23rd March 2022
I was born and brought up in the Birmingham of the 1970s, and like many others I had family and family friends who could well have been killed in the Birmingham pub bombings.
There is a powerful public interest in that crime being properly investigated and those guilty being convicted.
Six innocent men were convicted for the bombings, and their prosecution and punishments was an appalling miscarriage of justice, perhaps one of the worst miscarriages of justice in English legal history.
There was a powerful public interest in that miscarriage of justice being exposed and corrected.
And the journalist (and later politician) Chris Mullin was the one who did most to expose and correct that miscarriage of justice.
What happens when two powerful public interests such as the above collide?
That was the issue before the recorder of London at the Old Bailey.
On one hand, those police officers investigating the bombings want access to materials held by Mullin.
You can see why the police would want this – especially if it would contain direct evidence that would aid a successful prosecution.
But that does not necessarily mean the police should get it.
The reason is that the material which Mullin holds was given to him on the basis of confidentiality, so that he could expose the miscarriage of justice.
Without that assurance to his source, Mullin would not have been given that information, and without that information the miscarriage of justice would not have been exposed.
And so the public interest in exposing that miscarriage of justice would have been defeated.
In a detailed and fascinating judgment, the judge shows how the competing – indeed contrasting – public interests in this case should be balanced.
And in a compelling conclusion the judge holds that in this case there should not be an order for disclosure of the material.
It is unfortunate that this means that any prosecution of those guilty of the bombings will not be assisted by this material – but such a prosecution should not be at the cost of undermining the public interest in exposing a miscarriage of justice.
Not only is the judgment compelling, it also is another recent example of a judge taking Article 10 of the ECHR and the right to free expression seriously.
It is a good judgment in a difficult case, and it is recommended reading for anyone interested in practical law and policy.
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“It is unfortunate that this means that any prosecution of those guilty of the bombings will not be assisted by this material”
Personally (and perhaps in a sign of my agreement with the decision as described) I think “further assisted by this material”, because that material has already assisted by ensuring that the wrong people were not convicted and the investigation is not seen as completed.
Life’s not a movie and so simply knowing you were looking in the wrong place won’t magically make you look in the right place, but for mine it’s right to say the it assists not only in reversing the later injustice, but in moving towards justice in respect of the investigation of the bombings.
It is not clear to me what substantial value the police may derive from a journalist’s records of interviews held some 30 or 35 years ago, in relation to a crime that took place nearly 50 years ago. They police already know the names of the two individuals involved and seem to have interviewed them several times. How much probative value is “He told me he did it” or “He told me someone else did it”?
Interesting contrast with the case of Shiv Malik in 2008, who was ordered to hand over his records of interviews with a suspected terrorist. Was there any subsequent prosecution based on that evidence?
So Chris Mullin has evidence of who actually carried out the bombings and the police aren’t allowed it. Morally that is ridiculous.
Not as ridiculous as a comment that ignores the public interest in exposing miscarriages in justice.
The miscarriage of justice has already been exposed.
The police now want the materials to help find the right people.
Where is the controversy?
For the former could only be done at the expense of the latter, as my post expressly sets out.
Chris Mullins has already handed as much of this information to the police as he feels he can, with some redactions, and the names removed. But it seems the relevant names are already known to the police.
The police appear to want the unredacted information, presumably with a view to using it as evidence in court and cross examining the individuals concerned (perhaps including Chris Mullins).
It seems that the police, having quickly fitted up the wrong people who then spent 16 year in prison, still do not have enough other evidence to charge let alone convict the suspected perpetrators nearly 50 years later.
Would a journalist’s notes, decades old, really make all the difference?
Sometimes we ask ourselves “How can this be prevented from happening again?”. Ask that question about exposing this miscarriage of justice and the answer is “prevent journalists from keeping sources secret”.
If all you care about is this one case, there is no reason to keep the sources secret. If you care about all the cases which will arise in future, you need to allow sources to be kept secret or otherwise you will have no future informants to allow you to expose injustices.
I should think everyone is relieved that this sleeping dog is allowed to slumber. A wise decision.
I have a slight quibble with the headline. Chris Mullen did an amazing job but I feel the justice system itself should also get some credit for the decision that has been reached.
The conviction of the innocent and the subsequent appalling vista of a system refusing to grant them the opportunity to show their innocence did huge damage to that system. This decision won’t fix that wrong but it does help to show that there may be justice to be found after all.