Malik v Manchester Crown Court & Ors

A court considering a production order for confidential journalistic material in a terrorist investigation must itself be satisfied that there are reasonable grounds for believing the material will probably have significant value. Necessity forms no part of that statutory condition.

The court must then apply close scrutiny and strike a proportionate balance between effective investigation, the seriousness of the suspected activity and protection of journalistic sources. The police must provide a clear and compelling justification. An order should proceed incrementally and protect unrelated confidential sources.

The privilege against self-incrimination is not abrogated by Terrorism Act 2000 Schedule 5. Where the privilege applies to pre-existing documents, it is an important discretionary consideration. Appointment of a special advocate outside a statutory scheme remains exceptional and a last resort.

A freelance investigative journalist was collaborating with Hassan Butt on a book concerning Butt’s claimed involvement in terrorism. The Chief Constable obtained a Terrorism Act 2000 Schedule 5 production order requiring extensive drafts, source material, recordings, notes, images and financial information. The application was heard partly in open court and partly in a closed hearing without a special advocate.

The journalist sought judicial review, contending that the statutory access conditions were unmet, the order disproportionately interfered with Convention rights, it exposed him to self-incrimination, its scope was excessive, the closed procedure was unfair and the police had breached their disclosure duty.

The central issues were whether the judge lawfully decided that a production order was justified in principle, whether the closed procedure was fair, and whether the order was framed more widely than its investigative purpose and the protection of confidential sources permitted.

1. The claim succeeded only as to the order’s width. The Crown Court judge lawfully concluded that a production order was justified in principle, but the order extended beyond material provided by Hassan Butt and could reveal other confidential sources. The precise replacement terms were reserved for further submissions.

2. Under paragraph 6(2) of Schedule 5 to the Terrorism Act 2000, “likely” means probable and “substantial value” means significant value. The judge need only find reasonable grounds for believing that the material will probably have that value. Belief, rather than mere suspicion, is required, and the applicant must explain its basis. The provision does not impose a separate necessity test.

3. A Schedule 5 discretion must be exercised compatibly with article 10. Considerable weight must be given to journalistic freedom and source protection, and the applicant must establish a clear and compelling justification for interference. Relevant considerations include the gravity of the suspected activity, the likely investigative benefit, protection of sources and, where applicable, whether disclosure may prevent a miscarriage of justice. The judge permissibly found that the extreme seriousness of the terrorist investigations and the expected benefit justified an order confined to Butt’s material.

4. The self-incrimination challenge failed because the alleged risks under sections 19 and 38B had not been properly raised before the Crown Court. A represented party cannot ordinarily challenge a discretionary decision for failure to consider a ground which that party did not put before the decision-maker. The judge had no duty to identify the issue of his own motion.

   Obiter, Schedule 5 does not abrogate the common-law privilege against self-incrimination. Pending authoritative resolution of whether that privilege applies to pre-existing documents, a circuit judge should treat it as an important discretionary factor. Relevant matters include investigative benefit and alternative means of obtaining or redacting the material, the importance of the privilege, offence gravity, prosecution risk and possible immunity, and the trial court’s power to exclude evidence under section 78 of Police and Criminal Evidence Act 1984.

5. The order was disproportionate in scope because drafts and source material could identify people other than Butt. Its terms had to reflect the judge’s intended incremental approach and preserve unrelated confidential sources.

6. A court may request a special advocate outside a statutory scheme, but only exceptionally and as a last resort. Relevant matters include the seriousness of the issue, the protection afforded by the applicant’s disclosure duty and the judge’s own scrutiny, and whether a special advocate could materially assist. No request had been made below, and the closed material concerned sensitive police information which the experienced judge could test. The procedure was fair and did not violate article 6.

• High Court (Administrative Court): On judicial review, upheld the decision to make a production order in principle but held that its terms were too wide and invited submissions on the replacement wording.
• Manchester Crown Court: Granted a production order under Schedule 5 to the Terrorism Act 2000 following open and closed hearings.