Shiv Malik: 'Stop police seizing reporters' notes'

Reporting in the age of terror brings new challenges for journalism. There are the moral dilemmas raised by becoming embedded with troops, the responsibilities of representing Muslim communities in a balanced fashion, working around increases in state secrecy – especially after David Keogh and Leo O’Connor were imprisoned for leaking a Government memo to the Daily Mirror – and the continued fight for protection of journalists on the frontline.

For journalists working on terrorism in Britain, like myself, another spectre is hanging quietly over our heads – how will the new batch of terrorism laws affect our ability to protect our sources and, most worryingly, will journalists themselves face prosecution under these laws for withholding information from the authorities? As Press Gazette goes to press, I am about to go to the High Court to defend myself against actions initiated by Greater Manchester Police and the media will by now have found answers to both these questions.

Morning visit

On 19 March, at 7:50am, officers from the GMP Counter Terrorism Unit came to my front door unannounced to serve me with a draft production order relating to a book that I am writing called Leaving Al Qaeda: Inside The Life And Mind Of A British Jihadist, about the life of the former Islamist radical Hassan Butt (pictured, left). For legal reasons I am not allowed to state the exact nature of the order but I can say that it is wide-ranging.

After the police left my flat, I got on the phone to my sources and fellow journalists such

as Martin Bright from the New Statesman (who in the late Nineties had to defend himself in a similar action). They gave me the courage that I needed to battle against the draft order – after all, protection of sources is a totem of all investigative journalism and almost none of my work to date has been possible without the promise of confidentiality.

But the GMP’s arrival at my flat, coming just before the bank holiday meant that I had only two full days to find solicitors and put together funds for a legal defence – not an easy task for a freelance.

It was the most stressful week of my life and although I wasn’t being accused of doing anything wrong, standing in front of a judge

who knows little of your life and yet can dictate your future to you is always a horribly unpleasant experience. So what do these new terror laws permit?

While in Manchester Crown Court – where the initial hearing for the order took place – my lawyers and I discovered that, unlike the well-established provisions ingrained in the Police and Criminal Evidence Act (PACE), schedule five of the Terrorism Act 2000 significantly lowers the protections to journalists who want to maintain the confidentiality of their sources. PACE requires that police have knowledge of a ‘serious arrestable offence’before a court can grant them the power to seize journalistic material.

Under the 2000 Terrorism Act, however, it seems that the police need only begin an investigation without having to demonstrate that a particular offence has been committed, before confiscating a reporter’s notes.

Disregard

In other words, the Government has given the police the power to go on fishing expeditions whenever they choose and GMP is milking this new law for all it is worth.

Demonstrating its complete disregard for the value of journalism in an open society, last week GMP issued a further four draft production orders to the BBC, The Sunday Times, Prospect magazine and the London bureau of American TV network CBS’s show 60 Minutes.

As I told Press Gazette last week, Inspector Knacker appears to be handing them out as if they were goody bags. Hopefully, by the time you read this, there will be a stop to this madness.

But as I prepare to appeal the order granted to the police by Manchester Crown Court, it seems that there is a second legislative spectre – that journalists might themselves be prosecuted for withholding information.

Schedule 19 of the Terrorism Act 2000 states that it is an criminal offence to withhold information that is likely to be useful to a terrorist investigation. In other words, if I am made to hand over my notes to the police, I’ll be

making myself liable to prosecution and some serious jail time because, and this is the rub, I didn’t hand over my notes to the police in the first place.

When asked in court what they had to say about this matter, GMP responded that although they didn’t intend to prosecute me, they could not grant me – and by implication any journalist – immunity. However, if I don’t hand over my notes I’ll be in contempt of court. It is a legislative Catch 22 worthy of Joseph Heller himself, and something will have to give way.

Outside of these legal conundrums, it is worth keeping in mind the broader argument. Jonathan Evans, the head of MI5, called my work ‘essential reading’and as I understand it, the Pentagon is also using my published articles to train their personnel.

I have also received letters from the relatives of people killed in the 7 July bombings saying that reading my work had given them a much better understanding of why their children and siblings had died.

This is not meant as a a boast – such letters are very humbling. Instead, I think it illustrates that when journalists are permitted to work without the heavy hand of the state bearing down upon them, they can reveal information and generate analysis of immense social value, which the authorities cannot themselves produce.

It is this mechanism of trust between reporters and their sources which an open society must always strive to protect, because if we are unable to understand the dangers in our society then we will never be able to put a stop to them.

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