A sentence of bitter irony

eddie — Wed, 22 Oct 2008 22:25:14 +0000

The last words in the 83-page judgment delivered on Wednesday by the law lords in the case of the Chagossian islanders are those of Richard II: “It boots thee not to be compassionate; after our sentence plaining comes too late.”

Certainly, there is something of a Shakespearean tragedy in what has happened to the Chagossian islanders since they were evicted from their homes to make way for the US military base on Diego Garcia nearly 40 years ago. And certainly, there has been nothing compassionate about the behaviour of the British government in the treatment of them over the years.

The law lords have now ruled, by the narrowest of margins, that the Chagossians have no right to return. While there remains the possibility of taking the case to the European court of human rights, there is no disguising the fact that the lords’ ruling is a bitter blow to the islanders. They had arrived at the lords with the wind of two favourable judgments, from the divisional and appeal courts, in their sails – and some had even pledged that they would set off by sea before Christmas had the ruling gone their way.

It was in 2000 that the then foreign secretary, Robin Cook, made it clear that he supported the islanders’ case. It seemed only a matter of time before a small number of them returned to see if it was possible to recreate what was described by their lawyer, Richard Gifford, as “paradise lost”. Then came 9/11 and the insistence of the US that Diego Garcia, the island at the heart of the archipelago, was an essential “linchpin” in their security network, vital for the bombing missions on Afghanistan and, more recently, Iraq.

What the Americans had not said was that that Diego Garcia would also be used for “rendering” prisoners en route to Guantánamo Bay.

Almost everyone agrees that the Chagossians were shabbily treated, to say the least, but there does not seem to be anyone in government prepared to right the wrong. Robin Cook and that “ethical” foreign policy now seem as remote as the islands themselves.

A Source for Concern

Ellie Keen — Mon, 19 May 2008 11:12:41 +0000

What protection from the law do journalists have when the police demand to see their notes, their footage, their source material? That is the question that will be asked this week in what is being seen as a precedent-setting case for the rights of reporters covering terrorism and security affairs.

On Wednesday, the 27-year-old freelance journalist Shiv Malik will be in the high court for a judicial review of attempts by the Greater Manchester police to obtain his source material relating to the former Islamist radical Hassan Butt, whom he had interviewed at length for his as-yet unpublished book, Leaving al-Qaida. Butt, 28, who had claimed in the past to have been a spokesman for the Islamist group al-Muhajiroun, but says he is now opposed to violence and extremism, was arrested under the Terrorism Act at Manchester airport on May 9 as he was about to leave for Lahore, Pakistan. He is still in custody and police have been given an extension until Wednesday to question him.

In March, Malik was visited at his home in London by officers from Greater Manchester police, who demanded access to the material for the book he was working on for the publisher Constable & Robinson. The book was due to come out this spring but publication has been delayed, pending the result of the court case.

Since the initial disclosure order, GMP have issued similar orders to the BBC, CBS, Prospect magazine and the Sunday Times, regarding related material. Those organisations were all due in court in Manchester this week but the case has been put back to May 23 in light of this week’s judicial review.

“I think what was surprising was that the police appeared at my door without any warning,” said Malik of the visit. “It seems as though they are handing out those production orders very readily, like sweets. They said that what prompted it [the visit] was the imminent publication of the book.”

Perilous state

Malik added that he believed the case had major implications for any journalist working in the area. “The issue for all journalists is their freedom to operate in the field of terrorism,” he said. “It puts this field of journalism in a perilous state.”

Greater Manchester police are not being specific about why they are seeking the material from so many sources. A GMP spokesperson said: “This is part of an ongoing investigation and we are unable to provide further details. However, as with all criminal investigations, the police require assistance from people who may have relevant information.”

Malik, who has worked on a freelance basis for the New Statesman, the BBC and the Independent on Sunday – for whom he wrote about the former Guardian trainee Dilpazier Aslam’s membership of the radical group Hizb ut-Tahrir – is being supported in his challenge to the order by the National Union of Journalists. The union will be picking up the bill, estimated at around £100,000, as Malik is a freelancer.

“We feel that this [the disclosure order] is a fundamental threat to the media and it has implications for all journalists and for investigative journalism in particular,” said Jeremy Dear, the NUJ general secretary. “It is an attempt to turn journalists into informers and is part of an increasing intolerance towards dissent. Our real fear is the chilling impact it could have on coverage of this area.” He said that it was the first such case to be brought under the 2000 Terrorism Act and was “unique”. Such cases were previously brought under the 1984 Police and Criminal Evidence Act (Pace).

