The BBC has been ordered by Belfast Crown Court to hand over both broadcast and un-broadcast material from a documentary series, Spotlight On The Troubles: A Secret History, first transmitted in 2019. The order follows an agreement between the Police Service of Northern Ireland (PSNI) and the BBC.

The material includes interviews with Patrick Ryan, a former priest who told the programme that he had maintained a network of Europe-wide contacts used to generate arms and money for the IRA, and Laurence Maguire, a convicted killer, about his involvement with the Mid Ulster UVF, part of the Ulster Volunteer Force in Northern Ireland.

A PSNI lawyer told the court that there are ‘reasonable grounds’ to believe the material is likely to be of use to terrorist investigations. Considering his obligations under the Terrorism Act, the judge concluded that the order was sought “for the purpose of a terrorist investigation.”

Holding that he was “satisfied the public interest is in favour of granting an order”, the judge added that “there is a need to protect the public from terrorist activity”. Under the Order, the BBC is required to deliver material arising out of three episodes in the series, including both broadcast and un-broadcast material on the condition that it is “only to be used for the purposes of a terrorist investigation and any subsequent prosecution” and is “to be retained by the PSNI.”

In reaching his decision, the judge acknowledged that the Article 10 right of “free and investigative journalism are significantly to be respected”.

In a statement, the BBC said that as a matter of policy it does not, “supply un-transmitted material without a court order and where a judge is satisfied the relevant high threshold tests for the disclosure of journalistic material are met.”

West Midlands Police previously failed in their attempt, under the Terrorism Act, to require Chris Mullin to hand over journalist material concerning his investigations into the Birmingham pub bombings in 1974. The court in the Mullin case concluded that it did not “find an overriding public interest to displace the journalistic source protection right”.

Under UK law, material acquired or created for the purposes of journalism e.g. notebooks and rushes, are given special protection from seizure by the police by the Police and Criminal Evidence Act 1984 or ‘PACE’ as it is better known. If police want to get their hands on such material, they must apply to a judge for a ‘production order’. The court will only order that material is handed over if certain conditions are met, including that the court is satisfied that the material would be of ‘substantial value’ to an investigation into a serious offence, and that it would be in the public interest for the material to be handed over. Under PACE, so-called ‘excluded material’ – which includes journalistic material held in confidence e.g. from a source promised complete anonymity – is generally exempt from compulsory surrender, meaning that in most cases the police cannot seize it.

There are special provisions, however, when it comes to material held by the media relating to terrorist offences, which make it easier for the police to seize. When it comes to terrorist offences, the law states that, even for excluded material (journalistic material held in confidence), a court should order that it be handed over to the police where the judge is satisfied that there are reasonable grounds for believing the material will be of ‘substantial value’ to an investigation, and where it is in the public interest to do so.