In the case of R (on the application of the BBC) v Secretary of State for Justice ([2011] EWHC 13 (Admin)) the High Court ruled that the Justice Secretary’s refusal to grant the BBC permission to have and to broadcast a face-to-face interview with terrorism suspect Babar Ahmad was unlawful.

The BBC and one of its home affairs correspondents, Dominic Casciani, had applied for permission to conduct the interview with Mr Ahmad, who is currently detained at HMP Long Lartin, and is fighting extradition to the USA. The BBC also wished to broadcast the interview. The Justice Secretary refused the permission, which refusal the BBC challenged in a judicial review claim.

Extraordinary case

Mr Ahmad, a British Muslim, was first arrested in 2003 but released without charge after six days. In July 2004, the Crown Prosecution Service concluded that there was insufficient evidence to provide a realistic prospect of a conviction again him in the UK under the Terrorism Act 2000. However, he was arrested again in August 2004 following a request by the US for his extradition. The Home Secretary made an extradition order in 2005, which was followed by legal proceedings in the domestic courts and in Strasbourg.

In 2007, the European Court of Human Rights gave an indication to the UK Government under rule 39 of its Rules that the extradition be stayed until the Court has given due consideration to Mr Ahmad’s application in which he claims that the extradition would violate his Article 3 (contra inhuman and degrading treatment) rights. In 2010, the Strasbourg Court held Mr Ahmed’s application to be admissible in part but has not yet issued a judgment on the merits. Consequently, Mr Ahmad has remained in detention for over seven years without charge or trial.

The case has attracted significant public and Parliamentary attention, and sparked vigorous debate over whether the UK’s extradition arrangements afford adequate human rights protection. A Government e-petition in November 2011 calling for Mr Ahmad to be tried in the UK was closed with over 140,000 signatures. In the same month, a letter addressed to the Leader of the House of Commons and signed by over 100 lawyers called for a Parliamentary debate on his case. There are other unusual features of the case which have kept it on the public interest radar, including the Metropolitan Police’s admission in civil proceedings that Mr Ahmad was physically abused during his 2003 arrest, and Mr Ahmad’s candidacy for Parliament in 2005 for the constituency of Brent North, where he came fourth.

The parties’ positions

The MOJ’s current policy on prisoners’ access to the media, set out in document PSI 37/2010, essentially allows for visits by journalists where either the matter relates to an alleged miscarriage of justice and inter alia the prisoner has exhausted all appeals, or there is some other sufficiently strong public interest in the issue sought to be raised during the visit and the assistance of the journalist is needed. There are further criteria that must be satisfied in either case, before a visit is allowed. The Policy adds that journalist visits are intended to be permitted for research only and “requests for interviews to be filmed or broadcast will normally be refused.”

The Justice Secretary’s reasons for its refusal to allow the interview were, in brief, that allowing prisoners direct access to TV, through which they might run media campaigns and attempt to justify their behaviour, risks (a) causing distress to the victims of crime, and (b) damaging public confidence in the criminal justice system. It was argued that both risks existed here despite the fact that Mr Ahmad had not been convicted. The Secretary also argued that a broadcast interview was not necessary, given the scope for correspondence and written interviews with Mr Ahmad.

The BBC argued that the refusal was incompatible with the right to freedom of expression in Article 10 of the European Convention on Human Rights. It stressed the public’s right, under that Article, to receive recorded information about Mr Ahmad given the strong public interest in the case, and the difference between TV interviews and other forms of coverage. It was argued that a broadcast interview would uniquely bring home to the public the impact of the detention on Mr Ahmad and allow them to make their own judgments about his credibility.

Judgment

The Court held that the refusal amounted to a disproportionate interference with the Article 10 right. Whilst the reasons proffered by the Secretary tended to justify his general policy, they were not sufficient for the interference in this case. In any event, PSI 37/2010 allowed for exceptions to the general policy and “it is difficult to think of a case which would fall within the exception if not the present one”. Ultimately the case turned on whether the interference was proportionate, and the Secretary’s decision had failed the requirements of the proportionality principle as summarised in Huang v Secretary of State for the Home Department [2007] 2 AC 167.

The Court held in particular that the Secretary had failed to strike a fair balance between the public interest in the refusal to permit the interview on the one hand and the important public interest considerations in favour of allowing it:

“Article 10 confers a right on the public to receive information, in particular about matters of public concern in a democratic society, such as the treatment of a prisoner who has been in detention for a very long time without charge; and the extradition arrangements applied in this case. It is not for this Court to pronounce on the rights and wrongs of different views that may be held in debate about such matters. The importance of the rights in article 10 is that, in principle, the public should be able to engage in such debates and be as fully informed as possible and make their own minds up. For this reason too, the failure to maintain a fair balance, the Secretary of State’s decision breaches the principle of proportionality. [97]

Mr Justice Singh, giving the joint judgment of the Court, stressed that the case should not be regarded as setting any precedent for other cases and that:

“…the Secretary of State is entitled to maintain the policy which he does: no challenge has been made to his entitlement to have such a policy in principle and to apply it to the great majority of cases. It is on the unusual facts of the present case that its application constituted a disproportionate interference with the right to freedom of expression“. [82]

However, despite this unequivocal statement, it is difficult to read the decision as purely confined to the admittedly extraordinary facts of Mr Ahmad’s case. The judgment stands for a number of important general propositions. In particular, it underlines the importance of the Secretary being able to justify a refusal of permission by reference to the specific facts of each case. It is also significant in that it endorses the argument that TV access can not be substituted by other types of coverage in some cases – ie, there was a specific right for the interview to be shown on TV.

More importantly perhaps, it also highlights the public’s right to receive information in cases which ignite significant public attention. The particular balancing of the public interest considerations which underpins the judgment is no express part of PSI 37/2010, and may very well lead to an adjustment of that policy or its application in practice.

If nothing else, the judgment is a notable response to a fundamental question of legal policy: what are the outer limits of the principle that the appropriate place for the determination of a prisoner’s grievances is the justice system rather than the wider public sphere, and in particular, the media? More narrowly, when does it become necessary to allow the public the opportunity to pass their own judgments on the pleas and credibility of a prisoner?

The development of the case law and policy following this decision will be an interesting space to watch. The decision itself though will not be appealed, the Justice Secretary has confirmed.

Karwan Eskerie is a pupil barrister at One Crown Office Row.

This post originally appeared on the UK Human Rights Blog and is reproduced with permission and thanks.