Pub-bomb probe could jail journalist
On Friday (25 February 2022), Detective Constable Darren Sutton cut an uncomfortable figure in the witness box at the Old Bailey. Little wonder. At the behest of his employer, West Midlands Police (WMP), he was attempting to undermine a journalist’s imperative undertaking – that a confidential source’s identity remains sacrosanct.
Judge Mark Lucraft is now considering Sutton’s application, and there is every chance that he will rule in his favour. In that eventuality, the possibility increases dramatically that one of Britain’s most significant investigative journalists will go to prison.
The case is that of Chris Mullin – who also served as an MP and a government minister. His investigations during the 1980s proved that the six men convicted of the 1974 Birmingham pub bombings had been framed by WMP. His most compelling strand of evidence was the confession to the crimes by the actual bombers, provided with sufficient detail to establish veracity.
In 1991, sixteen years after their incarceration, the Appeal Court ruled that the Birmingham Six’s convictions were unsafe, and finally freed them. Then Home Secretary Kenneth Bakersaid in Parliament: “(Chris Mullin) wrote his book and he campaigned hard. He has every right to feel proud that the convictions have been quashed”.
DC Sutton was not able to furnish the court with much explanation for why his force had acted as they have – but the papers surrounding this case do paint a remarkable picture. After using ‘coercive techniques’ to obtain confessions from the Birmingham Six, the force showed no interest during the 1980s in Mullin’s growing dossier demonstrating that the real bombers were at large.
Nor in 1991, when this became manifestly clear that the wrong men went to jail, did WMP spring to action. This was all the more amazing given that a poorly resourced journalist, with no special powers, had found the killers who had eluded England’s second largest police force.
Today, however, WMP has finally been chided into action – prompted partially by bereaved family members of the 21 people who died in the blasts. They are understandably angry at police inaction.
Of the four involved in the bombing identified by Mullin, one only is still living. Known in Friday’s hearing as ‘AB’, he was 18 when he deposited the bombs in the Mulberry Bush and the Tavern In The Town on 21 November 1973.
Some time ago Mullin provided WMP with notes from his conversation with AB – save that he redacted his name and any other identifying details. DC Sutton told the court that his colleagues had several times interviewed AB, including showing him a redacted copy of Mullin’s notes. AB, who has subsequently served a lengthy prison sentence for other bombings, and now lives in Northern Ireland, was uncooperative, Sutton told the court.
Making the case for WMP, James Lewis QC, explained the importance of Mullin’s notes. “We have a voluntary, reliable confession by the murderer, at present redacted to obscure his identity. Once it is unredacted it is of great evidential value.”
The WMP case rests on the hope that this confession, delivered to a journalist nearly 40 years ago, will be sufficient to persuade the Crown Prosecution Service (CPS) that there is a reasonable chance of conviction. WMP will then have the opportunity to persuade a jury that, despite the paucity of other evidence, these notes prove ‘beyond all reasonable doubt’ that AB is guilty.
Whether such a document would withstand the scrutiny of a defence barrister, I don’t know. A cynic might wonder, however, whether WMP’s real objective is to shift the ire of the bereaved families away from police shortcomings. That WMP last year sought, and failed to get, CPS approval to prosecute Mullin under the Terrorism Act only reinforces that impression.
Mullin has always been clear: “Journalists do not disclose their sources. I interviewed many of those who were active in the IRA’s West Midlands campaign. To gain their co-operation I gave repeated assurances, not only to the guilty, but to innocent intermediaries, that I would not disclose their identities. I cannot go back on that now, just because it would be convenient. My purpose at the time was to help free the six innocent men who had been convicted of the bombing. I was never under the illusion that I could bring the perpetrators to justice.”
Mullin’s turn on the stand at the Old Bailey was as short as it was unproductive for WMP’s brief. The former MP refused to name anyone that he had interviewed, or provide any further details of his research, save to refer to the records already surrendered.
His fidelity to the absolute duty of a journalist has to their source was echoed by former Guardian editor Alan Rusbridger in his written evidence to the court. “A promise is a promise. If a journalist broke their word they would never be trusted again by another source…That lack of trust would extend to their news organisation, and to others…Betraying a source could place (a journalist’s) life in danger.”
The device by which WMP seeks to compel Mullin to comply – a Production Order – may override this vital principle, however. The order is sought under the Terrorism Act (2000) that provides Police with enhanced powers to compel a journalist to hand over material that might pertain to “a terrorist investigation”.
Case law provides little guidance for the application of this Schedule of the Act. Charles Falconer, however, who was Solicitor General at the time of its enactment, did provide evidence on Mullin’s behalf. He explained that the intention of the Act was to create a means by which the Police could obtain information “that might prevent the commission of an imminent crime”. While acknowledging that statutory law must be interpreted by a court, he went on to say: “The idea that WMP could obtain a Production Order in respect of the work undertaken by Chris which helped to reveal… wrongdoing would have been completely at odds with the background understanding (of those who proposed the legislation)”.
The Terrorism Act already creates dangers for reporters. If a source shares information about live terrorist plans, a journalist (or anyone else) can be imprisoned for failing to disclose to police knowledge, belief or suspicion of the commission by others of such offences.
If WMP is successful in extending this requirement to historic material, Mullin will not be the last journalist who finds himself before a judge answering questions about their crumpled notebooks.
But if the court does order Mullin to hand over his notes, few believe that he will comply. In that circumstance, the NUJ, which is backing his case, would need to refer the matter to Judicial Review, and onwards to the European Court of Human Rights (ECtHR), if necessary. Michelle Stanistreet, NUJ General Secretary, who also attended court as a witness in Mullin’s case, has stressed the significance of this case.
The argument would be that the principle established when NUJ member Bill Goodwin refused to disclose a source should apply. The ECtHR 1996 ruling was that “any compulsion imposed on a journalist to reveal his source had to be limited to exceptional circumstances where vital public or individual interests were at stake”.
Mullin, now a sprightly 74, says that his next undertaking is a massive editing job on his final volume of diaries. If he ended up completing these in prison, investigative journalism in this country will have suffered a crushing blow. In that eventuality, citizens of the West Midlands might well wonder why the police response to their region’s most egregious crime has been to send the wrong person to jail – for a second time. The NUJ is committed to ensuring that eventuality never comes to pass.
Chris Mullin provides a gripping account of tracking down the bombers in the London Review of Books.
The full statements introduced to the Court can be read here: