British Broadcasting Corporation (BBC) & Anor, R (on the application of) v Ahmad (Rev 1)

A restriction on journalistic access to a prisoner engages article 10 where it prevents a face-to-face interview and proposed broadcast. A general policy may pursue legitimate aims, including protecting victims and maintaining confidence in the criminal justice system, but it must remain flexible and be applied proportionately to the particular case.

Where the circumstances are highly exceptional, an absolute refusal may go further than necessary. The decision-maker must consider less restrictive alternatives, including conditions on the content or use of a broadcast, and must maintain a fair balance between the public interest in protecting others and the public interest in receiving information on matters of democratic concern.

The BBC and its home affairs correspondent sought permission to conduct a filmed face-to-face interview with Babar Ahmad, who was detained pending extradition to the United States, and to broadcast extracts from it.

An initial decision permitted a face-to-face interview with audio recording only, subject to a non-broadcast undertaking. The Secretary of State for Justice reviewed that decision and refused permission for any face-to-face interview or broadcast. The claimants sought judicial review, alleging incompatibility with article 10 of the Convention and unlawfulness under section 6(1) of the Human Rights Act 1998. The central issue was whether applying the media-access policy in these circumstances was a proportionate interference with freedom of expression.

1. The claim succeeded. The Secretary of State’s decision of 22 September 2011 was quashed and had to be retaken in accordance with the judgment.
2. Article 10 protects not only the substance of information and ideas but also their form, including journalistic decisions to use a face-to-face television interview. The media exercise these rights on behalf of the public, which has a corresponding interest in receiving information on matters of public concern.
3. The policy in PSI 37/2010 was lawful in principle. It recognised exceptions for a potential miscarriage of justice or another sufficiently strong public interest, and its normal refusal of filmed or broadcast interviews was not absolute. A rigid policy would be unlawful.
4. The Secretary of State’s objectives—protecting victims from distress and maintaining confidence in the criminal justice system—were sufficiently important and rationally connected to the restriction. However, he failed to show that a complete refusal was no more than necessary or that a fair balance had been struck. The case was highly exceptional because of the combination of prolonged detention without charge or trial, the extradition context, the public controversy and the strong public interest in the subject matter.
5. Distress could justify restriction only if it amounted to more than mere offence. The abstract notion of victims of crime could not, on these facts, bear the weight placed upon it. Less restrictive alternatives included permitting a conditional broadcast preventing use of the programme as a platform for a media campaign or material causing distress.
6. The proportionality assessment was a judicial task. The Secretary of State’s view was entitled to appropriate weight, having regard to institutional competence, but did not determine the outcome.