The justice secretary certainly acted unlawfully in refusing to allow the BBC to interview Babar Ahmad, a British prisoner wanted in the US on terrorism charges, as the high court has found. But once the judgment came out, Ken Clarke showed none of the stubbornness associated with previous prisons ministers, telling the court that he would not be seeking to appeal.
True, Clarke stood very little chance of overturning the ruling. Previous successes by the media mean that a reporter may now interview a prisoner seeking to highlight an alleged miscarriage of justice or some other issue of legitimate public concern.
In 2001, I found no difficulty in getting to see Sally Clark, the solicitor wrongly convicted of murdering two of her children, while she was in prison awaiting her successful appeal. But that was a print interview: the government’s policy is that “requests for interviews to be filmed or broadcast will normally be refused”.
The word “normally” is essential because a rigid and inflexible policy that allowed for no exceptions would itself be unlawful. And in a confidently expressed judgment, the recently-appointed Mr Justice Singh said that if the Ahmad case did not amount to such an exception then it would be difficult to think of a case that would.
After all, here was a man who has been detained in Britain without charge or trial for more than seven years, longer than anyone else. Ahmad, 38, a British citizen from south London who has lived in Britain all his life, is not facing charges in the UK. He was arrested in 2003 under the Prevention of Terrorism Act and released after six days, during which he was injured so badly by the Metropolitan Police that they agreed to pay him £60,000 in compensation.
Since August 2004, though, he has been trying to overturn an extradition request from the the US authorities, who accuse him of raising funds for terrorism through websites based in Connecticut. He’s also said to have acquired classified US Navy plans relating to a battlegroup in the Persian Gulf, the basis for charges of conspiracy to kill. A decision from the European court of human rights on whether his extradition would put him at risk of inhuman treatment in the US is expected at any time.
In the high court, Singh stressed that he and his senior judicial colleague Lord Justice Hooper were not setting a precedent. The justice secretary was fully entitled to have a policy of refusing broadcast interviews and to apply it in the great majority of cases.
“It is on the unusual facts of present case,” the judges explained, that application of the policy “constituted a disproportionate interference with the right to freedom of expression”.
The judges said Ahmad’s case was very different from that of Dennis Nilsen, the serial killer whose application to publish an autobiography was dismissed as inadmissible by the human rights court in 2010. That application was brought “not by a reputable organisation like the BBC but by a notorious murderer”.
It was because the justice secretary lost the Ahmad case on its facts that an appeal stood very little chance of success. But some of Clarke’s predecessors would have fought on in the hope that Strasbourg might have allowed Ahmad’s extradition before the court of appeal had delivered a further ruling.
That, of course, would have risked even more taxpayers’ money going to pay the BBC’s legal costs; the broadcaster instructed Lord Pannick QC, a wise choice but not cheap.
Clarke could still prevaricate: he must reconsider his refusal to allow an interview in the light of the court’s judgment and then the practical arrangements for a television interview will need be made. But the justice secretary knows that the BBC – and its correspondent Dominic Casciani, who brought the case with his employer’s support – will be back in court if he appears to be taking too long.
The US authorities won’t be very pleased, of course. But Clarke can tell them he did all he could. It’s those out-of-control judges of ours, he can tell the Americans; they keep standing up for a responsible media, freedom of expression, proportionality and all those other unfashionable human rights.