Butt has been a controversial figure for several years, making inflammatory statements in media interviews. In one interview with Prospect, he said: “I would agree to being called a radical and one day I may even be called a terrorist, if Allah permits me. That is something it would be an honour to be called.” But he has renounced this and now claims to be anxious to make amends for his past statements.

Others issued with orders by GMP have expressed their bemusement. David Goodhart, editor of Prospect magazine, says: “I don’t know anything about the rights and wrongs of the Hassan Butt case but the silly thing about this is they [the police] seemed to have reached for a production order as a first resort. They clearly had no idea what sort of an organisation we are and they appeared to have done absolutely no research.”

Goodhart said that the police appeared to have contacted Prospect after they had read an article by the journalist Aatish Taseer on the internet and discovered that, if they wanted to read more, they would have to subscribe. He said that a phone call to his office would have told them that the magazine retained no source material. “We are entirely written by freelancers and the chances that we have anything of value here is zero,” he says. “I am happy to give them anything that is in the public domain, and I am prepared to help [the police] provided that it does not conflict with protecting sources, but they are jumping in far too quickly with these production orders. This is meant to be a last resort.”

The 1984 Police and Criminal Evidence Act provided some protection for journalistic material held in confidence and stipulated that an order could only be granted if certain conditions were met: that the material was likely to be “of substantial value” and that there were “reasonable grounds for believing that it is in the public interest that the material should be produced”. This was aimed at preventing the police from engaging in fishing expeditions whereby they would seek the notebooks, tapes or film footage of any journalist interviewing anyone suspected of having links with terrorism, however tangential.

Journalists are covered to a certain extent by Article 10 of the European Convention on Human Rights, which protects the right to freedom of expression. With the incorporation of the convention into domestic law, under the Human Rights Act of 1998, the right is now expressly guaranteed. However, that right is not absolute: interferences with the right to freedom of expression may be permitted “if they are prescribed by law, pursue a legitimate aim and are necessary in a democratic society, that is, satisfy a pressing social need”.

The grounds for such interference include “national security, territorial integrity, public safety, the prevention of disorder or crime, the protection of health or morals, the protection of the reputation or rights of others, the prevention of the disclosure of information received in confidence, and maintaining the authority and impartiality of the judiciary”. It is the vague nature of those exceptions which are likely to be the subject of debate during this week’s case and over the coming weeks.

The NUJ has backed other reporters in similar court cases in the past, including Robin Ackroyd, who last year won a seven-year legal battle with the Mersey Care NHS Trust which had been trying to get him to name the source who leaked him confidential medical records about Moors murderer Ian Brady’s hunger strike for a Daily Mirror article in 1999. Ackroyd refused to reveal his source and was eventually backed by the courts. But it can be an expensive business. On that occasion, the bill would have been around £500,000 but costs were paid by the trust because Ackroyd was vindicated.

In another similar case, in 2000, the appeal court dismissed attempts by the police and state prosecutors to order the Guardian and the Observer to hand over information they might possess relating to the former MI5 officer, David Shayler, including a plot to assassinate the Libyan leader, Colonel Gadafy. On that occasion, Lord Justice Judge told the court: “Inconvenient or embarrassing revelations, whether for the security services or for public authorities, should not be suppressed”. Otherwise, he added, “legitimate inquiry and discussion” and the “safety valve of effective investigative journalism” would be “discouraged, perhaps stifled”.

He criticised the failure of the police special branch to explain convincingly why they needed an emailed letter sent to the Guardian and any notes in the possession of Martin Bright, then an Observer journalist, relating to Shayler’s allegations about the Gadafy plot. Journalists and media lawyers will be watching with interest to see what rulings are made as a result of this week’s case.

There is clearly tension between the police and the media over this sort of coverage. Last week, the makers of Channel 4’s Dispatches investigation, Undercover Mosque, won a libel action against West Midlands police and the Crown Prosecution Service over false allegations that they had faked aspects of the documentary.

Nick Armstrong, the solicitor for the programme makers, said that he believed it was the first time the CPS had been sued for libel.

The programme, about Islamic preachers, was made by Hardcash Productions and went undercover in several mosques in the Midlands. It showed preachers calling for homosexuals to be killed, espousing male supremacy, condemning non-Muslims and predicting jihad. The police referred the case to Ofcom after investigating 56 hours of rushes from the documentary for evidence against the preachers.

Then, to the surprise of the programme makers and C4, the West Midlands police issued a press release eight months after the programme had been transmitted accusing its producers of selective editing and distortion. That led to the libel action, the proceeds of which have been donated to charity. It certainly looks as though this area will continue to be a legal minefield.

Duncan Campbell | ukwatch.net

A sentence of bitter irony

A Source for Concern