An interesting and encouraging decision has emerged from the Central Criminal Court in London over the past couple of weeks, concerning applications for orders compelling journalists to hand over their notes and materials relating to specific investigations and subsequent articles and broadcasts.
In this case, the Metropolitan Police Service (“the Police”) made an application for a Production Order against four mainstream news outlets: the Times, ITN, Sky News and the BBC.
The application related to interviews conducted by each of the media organisations with Shamima Begum, who left the United Kingdom in 2015 and travelled to Syria in order to live in the “Islamic State” caliphate. Following her arrival in Syria, it was reported that she had married a Dutch IS fighter but her whereabouts after this had been largely unknown.
The media organisations concerned in the present application had tracked her down to a refugee camp in Northern Syria in February 2019 where she was living. By this time, her British citizenship had been revoked and an investigation into her activities pursuant to the Terrorism Act 2000 had been commenced by the Police.
The media organisations had each conducted interviews in which notes were taken and footage recorded in which Ms Begum discussed various matters including an expression of her wish to return to the United Kingdom. Following the interviews, each of the organisations published reports based on the information gathered, though inevitably, in most cases only a small portion of the material gathered was used.
The Police, through their application, sought access to the original notes and parts of the footage that were never broadcast on the basis that they wished to review the material in the context of their continuing investigation into any potential offences that had been committed by Ms Begum following her departure from the United Kingdom in 2015, asserting that they were best placed to review the material and determine whether it was of relevance to their investigation, or not.
The media organisations all resisted this application on the basis that it would undermine the ability of their journalists, and the profession as a whole, to work in areas of foreign conflict safely and further, would jeopardise the public perception of the independence of the press if they were forced to hand over the materials.
In his ruling, Judge Mark Dennis QC confirmed that although he had the power to make such an order, he felt that this was not appropriate in the circumstances, stating firstly that there was no pressing social need to interfere with the Article 10 rights of the media organisations and, secondly, crucially, that there was no real prospect of arresting Ms Begum at this time even if evidence relevant to potential offences was discovered within the material sought.
Recognising the broader issues at stake in the context of the preservation of Article 10 rights, Judge Dennis said “The purported impact remains and has a wider potential impact for journalistic materials and sources and cannot simply be discounted in the face of competing public interest in pursuing police investigation.”.
This decision and the comments of Judge Dennis represent welcome recognition of the important role played by an independent press in a free and democratic society and demonstrate an effective and impartial execution of the balancing test, even in circumstances where issues of national security might be at stake.
However, as with any good story, there is a potential twist in this tale. Although he ruled that the media organisations did not have to deliver up their materials to the Police, Judge Dennis did order that the materials should be lodged with an unnamed firm of solicitors in order that should the situation change in relation to Ms Begum, there would be no risk of the material having been lost in the meantime.
In theory, therefore, should Ms Begum ever re-enter the United Kingdom, the realistic prospects of the authorities being in a position to make an arrest will increase. A fresh application could be lodged by the Police for access to the materials and it is entirely possible that in these hypothetical new circumstances, such an application could well be successful.
As is often the case, it looks like we will just have to watch this space…