R (on the application of the British Broadcasting Corporation and another) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mr Justice Singh,or |
| Judgment Date | 11 January 2012 |
| Neutral Citation | [2012] EWHC 13 (Admin) |
| Docket Number | Case No: CO/9556/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 January 2012 |
and
[2012] EWHC 13 (Admin)
Lord Justice Hooper
Mr Justice Singh
Case No: CO/9556/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Pannick QC and Tom Cleaver (instructed by BBC Legal Department) for the Claimants
James Eadie QC and Martin Chamberlain (instructed by Treasury Solicitor) for the Defendant
Phillippa Kaufmann QC (instructed by Bhatt Murphy) for the Interested Party
Hearing date: 9th December 2011
Introduction
This is the judgment of the Court, to which both its members have contributed.
On 10 October 2011 Ouseley J directed that the application for permission in this case should be listed before a Divisional Court at a "rolled-up" hearing, with the substantive hearing to follow immediately if permission were granted. At the start of the hearing this Court granted permission and proceeded to hear the substantive claim for judicial review. This was both because we considered the claimants' grounds to be arguable and because we regarded the case as raising important issues which should be fully considered in the public interest.
In this case the British Broadcasting Corporation (BBC) and one of its home affairs correspondents, Mr Dominic Casciani, have applied for permission to conduct a face-to-face interview with Mr Babar Ahmad, who is currently detained at HMP Long Lartin, and whose extradition has been sought by the United States of America (USA). The claimants also wish to broadcast the filmed product of that interview.
Initially, a junior minister, Mr Crispin Blunt MP, the Parliamentary Under-Secretary of State for Prisons and Youth Justice made the decision, communicated in a letter dated 15 July 2011, to allow a face-to-face interview, but with audio recording only (not video recording). In that letter it was made clear that permission to conduct the interview was subject to an undertaking that, in line with normal policy, the recording would not be broadcast.
After a letter before claim was sent on 2 August 2011, in which it was made clear that the claimants were not content with permission to conduct an interview only, since they wished to film that interview and to be able to broadcast the product of that interview, the Secretary of State for Justice, Mr Kenneth Clarke MP, decided to review the decision personally and took a fresh decision. He refused permission to have a face-to-face interview at all. That decision was communicated by a letter dated 22 September 2011 and is the subject of the present claim for judicial review.
In a nutshell, the claimants' contention, which is supported by the interested party, is that the Secretary of State's decision violates the right to freedom of expression in article 10 of the Convention 1 rights, as set out in Sch. 1 to the Human Rights Act 1998 ( HRA) and is, therefore, unlawful by virtue of section 6(1) of that Act.
Factual Background
The following facts have helpfully been placed by the parties before the Court and are either agreed or at least are not in dispute.
Mr Ahmad is a British citizen. He was born in the United Kingdom and has lived here all his life.
In December 2003 Mr Ahmad was arrested at his home and, as the Metropolitan Police later admitted in civil proceedings, was physically abused by the arresting officers. Mr Ahmad was released without charge after six days.
In July 2004 the Crown Prosecution Service (CPS) concluded that there was insufficient evidence to provide a realistic prospect of securing a conviction against Mr Ahmad in this country of charges under the Terrorism Act 2000.
On 5 August 2004 Mr Ahmad was arrested in London following a request by the US for his provisional arrest with a view to extradition. He was arrested on the authority of a warrant issued by the District Judge at Bow Street Magistrates' Court.
On 6 October 2004 a Federal Grand Jury in Connecticut issued an indictment alleging four offences against Mr Ahmad between 1997 and 2004: (1) conspiracy to provide material support to terrorists; (2) providing material support to terrorists; (3) conspiracy to kill, kidnap, maim or injure persons, or damage property, in a foreign country; and (4) money laundering. The alleged facts of the offences included that Mr Ahmad had participated in fundraising for terrorism online, and that in 2001 Mr Ahmad had acquired then-classified US Navy plans relating to a battlegroup operating in the Persian Gulf, which discussed its vulnerability to terrorist attack. Some of the websites that Mr Ahmad is said to have used for these purposes were based in Connecticut, hence the jurisdictional connection with that state in the USA.
