British Broadcasting Corporation (BBC) & Anor, R (on the application of) v Ahmad  EWHC 13 (Admin) (11 January 2012)
In early 2012, the British Broadcasting Corporation applied for permission to conduct a face-to-face interview with Babar Ahmad who is currently detained in prison without charge and whose extradition has been sought by the USA. The BBC also wished to broadcast parts of the interview in a programme looking at the treatment of detainees like Mr Ahmad and extradition arrangements with the USA. The Secretary of State refused this permission. The High Court of England subsequently held this decision was incompatible with the right to freedom of expression and as such was unlawful.
Mr Ahmad, a British citizen, was arrested in December 2003, physically abused by the arresting officers and released six days later without charge. In July 2004, the Crown Prosecution Service concluded there was insufficient evidence to provide a realistic prospect of securing a conviction against him under the Terrorism Act 2000.
On 5 August 2004, Mr Ahmad was arrested following a request by the US for extradition on suspicion of participating in fundraising for terrorism and obtaining classified US Navy plans. An extradition order was made in 2005. This was followed by legal proceedings in the domestic courts and in Strasbourg.
Mr Ahmad remains in detention without charge or trial. His case has reportedly attracted significant public and Parliamentary attention and sparked debate over whether the UK’s extradition arrangements afford adequate human rights protection. Earlier this year, the BBC sought permission to visit Mr Ahmad and broadcast parts of the interview in a documentary it was preparing. This request was refused and the BBC challenged the decision on the basis that it constituted a breach of the right to freedom of expression.
The applicable policy, ‘Prisoners’ Access to the Media’, provides that approval for a visit by a journalist will normally only be granted where the matter relates to an alleged miscarriage of justice and the prisoner has exhausted all appeals or there is some other sufficiently strong public interest. Also, according to the policy, the visit must be the only suitable method of communication and requests for interviews to be filmed or broadcast will normally be refused.
The BBC argued the public interest in making a programme about Mr Ahmad’s case was especially strong given, amongst other things, he has been in detention for 7 years without charge or conviction, the extradition arrangements with the US are controversial, he was seriously injured when arrested in December 2003 and, while in prison, he stood for election to the House of Commons. The BBC submitted that a face-to-face interview and broadcast was required for the journalist and the public to be able to assess the personal impact on Mr Ahmad and his credibility.
The Secretary of State argued there were good reasons to deny the request, namely that it would distress victims of terrorism and risk damaging confidence in the criminal justice system.
The High Court held the Secretary’s decision to refuse the BBC’s request was a disproportionate interference with the right to freedom of expression. This decision was informed by the fact that the BBC had demonstrated it required a face-to-face interview and that the Secretary’s decision was premised essentially on reasons of principle rather than practicality.
The Court noted that no challenge was made to the Secretary’s power to have the media policy in place, nor to his capacity to apply it to ‘the great majority of cases’. However, in circumstances in which Mr Ahmad had not been convicted of any crime and ought to be presumed innocent until proved otherwise, there were no ‘victims’ to protect. Further, there were many wider issues the BBC wished to explore in its programme so there was no danger the BBC would let Mr Ahmad use it to profess his innocence and undermine public confidence in the criminal justice system.
In coming to its decision, the Court reminded itself of the principle of proportionality as explained by the House of Lords in Huang v Secretary of State for the Home Department  2 AC 167. It concluded that the reasons advanced by the Secretary to justify his decision were a directly relevant consideration as to whether the right to freedom of expression had been proportionately limited and further whether this limitation had been pursued to achieve a legitimate objective. While the objective was accepted as a legitimate ends, the means by which the Secretary sought to achieve this was considered to be disproportionate in light of the less restrictive measures available to be taken. For example, the BBC could have stipulated that any broadcast of the interview with Mr Ahmad must not allow him to use the programme to mount a media campaign to protest his innocence or cause distress to terrorism victims.
Therefore, this was not a case where the public interest laid on only one side of the balance in applying the right to freedom of expression. The public interest in preventing distress to victims of terrorist offences was recognised as important as was the public interest in maintaining confidence in criminal justice. However, this case also recognised that there were powerful public interests on the other side, particularly the right of the public to receive information of public concern such as the treatment of long term prisoners without charge. The Court held it was not for it to pronounce on the rights and wrongs of different views which may be held in debates about such matters. Instead, the right to freedom of expression means that people should be able to engage in such debates, be as fully informed as possible and make up their own minds.
Application to the Victorian Charter
The Court stressed this case was highly exceptional and should not be regarded as setting any precedent in other cases. Nonetheless, it confirms any restrictions on the right to freedom of expression must be ‘established convincingly’. Further, it reminds us the right to freedom of expression is not absolute and an assessment of proportionality will be highly fact-specific.
The decision can be found online at: http://www.bailii.org/ew/cases/EWHC/Admin/2012/13.html
Susanna Kirpichnikov is a Lawyer at Lander & Rogers