The Ministry of Justice (MoJ) was wrong to ban the BBC from filming an interview with a terror suspect held for seven years without trial, judges ruled yesterday.
The broadcaster said it wanted to film an interview with Babar Ahmad in prison to show the physical and psychological impact of prolonged incarceration without trial.
Ahmad, 38 – a British Muslim – has been detained in a special unit at Long Lartin prison, Worcestershire, since 2004 on a US warrant. He has not faced charges in Britain and it is thought to be the longest ever detention of an un-convicted British citizen in recent history.
Ahmad is accused by the US authorities of running websites used to allegedly raise funds for Chechen and Afghan insurgents. He strongly denies any involvement with terrorism and is fighting extradition to the US – a ruling is expected from the European Court shortly.
In December, lawyers for Justice Secretary Ken Clarke defended his refusal to grant the BBC request, saying the general policy was to block such interviews with prisoners; that it was not necessary to inform the public about the story; and filming risked causing ‘distress and anger’ to victims of terrorism.
But on Wednesday, two High Court judges sided with the BBC, ruling that the facts of Ahmad’s case were so ‘exceptional’ and his situation ‘far from ordinary’ that the public had the right to know the details justifying a departure from the normal policy and – more than that – the interview ban was a ‘disproportionate interference’ with the right to freedom of expression.
The judgement came with a big legal caveat, the court making clear that, in their view, the case should not set ‘any precedent for other cases’ around journalist access to prisoners and that current policy of controlling such access would continue to apply ‘to the great majority of cases’
To misquote that great jurist, Jennifer Aniston: pay attention here comes the law bit. There is a long history of journalists facing obstacles when attempting to talk to prison inmates, including men and women who allege they are victims of miscarriages of justice or abuses of power by the authorities. Last year, the Guardian threatened proceedings in a couple of cases – arguing Clarke was unfairly using his powers to restrict the freedom of journalists to interview prisoners’ – the MoJ eventually backing down in the face of such challenges and allowing contact.
A new policy on prisoners’ access to journalists was introduced following successful challenges to the previous policy (such as R v Home Secretary ex p Simms and O’Brien). Under the old policy, prisoners were not normally allowed to receive visits from journalists in a professional capacity, only a personal one, and even then usually only with an undertaking being given that material obtained would not be used for publication or other professional purposes.
The current policy (PSI 37/10) allows face to face access to journalists in a professional capacity but still only in very limited circumstances – where the prisoner claims a miscarriage of justice and requires the assistance of a journalist to challenge the safety of their conviction or sentence or – there is some other sufficiently strong public interest (such as allegations of torture by a public official) and the assistance of a particular journalist is needed. Permitting a visit is always subject to the Prison Governor not deeming the visit a threat to security or the good order and discipline of the prison.
The fact that the MoJ has said it will not appeal, tells you all you need to know about the strength of the defence to the claim in the first place. Article 10, the right to freedom of expression, constitutes one of the essential foundations of a democratic society and one of the basics conditions for its progress and for each individual’s self fulfilment. It is applicable not only to ‘information’ and ‘ideas’ that are regarded as ‘inoffensive’ or a ‘matter of indifference’ but also to those that ‘offend, shock or disturb’. Such are the demands of pluralism, tolerance, broadmindedness without which democracy is dead in the water.
At a time when journalists and journalism continue to be publicly flayed by the Leveson inquiry over ‘phone hacking’ and intrusion into the lives of ‘celebrities’ and ordinary people, the story of Babar Ahmad provides an apposite reminder of the significant role that the press can play as a counterbalance to Government secrecy and restrictions – imparting information and ideas of real public interest – and the corollary right of the public to receive them and to make up their own minds – this is the least Mr Ahmad deserves.
Matt Evans is the Director of the AIRE Centre, a specialist charity whose mission is to promote awareness of European law rights and assist marginalised individuals and those in vulnerable circumstances to assert those rights. Previously he was the Managing Solicitor at the Prisoners Advice Service for 6 years and worked at a number of leading legal aid firms including TV Edwards, Hickman and Rose and Hodge Jones and Allen.