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The Law Column: Judges rebuff principled stand by terror journalist

Senior judges have rebuffed a principled stand taken by freelance journalist Shiv Malik against a production order requiring him to disclose journalistic material.

Backed by the NUJ amid high-profile publicity, Mr Malik sought judicial review of a crown court order that required him to give Greater Manchester Police “all material in his possession” about the terrorism activities of Hassan Butt, a source for his book Leaving Al-Qaeda: Inside the Mind of a British Jihadist.

The journalist’s court battle related to concerns about his and his family’s safety, and his right to receive and impart information freely without state interference, under Article Ten of the European Convention on Human Rights.

It also concerned the important statutory protection for journalists in Section Ten of the Contempt of Court Act 1981, which says no court can require a person to disclose the source of information contained in his publication unless that disclosure is “necessary in the interests of justice or national security or for the prevention of disorder or crime”.

Yet although the senior reviewing judges decided the production order should be trimmed, they appeared to have little patience for the way Mr Malik had comprehensively challenged it.

Lord Justice Dyson said the judicial review proceedings had achieved very little, adding: “It is our view that these proceedings should never have been brought.”

The reason for that sideswipe is probably to be found in the Terrorism Act 2000, which laid down easily-met tests to be satisfied before a production order may be validly granted.

Parliament has decreed in statute that production orders may be granted where, for example, there are merely “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”.

This meant it was always going to be an uphill struggle for Mr Malik to show the order was wrong in principle.

The ruling is a sign that journalists’ privileges in reporting terrorism are extremely limited, and that there is a clear public interest in protecting society from terrorists – something the Terrorism Act 2000 was drafted to promote.


Following media interest generated by the recent copyright infringement case in Belgium regarding Google News’ aggregation service, World Association of Newspapers president Gavin O’Reilly is urging all newspaper publishers to exercise greater control over their online content by joining the Automated Content Access Protocol (ACAP) system.

ACAP is a computer protocol that can communicate copyright permissions and licences in a machine-readable way, so that search engines’ so-called robots and crawlers can be told, in a way that is more articulate than the crude “yes” or “no” commands of previous protocols, how copyright content may and may not be used by others.

Launched in November 2007, the free ACAP service has already been adopted by many book and newspaper publishers in the UK, including Times Online, The Independent, The Sun and Belfast Telegraph.

ACAP is a joint initiative by the European Publishers Council, the World Association of Newspapers and the International Publishers Association.

Conditional Fee Agreements

Journalists will welcome the fact that the Ministry of Justice has ordered a review of Conditional Fee Agreements (CFAs), the controversial fee-hiking arrangements often used in libel and privacy cases.

Media organisations have aired concerns that CFAs are chilling freedom of expression by exposing publishers to the risk of having to pay exorbitant costs if they try to defend claims, but lose.

Defeated publishers have to pay opponents’ legal costs, including a ‘success fee’ charged by their lawyers which can increase costs by as much as 100pc.

In many cases, they also have to pay a hefty premium – often about £10,000 – in respect of their opponents’ costs-insurance policy.

Faced with such financial risks in litigation, publishers sometimes throw in the towel for purely commercial reasons, even when they have an arguable defence.

Announcing the review, the MoJ said it was aware of allegations over the “possible misuse” of CFAs and a “potential adverse impact on the administration of justice”.

Academics will now conduct an evidence-based review to try to improve the current CFA system.

Solicitor Nigel Hanson is a member of Foot Anstey’s media team.
To contact Nigel Hanson or Tony Jaffa telephone 0800 0731 411 or e-mail or


Gord (01/07/2008 21:30:55)
The Sun hasn’t adopted Acap. Nor have the two newspapers in Belgium that took Google to court. Acap’s a dead end inspired by fear.