agreements, arrangements and negotiations in respect of Mr. Butt, including off-the record or unofficial agreements.
What I propose to do is to adjourn for a period of three months the application in relation to the remainder of the material sought, presupposing that any appeal, should there be one, will have been resolved before then."
Events since the judgment
The grounds of challenge
Two preliminary points
The first access condition
The second access condition
The exercise of discretion and the Convention
"Article 10 Freedom of expression
1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2 The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
" .must be convincingly established by a compelling countervailing consideration, and the means employed must be proportionate to the end sought to be achieved .one of the contemporary functions of the media is investigative journalism. This activity, as much as the traditional activities of reporting and commenting, is part of the vital role of the press and the media generally": Reynolds v Times Newspapers Ltd  2 AC 127, 200F per Lord Nicholls.
Article 6 and the privilege against incrimination
"(1) This section applies where a person-
(a) believes or suspects that another person has committed an offence under any of sections 15 to 18, and
(b) bases his belief or suspicion on information which comes to his attention in the course of a trade, profession, business or employment.
(1A) But this section does not apply if the information came to the person in the course of a business in the regulated sector.
(2) The person commits an offence if he does not disclose to a constable as soon as is reasonably practicable-
(a) his belief or suspicion, and
(b) the information on which it is based.
(3) It is a defence for a person charged with an offence under subsection (2) to prove that he had a reasonable excuse for not making the disclosure".
"(1) This section applies where a person has information which he knows or believes might be of material assistance-
(a) in preventing the commission by another person of an act of terrorism, or
(b) in securing the apprehension, prosecution or conviction of another person, in the United Kingdom, for an offence involving the commission, preparation or instigation of an act of terrorism.
(2) The person commits an offence if he does not disclose the information as soon as reasonably practicable in accordance with subsection (3).
(3) Disclosure is in accordance with this subsection if it is made-
(a) in England and Wales, to a constable,
(4) it is a defence for a person charged with an offence under subsection (2) to prove that he had a reasonable excuse for not making the disclosure."
21. To the extent that the police may contend that the Respondent might himself have unwittingly committed any criminal offence by his contact with Hassan Butt or otherwise, the Respondent relies on the privilege against self-incrimination. In its exercise of discretion, the Court is required to take into account the fact that a possible consequence of the order sought by the Claimant would be the danger of self-incrimination (ex p. Bright, )."
"MR. BAILIN: Rather than infringe upon Article 10, and if the source is known, it makes it no less egregious because in this case the effect is the same. If Mr. Malik is required to reveal all the unpublished research material with the contacts, his duty of confidence is so undermined that it is as bad as if he were required to disclose the identity of the source. Furthermore, there may be contacts included which are unknown to the police, other than Mr. Butt. There seems to be some suggestion that perhaps they were active terrorists. Well, if they are active terrorists, then Mr. Malik commits a criminal offence ..
JUDGE GOLDSTONE: No, the prosecution are saying there is only one contact or source named, or not named, but by implication referred to and that is Mr. Butt, and that is at paragraph 13.
MR. BAILIN: Well, your Honour, to the extent that they rely upon the drafting of that statement, your Honour, clearly I cannot fill in every gaps.
JUDGE GOLDSTONE: No.
MR. BAILIN: But the material which is sought includes more sources than Mr. Butt. That is our case, your Honour."
The width of the production order
"(1) Subject to (2) below, all material in your possession provided to you by Hassan Butt (including any audio/video recordings of Hassan Butt and any written notes of what Hassan Butt said to you):;
(2) You are not required to provide any material which would or might (a) reveal or confirm the identity of any confidential source (b) reveal the content of any confidential material from any source apart from Hassan Butt."
"All records of information provided to Shiv Malik by Hassan Butt whether such records are tape recordings of interviews, transcripts of interviews, notes of discussions, written material supplied by Hassan Butt to Shiv Malik or any records of any kind.
The Order requires production of material including information about third parties provided to Shiv Malik by Hassan Butt. It does not require production of any information provided to Shiv Malik by any other person."
Breach of the duty of disclosure