Serving professional journalism since 1912

Magazine of the Chartered Institute of Journalists

Journalists’ Sources- battles in London and Strasbourg

He is 74 years old, a former government minister and Labour MP, and is now being challenged by the West Midlands Police force to reveal source information into a journalistic investigation he carried out nearly 40 years ago.

It seems to be a bizarre scenario; particularly when the confidential source or sources who spoke to him were providing information revealing that the same police force had contributed to one of the worst miscarriages of justice in British legal history.

Memorial to those killed in the Birmingham pub bombings, unveiled outside New Street Station on 21 November 2018. By Elliott Brown from Birmingham, United Kingdom, CC BY-SA 2.0

The information enabled Chris Mullin to write a book and research World In Action television documentaries that catalyzed Court of Appeal hearings which would eventually lead to the release of ‘The Birmingham Six.’

These were innocent men of Irish background who had been incarcerated for 16 years for the murderous Birmingham pub bombings of 1974- something they had absolutely nothing to do with.

Most of them had been beaten up and tortured into making false confessions. The attempt to prosecute the police for the frame-up was stopped because it was said intensive media coverage would mean there could not be a fair trial.

The West Midlands police are now re-investigating the murders of the 21 people who died in the bombings and 182 people injured.

They are using the Terrorism Act 2000 to try to force Chris Mullin to reveal his sources, legislation that did not exist in either 1986 when his book Error of Judgement: The Truth About the Birmingham Bombings was published, or indeed 1974 the year of the atrocity.

Cover of Chris Mullin’s book ‘Error of Judgement: The truth about the Birmingham bombings- an updated edition published in paperback from 1990.

The hearing has been taking place before the Central Criminal Court’s most senior judge, The Recorder of London, Judge Mark Lucraft.

James Lewis QC for the West Midlands Police explained that Mr Mullin is refusing to identify the bomb planter described as ‘AB.’

Mr Lewis said AB had made a voluntary, accurate and reliable confession to the murders when interviewed by Chris Mullin. The public interest here was the fact the murderer himself was confessing in a four hour interview recorded with detailed notes.

He argued that the benefit of the confession to the investigation of one of Britain’s worst terrorist incidents outweighed the public interest in any promise of anonymity made by a journalist.

Mr Mullin said in his statement: ‘My intention was to rescue the six men who I believed to be innocent and who had by this time been in prison for 12 years and who had no prospect of release.’

The application by the West Midlands Police for Chris Mullin to reveal his source ‘AB’ took place at the Central Criminal Court where the Birmingham Six had their convictions quashed and were released in 1991. Image by Tim Crook.

He explained: ‘It was also obvious from the outset that none of those involved in the bombings would talk to me if they thought I was merely collecting evidence on behalf of the police – although it must be said that, at the time, the West Midlands Police were entirely uninterested in pursuing any such line of enquiry.’

He said protecting sources is ‘a fundamental principle of investigative journalism…It goes to the heart of press freedom in a democracy.’

Chris Mullin is being supported by the National Union of Journalists and his leading media law QC Gavin Millar told the court: ‘This is a unique and deeply concerning case, especially to anyone who cares about public interest investigative journalism in this country.’

During the hearing Mr Mullin said ‘I am not prepared to say’ on two occasions when asked about the identity of his sources.

Chris Mullin with Martin Bell at Hexham book festival in 2009. Image by summonedbyfells, CC BY 2.0

The Chartered Institute of Journalists hopes Mr Mullin wins his case, but there is a risk that whatever Judge Lucraft decides, the matter could be appealed upwards to the UK Supreme Court and perhaps even beyond.

While there have been some positive outcomes on protection of journalist source battles in recent years, there have also been some serious setbacks.

In 2019 the High Court in Northern Ireland provided a robust assertion of Article 10 freedom of expression for journalists in the protection of their confidential material and sources from unlawful seizure and arrest by the police in the case of investigative journalists Trevor Birney and Barry McCaffrey.

