Guidance from the Courts concerning the disclosure of journalists’ sources are few and far between, so a recent case in which West Midlands Police (WMP) applied for a production order against journalist and former MP Chris Mullin is noteworthy – after all, as journalists are acutely aware, the protection of confidential sources is central to protecting journalistic integrity.

This case concerned an application for a production order by WMP against Mr Mullin under the Terrorism Act 2000.

Mr Mullin is a veteran journalist who was heavily involved in investigating the Birmingham Pub bombings in 1974, and has published a book and autobiography on the topic.

In the course of his investigations Mr Mullin spoke to several sources, one of whom confessed to involvement in the murders, and another of whom he strongly believed was involved.

However, Mr Mullin’s main aim in undertaking his investigations was actually to prove that the “Birmingham Six” who were jailed for the bombings in 1975, were in fact innocent. The convictions of the six men were eventually overturned and the IRA claimed responsibility for the attacks.

In the course of his investigations, Mr Mullin interviewed many sources and kept notes of some of the interviews.

Mr Mullin handed a vast amount of information to the police over the course of their many investigations into the bombings, but in a redacted format in order to protect the identity of those he interviewed who were still alive – a promise he made to the sources in order to secure the interviews.

However, WMP believed that the redacted information was key to its investigation because it believed that when Mr Mullin interviewed one of the potential suspects, he confirmed the identity of another suspect as being the person who planted the bombs in the Birmingham pubs.

In deciding whether to compel disclosure of the material in question, the court had three questions to consider:

1. Firstly, did Mr Mullin have material in his possession, custody or control which was caught by the wording of the Order sought by WMP? And if so, what material did he have?
2. Secondly, in relation to the material which is the subject of the production order, were there reasonable grounds for believing that the material was likely to be of substantial value to a terrorist investigation?
3. Thirdly, was there a clear and compelling case that there was an overriding public interest that might displace Mr Mullin’s strong Article 10 right to protect his confidential source?

Judge Lucraft QC found that Mr Mullin did have such material in his possession, and that there were reasonable grounds to believe that the material would be of substantial value to the investigation into the bombings.

However, on the third question, Judge Lucraft found that there was not an overriding public interest in compelling disclosure and Mr Mullin’s right to protect his source had not been displaced.

Why did Judge Lucraft QC reach this decision?

As the Terrorism Act makes clear, the court has discretion as to whether it should allow or refuse an application such as this. In this instance, it all came down to a balancing exercise between the public interest in aiding WMP’s investigation into a significant terrorist event, versus the public interest in protecting confidential journalistic sources.

WMP argued that in this case, where refusing the order could allow the murder of 21 people to go unsolved, the overriding public interest outweighed the protection of journalistic sources. They also submitted that the application was narrow, targeted and proportionate and should be granted because the families of the deceased are yet to get justice.

However, Mr Mullin’s representatives argued, and Judge Lucraft QC accepted, that in this case, Mr Mullin’s interest in protecting the identity of the sources was particularly strong because the journalism was of the “highest public interest value exposing serious failings on the part of the criminal justice system which resulted in the wrongful conviction of six innocent men”.

Judge Lucraft QC concluded that whilst he could see the benefit to the terrorist investigation if the  material was obtained, having regard to the circumstances in which Mr Mullin had the material in his possession, he did not find that the material should be produced or access given.

Interestingly, Judge Lucraft QC also noted that even if all three conditions had been made out  by WMP, he would still not have exercised his discretion to grant the order sought by WMP in all the circumstances.

This case represents an historic win for journalism and the fundamental principle of protecting sources.

Whilst this case turned on its own very unusual set of facts, it is a prime example of the courts recognising the importance of journalists being able to protect their sources in order to carry out their role as a watchdog and investigator of impropriety.