Malik v Manchester Crown Court and others; Re A: Admn 19 Jun 2008

The claimant was a journalist writing about terrorism. He had interviewed a man with past connections with Al-Qaeda, and he now objected to a production order for documents obtained by him in connecion with his writings. The court had acted on documents he had not seen. He said that a special advocate should have been used to allow him to defend the case.
Held: The judge had acted correctly: ‘It is true that a special advocate could test and probe the assessments of the officer, but so too could the judge’
and ‘even in a procedure which is entirely ex parte, the court may consider that the absent party is afforded a sufficient measure of procedural protection by the obligation on the party who is present to lay before the court any material that undermines or qualifies his case or which would assist the absent party. Further, the court itself can be expected to perform a role of testing and probing the case which is presented. All these features may satisfy the court that the procedure is fair and complies with article 6, even without a special advocate. We would wish to place particular emphasis on the duty of the court to test and probe the material that is laid before it in the absence of the person who is affected. Judges who conduct criminal trials routinely perform this role when they hold public interest immunity hearings.
A further relevant question is the extent to which a special advocate is likely to be able to further the absent party’s case before the court. It may not always be possible for the court to form a view as to how far, realistically, a special advocate is likely to be able to advance the party’s case. But sometimes, it is possible. If the court concludes that the special advocate is unlikely to be able to make a significant contribution to the party’s case, that is a relevant factor for the court to weigh in the balance. It should always, however, be borne in mind that it is exceptional to appoint a special advocate outside an applicable statutory scheme. ‘
Dyson LJ discussed the aoplication of Article 10: ‘The correct approach to the article 10 issues as articulated in both the Strasbourg jurisprudence and our domestic law emphasises that (i) the court should attach considerable weight to the nature of the right interfered with when an application is made against a journalist; (ii) the proportionality of any proposed order should be measured and justified against that weight and (iii) a person who applies for an order should provide a clear and compelling case in justification of it.’ and ‘The importance of the right and the weight of the justification required for an interference that compels a journalist to reveal confidential material about or provided by a source has been frequently stated both in Strasbourg and in our courts. It is sufficient to refer to Goodwin v United Kingdom (1996) 22 EHRR 123 at [39] and [40] ‘protection of journalistic sources is one of the basic conditions for press freedom’ and ‘limitations on the confidentiality of journalistic sources call for the most careful scrutiny by the court’; Tillack v Belgium (Application no 20477/05, 27 November 2007) at [53]; John v Express Newspapers [2000] 1 WLR 1931 at [27] where the court of appeal said: ‘Before the courts require journalists to break what a journalist regards as a most important professional obligation to protect a source, the minimum requirement is that other avenues should be explored’; and Ashworth Hospital Authority v MGN Ltd [2002] UKHL 29, [2002] 1 WLR 2033 at [61] where Lord Woolf CJ said that disclosure of a journalist’s sources has a chilling effect on the freedom of the press and that the court will ‘normally protect journalists’ sources’.’

Dyson LJ, Pitchford LJ, Ouseley LJ
[2008] EWHC 1362 (Admin), [2008] 4 ALL ER 403, [2008] UKHRR 1151, [2008] EMLR 19
Terrorism Act 2000 Sch 5, European Convention on Human Rights 10
England and Wales
AppliedC Plc and W v P and Secretary of State for the Home Office and the Attorney General ChD 26-May-2006
The claimant sought damages from the first defendant for breach of copyright. An ex parte search order had been executed, with the defendant asserting his privilege against self-incrimination. As computer disks were examined, potentially unlawful . .
CitedSaunders v The United Kingdom ECHR 17-Dec-1996
(Grand Chamber) The subsequent use against a defendant in a prosecution, of evidence which had been obtained under compulsion in company insolvency procedures was a convention breach of Art 6. Although not specifically mentioned in Article 6 of the . .

Cited by:
CitedRegina v S and A CACD 9-Oct-2008
The defendant appealed against his conviction under the 2000 Act for failing to disclose the key used to encrypt a computer file. He was subject to a control order as a suspected terrorist. As the police raided his house, they found the key had been . .
CitedMurungaru v Secretary of State for the Home Department and others CA 12-Sep-2008
The claimant was a former Kenyan minister. He had been visiting the UK for medical treatment. His visas were cancelled on the basis that his presence was not conducive to the public good. Public Interest Immunity certificates had been issued to . .
CitedAl Rawi and Others v The Security Service and Others QBD 18-Nov-2009
The claimants sought damages from the defendants saying that they had been held and ill treated at various detention centres by foreign authorities, but with the involvement of the defendants. The defendants sought to bring evidence before the court . .
CitedAl Rawi and Others v The Security Service and Others CA 4-May-2010
Each claimant had been captured and mistreated by the US government, and claimed the involvement in and responsibility for that mistreatment by the respondents. The court was asked whether a court in England and Wales, in the absence of statutory . .
CitedSher and Others v Chief Constable of Greater Manchester Police and Others Admn 21-Jul-2010
The claimants, Pakistani students in the UK on student visas, had been arrested and held by the defendants under the 2000 Act before being released 13 days later without charge. They were at first held incognito. They said that their arrest and . .
CitedChief Constable and Another v YK and Others FD 6-Oct-2010
The court gave directions in Forced Marriage Protection order applications. An order had been made at the request of the police on behalf of A, and the court had declined to discharge it on A’s own application.
Held: Special advocates were not . .
CitedBritish Sky Broadcasting Ltd, Regina (on The Application of) v The Central Criminal Court and Another Admn 21-Dec-2011
The claimant challenged a production order made by the magistrates in respect of journalists’ material. They complained that the application had used secret evidence not disclosed to it, and that the judge had not given adequate reasons to support . .
CitedBritish Sky Broadcasting Ltd, Regina (on The Application of) v The Commissioner of Police of The Metropolis SC 12-Mar-2014
The court was asked as to the powers of Magistrates hearing an application for a search warrant to receive excluded or special procedure material which had not been disclosed to the respondent. The court had overturned an order made by the district . .
CitedRichard v British Broadcasting Corporation (BBC) and Another ChD 26-May-2017
Disclosure of Journalists’s Source ordered
The claimant had been investigated in connection with allegations (not proceeded with) of historic sexual abuse. The first defendant received information in advance of a search of the claimant’s house, and filmed and broadcast this from a . .

Lists of cited by and citing cases may be incomplete.

Media, Criminal Practice, Human Rights

Updated: 31 October 2021; Ref: scu.270069