In 2018 they were arrested for allegedly stealing a confidential report from the office of the Police Ombudsman for Northern Ireland.

The document had been leaked to them by an anonymous source, and contained information about the killing of six men in Loughinisland, Northern Ireland, in 1994. The journalists were questioned for 14 hours, and their homes searched.

After the High Court in Belfast quashed the warrants against them, they collected substantial damages for wrongful arrest.

There are many European Court of Human Rights’ precedents giving significant protection for journalists’ sources; namely Goodwin v UK in 1996, Financial Times & others v UK in 2009 and Sanoma Uitgevers B.V. v The Netherlands in 2010. But none of these have balanced a large-scale terrorism investigation with public interest importance in protecting the confidential source.

The courts in the UK and in Europe have not been very willing to extend the protection to the whistleblowers themselves; particularly if there are controversial circumstances such as paying public officials, providing favours in any perception of bribery, and the leaking is regarded as damaging the public interest itself by undermining trust in the body or organisation the whistleblower is working for.

This was sadly confirmed when the European Court of Human Rights rejected the application by former Belmarsh prison officer and trade union official, Robert Norman, over his conviction in Operation Elveden for being paid for stories by tabloid newspapers.

The courts refused to give him whistleblower status, or recognise his public interest motivation, and the promise of confidentiality by the journalist he was in contact with.

Even worse from a professional journalism point of view, Mr Norman was betrayed not by the reporter he was dealing with, but by the publishing newspaper which paid for his stories.

It was the Daily Mirror newspaper which revealed his identity to the police.

The Grand Chamber of the European Court at Strasbourg would not take his appeal though it has heard an appeal in the Luxleaks case of Halet v Luxembourg 2022.

Raphaël Halet, like Robert Norman, argues his criminal conviction and fine for disclosing tax documents relating to certain of his employer’s clients is a breach of his Article 10 rights.

Grand Chamber of the European Court of Human Rights assembling to hear legal submissions in the case of Halet v Luxembourg on 2nd February 2022.

If the Grand Chamber is prepared to recognise and endorse the transfer of Article 10 journalist source protection from the journalist and publisher of the leaked information to Monsieur Halet himself, this would represent a significant breakthrough in protection of journalist source rights.

It would be too late for Mr Norman, whom the Institute doggedly and consistently supported, and for whom exposure as a legitimate journalist’s confidential source was so much more catastrophic.

He was treated like a terrorist with a dawn raid on his home, received a twenty month prison sentence, loss of his livelihood, house, and experienced acute anxiety and distress with the consequent breakdown in the health of his wife.

Journalist source protection remains an unstable and vulnerable face of the law for our profession, the people who give us vital public interest stories, and the role we need to perform as communicating journalists in democratic societies.

The weaker it becomes the less we have of real media and press freedom.

Updated 22nd March 2022

The Recorder of London Judge Mark Lucraft QC ruled that Chris Mullin was entitled to Article 10 protection of journalist’s sources.

He drew heavily on the 2012 ruling of the Divisional Court in R. (On the Application of British Sky Broadcasting Ltd) v. Chelmsford Crown Court.

As Moses LJ stated: “The judge must then exercise his discretion; the fact that the appellant has satisfied the access conditions is not enough. He must exercise that discretion compatibly with art.10, even if the access conditions are satisfied. First, the objective must be sufficiently important to justify the inhibition such orders inflict on the exercise of the fundamental right to disseminate information. Secondly, the means chosen to limit the right must be rational, fair and not arbitrary and third, the means used must impair the right as little as is reasonably possible.”

It was hailed by the Guardian as an ‘Historic case for press freedom as judge rules police cannot force journalist to identify man who confessed to role in attack’ in an article written by the veteran crime reporter Duncan Campbell.

Chris Mullin wrote an opinion piece for the Guardian two days after the ruling explaining ‘I had to keep my sources secret, or the Birmingham Six might still be in jail. My investigation was overwhelmingly in the public interest. I have no difficulty in justifying my actions.’