The Secretary of State for Justice’s refusal to grant permission for the BBC to conduct a face-to-face interview with a prisoner, and to later broadcast the interview, amounted to a disproportionate interference with the right to freedom of expression under the European Convention on Human Rights 1950 art.10 where the prisoner’s case was highly exceptional and there was a strong public interest in making the programme.
The BBC applied for judicial review of the defendant secretary of state’s refusal to grant it permission to conduct a face-to-face interview with Babar Ahmad.
Although no charges have been brought against him, Ahmad has been detained at HMP Long Lartin for seven years awaiting extradition to the US on terrorism charges. The BBC and the second claimant journalist, Dominic Casciani, wanted to conduct a face-to-face interview with Ahmad and to broadcast the filmed product of that interview.
The secretary of state, applying his policy on prisoners’ access to the media, refused permission on the basis that a face-to-face interview and its broadcast would pose a risk of causing distress to victims of terrorist acts in the UK and would risk damaging confidence in the criminal justice system.
He stated that Ahmad was able to communicate with the journalist in writing and, in the context of the case, the refusal of permission was proportionate. The claimants argued that the secretary of state’s decision violated the right of freedom of expression under the European Convention on Human Rights 1950 art.10.
Counsel for the claimants also contended that the case was highly exceptional and that the public interest was especially strong in light of the fact that, among other things, (i) Ahmad had been detained without trial for seven years; (ii) the extradition arrangements in the US were controversial; (iii) he had been seriously injured by his arresting officers; (iv) he had had his communications monitored.
The secretary of state’s decision constituted a disproportionate interference with the right to freedom of expression in art.10.
On the evidence in the instant case, the claimants had demonstrated that they did require a face-to-face interview with Ahmad and that they had achieved as much as they could by written correspondence. As to whether the claimants should be permitted to broadcast the product of any interview recorded, the policy on its face admitted the possibility in exceptional cases of permitting such an interview to be recorded for the purpose of broadcasting.
As a result of its unusual facts, the instant case was highly exceptional, and while the secretary of state’s reasoning for the refusal tended to justify the general policy which he was entitled to adopt and maintain, it did not amount to a sufficient justification for the interference with the right to freedom of expression on the particular facts of the case.
His first reason, namely that the restriction was necessary to protect the victims of terrorism from distress, did not stand up to scrutiny. Neither could he rely on the second reason, namely that a broadcast interview with a prisoner would undermine the public’s confidence in the criminal justice system. The circumstances of the case meant that the public interest in the claimants’ right to freedom of expression was especially strong.
Nor had it been shown that a fair balance had been maintained between the right to freedom of expression and the general interests of the community.
The public interest in preventing distress to victims of terrorist offences was important, as was the public interest in maintaining confidence in the criminal justice system. However, there were powerful public interests on the other side of the balance too.
Deok Joo Rhee
There is no doubt that the facts of the case were highly exceptional. However, the judgment indicates that in so far as relates to those detained pending extradition to countries such as the US, the courts may look sympathetically to similar challenges based on Article 10 ECHR.
This is borne out by the court’s rejection of the Secretary of State’s key reasons in support of the application of his policy to the present case. It was held that there could be no distress to specific victims, precisely because Mr Ahmad had not been convicted of any offence. It was of particular significance that he had not been charged in the UK for the same offence because of an adjudged lack of evidence.
(The court’s reliance on the presumption of innocence in Article 6(2) ECHR as informing any public reaction to a broadcast is of particular interest.)
Furthermore, the court’s reasons for rejecting the applicability of the further rationale for the Secretary of State’s policy – that to allow the broadcast would risk undermining confidence in the criminal justice system – while ostensibly based on “the combination of circumstances in the present case” appears rather to illustrate the potential reach of Article 10 ECHR. On the one hand, the court accepted that it was not for it to pronounce on the merits of the controversial extradition arrangements with the US that were applied in Mr Ahmad’s case. On the other, the very importance of Article 10 was said to lie in the fact that the public should be able to engage in such debates, be as fully informed as possible and to make up their own minds.
Deok Joo Rhee, barrister, 11KBW
For the BBC
David Pannick QC, Blackstone Chambers
Tom Cleaver, Blackstone Chambers
For Secretary of State
James Eadie QC, Blackstone Chambers
Martin Chamberlain, Brick Court Chambers
For the interested party Babar Ahmad
Phillippa Kaufmann QC, Doughty Street Chambers
Simon Creighton, Bhatt Murphy