In October 2004 the Independent Police Complaints Commission (IPCC) recommended that a disciplinary tribunal should be convened to determine whether one specific officer who arrested Mr Ahmad in 2003 had used excessive force but made no recommendations in respect of the other officers.
In the general election of May 2005 Mr Ahmad was a candidate for Parliament in the constituency of Brent North. He came fourth.
On 17 May 2005 Senior District Judge Workman found that there were no bars to Mr Ahmad's extradition under the Extradition Act 2003 and sent the extradition request to the Secretary of State for the Home Department (then Mr Charles Clarke MP). On 15 November 2005 the Home Secretary ordered Mr Ahmad's extradition.
On 30 November 2006 the Divisional Court (Laws LJ and Walker J) dismissed an appeal against the Senior District Judge's decision but certified two points of public importance. However, on 6 June 2007 the House of Lords refused leave to appeal.
On 12 June 2007 the European Court of Human Rights gave an indication to the Government of the UK under rule 39 of its Rules that Mr Ahmad should not be extradited until the Court had given due consideration to his application to it.
In February 2008 the Sunday Times reported that Mr Ahmad's conversations with his MP, Mr Sadiq Khan, were covertly monitored while he was in prison. A later report by Sir Christopher Rose concluded that the monitoring was lawful.
On 18 March 2009 the Metropolitan Police admitted liability in a civil claim arising out of Mr Ahmad's arrest in 2003 and paid damages of £60,000.
On 6 July 2010 the European Court of Human Rights held that Mr Ahmad's application to that Court was admissible in part. There were two specific grounds of complaint which the Court considered raised such serious questions of fact and law of such complexity that their determination should depend on an examination of the merits of the case. The first ground related to the fact that, should he be extradited to the USA, Mr Ahmad would be at real risk of detention at ADX Florence and, therefore, that his extradition would violate article 3 of the Convention, which prohibits torture and inhuman and degrading treatment (para. 146 of the Court's decision on admissibility). The second ground related to the fact that there is a possibility that a life sentence will be imposed if Mr Ahmad is convicted in the USA and that such a sentence would, in the circumstances of his case, violate article 3 of the Convention (para. 153 of the Court's decision on admissibility). The Court's judgment on the merits is currently awaited: it is not yet clear whether the Court will hold a hearing, which nowadays is rare, or will decide the case on the papers.
On 8 July 2010 the Independent published an interview with Mr Ahmad constructed from written correspondence.
On 14 March 2011 Mr Ahmad wrote to the Governor of HMP Long Lartin, Mr Simon Cartwright, requesting permission for a media visit. On 4 April 2011 Mr Casciani also wrote to Mr Cartwright, on behalf of himself and a colleague, Mr Naresh Puri, requesting an interview with Mr Ahmad. In that letter he referred to a number of matters, including what he described as the Parliamentary and wider public interest in the case.
In May 2011 the four officers involved in the 2003 arrest were tried at Southwark Crown Court and were found not guilty. Mr Ahmad gave evidence at that trial.
In June 2011 the Parliamentary Joint Committee on Human Rights published a report, The Human Rights Implications of UK Extradition Policy, concluding that the Extradition Act 2003 does not, in practice, afford adequate human rights protection to those subject to it.
Also in June 2011 HM Chief Inspector of Prisons reported on the detainee unit at HMP Long Lartin, making specific reference to "the longest detained British citizen in the unit", which appears to be a reference to Mr Ahmad, who has been detained without charge or trial for more than seven years.
On 18 October 2011 an independent panel set up by the Government to review the UK's extradition arrangements, chaired by Sir Scott Baker, published its report, which referred to Mr Ahmad's case. The report concluded that the human rights bar in the Extradition Act 2003 provides sufficient protection against prospective human rights violations.
On 10 November 2011 a Government e-petition calling for Mr Ahmad to be tried in the UK rather than the USA was closed with over 140,000 signatures. On 18 November 2011 a letter addressed to the Leader of the House of Commons and signed by 100 lawyers called for a Parliamentary debate on Mr Ahmad's case.
Some of the above factual...
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