Many would feel that when asked by the police or other state authorities to provide information that relates to the investigation of crime, particularly terrorist crime, that the law and the courts would enforce that request in every case. However, although that might be true of most individuals, the press are protected by a presumption of non-disclosure, making it difficult for the state to order a journalist to disclose their sources, or to commit them for contempt for such refusal (s.10 Contempt of Court Act 1981). That rule is necessary to support the European Court’s jurisprudence: that the protection of journalistic sources is necessary to preserve investigative journalism (Goodwin v United Kingdom (1992) 22 EHRR 123), and that compelling evidence must be provided to overturn that presumption (Worm v Austria (1998) 25 EHRR 454).
With that in mind, the recent decision of the London Recorder in West Midlands Police v Mullin (unreported, 20 March 2022) – that a former government minister turned journalist had the right to keep secret the identity of an alleged IRA terrorist has been heralded as a victory for press freedom. The police used the Terrorism Act 2000 to force Mullin to hand over unredacted notes of an interview he conducted with an individual who, it is alleged, made a full confession to murder, claiming that disclosure was necessary in the public interest. Mullin resisted the order on the grounds that he had promised the individual anonymity, claiming that he destroyed the page of his small red notebook containing the alleged bomber’s name and address to protect his confidential source and that his notebook excluded parts that could identify the alleged bomber because it was his ‘strong ethical duty as a journalist’.
Judge Mark Lucraft allowed the case to be heard in open court in order to promote open justice, although production order hearings are usually held in secret. He then held that although Mullin had material that was likely to be of substantial value to a terrorist investigation, there was not an overriding public interest to displace the right of journalists to protect their sources. This was a positive finding given that orders under this legislation are usually met with a good deal of judicial deference (DPP v Channel Four Television Company Ltd [1993] 2 All ER 517). However, the judge lifted an anonymity order preventing the alleged bomber from being identified, as his identity was already strongly suspected. After the ruling, Mullin claimed that his actions were overwhelmingly in the public interest, reminding us that his investigations had led to the uncovering of police corruption, the quashing of many convictions, and the release of innocent men (the Birmingham 6).
The government has recently championed press freedom, claiming that it will redress the balance between free speech and individual privacy in its plans to reform the Human Rights Act 1998. However, it is difficult to believe that the government, and the Home Secretary in particular, would be in favour of this decision; one which places free speech and journalistic freedom above the investigation and prosecution of (terrorist) crime, and, of course, the rights of victims to seek justice for the killings. It takes a great deal of judicial courage to side with fundamental principles of open justice and press freedom in these cases. However, the presumption that journalists are not ordered to reveal their sources is vital to allow them to investigate matters of public interest and to gain information from witnesses in the knowledge that their identities will not be revealed. Such democratic benefits are not apparent at first blush, yet they are the foundation of democracy and accountability. Let us hope that judges are allowed to continue making these difficult balancing decisions in the future; not just in the area of press freedom, but of fair trial rights, public protest, deportation and the like.
Dr Steve Foster
Associate Professor of Law
You can find out more about Steve’s research through his Pure profile, which sets out his research interests, publications, and contact details. You can also find out more about Coventry University’s research through our dedicated research page