In Court, Again

Friday,​ 25 February. To the Old Bailey, the Central Criminal Court, to respond to an application – under the Terrorism Act, no less – from the West Midlands Police. They are demanding that I hand over notes I made in the 1980s during my investigation into the Birmingham pub bombings, in the hope that these will help them to track down one of the two surviving bombers. A bit late, you may think, given that the bombings took place nearly fifty years ago, and my investigation, which led to the release of six innocent men, was concluded in 1991. What kept them so long? The short answer is that for many years the West Midlands Police, in common with much of the legal profession, were content to believe that the six men whose convictions had been quashed were in fact guilty. In the years that followed I lost count of the number of people who contacted me saying things like: ‘I had dinner with Lord Justice so-and-so last night and you should have heard what he was saying about the Birmingham Six.’

What has brought about this sudden interest in tracking down the real culprits? The answer is Justice 4 the 21, a campaign organised by relatives of the victims. The West Midlands Police are belatedly conducting a professional investigation. This has not, however, stopped them being denounced by supporters of the campaign for not trying hard enough. I have also been denounced. In the early days, the abuse came from people who believed that the Birmingham Six had been wrongly exonerated. Now it comes from those who seem to think that my refusal to name one of the bombers, on the grounds that it would be a breach of my obligation as a journalist to protect my sources, is all that stands in the way of justice. I am not sure the police believe this, but blaming me helps to take the heat off them.

This is not my first appearance at the Old Bailey. It was here, in January 1988, that I witnessed Lord Chief Justice Lane and two colleagues contemptuously dismiss the first appeal of the men who became known as the Birmingham Six. ‘The longer this hearing has gone on,’ Lord Lane said, ‘the more convinced we have become that the verdict of the jury was correct.’ The appeal hearing lasted six weeks, making it the longest in British history, and attracted worldwide attention. The jury box had been set aside for so-called ‘distinguished observers’. I sat there day after day in the company of Ludovic Kennedy, the doyen of miscarriages of justice cases; Cardinal Tomás Ó Fiaich, the archbishop of Armagh; and a revolving cast of politicians and clergymen from both sides of the Irish Sea. At one point even the archbishop of New York was represented. It was through watching the appeal court judges that I realised it is possible to be both brilliant and stupid. No detail escaped their attention, but they entirely missed the big picture.

I was also present two years later when, through gritted teeth, Lord Lane quashed the convictions of the three men and one woman who had been framed for the IRA bombings of pubs in Guildford and Woolwich. He had no choice: the convictions had been based solely on confessions that were found to have been fabricated. Even so, you sensed that if the crown had offered the slightest resistance, he would have found a way of sustaining the convictions. No sooner had the appeal been granted than a whispering campaign began, despite the fact that the Guildford and Woolwich bombings were the work of an IRA unit most of whose members had been captured years earlier in the siege of Balcombe Street – a state of affairs obvious to anyone who had spent more than an hour or two studying the case and who wasn’t an appeal court judge.

And I was there once again in March 1991 when the Birmingham Six were finally released, following yet another referral to the Court of Appeal by the home secretary. This time there was no doubt about the outcome. The two key planks of the case against them – the forensic evidence and the police notebooks – had been discredited. None of this stopped the crown from seeking to uphold the convictions. Until the last hour of the last day, Mr Graham Boal QC argued that, despite everything, the convictions were safe. The judges were having none of it. An hour or so later the six, who had by this time served sixteen years in jail, emerged triumphantly from the Old Bailey to cheering crowds and a wall of photographers. The footage went round the world. Even my wife’s family in Saigon saw it.

So here we are again, this time in court number seven. Mr Justice Lucraft, the Old Bailey’s most senior judge, presides. The first hour of the proceedings is taken up with an argument about whether or not to admit the press. Yet again the West Midlands Police have miscalculated. Applying for the press to be excluded has only succeeded in drawing more attention to the hearing. As a result, an alliance of media organisations has instructed a barrister to argue for the press to be admitted. Eventually common sense prevails. The judge rules that the press be admitted, on condition that they do not name the people whose interviews with me are the subject of the application.

Mr James Lewis QC, the mild-mannered counsel for the West Midlands Police, takes up most of the morning. The hearing is low key. No wigs, no histrionics. The judge is a pleasant-looking man in his late fifties. His concentration is impressive: he scarcely glances at the court. His attention is focused on whoever has the floor and on the documents before him. These days I find that even the judges look young.

Although it has generated an enormous amount of paperwork, and a certain degree of hot air, the issue is fairly simple. Does the Terrorism Act 2000 give the police the power to oblige journalists to disclose their sources in cases involving terrorism? Jack Straw, the home secretary at the time, and Charlie Falconer, the former lord chancellor who saw the bill through Parliament, both say that this was never the intention. The point had been raised during the bill’s passage through the House of Lords, and Falconer had insisted that it didn’t change the law in relation to journalists. He has helpfully provided me with a statement to that effect. However, it is not intention that counts. It is what the law says – or rather, what the judge believes it says. There are three key tests: first, do I have in my possession material which comes within the terms of the Terrorism Act? Second, is the evidence the police are seeking likely to be of substantial value? And finally, is it in the public interest that the right of a journalist to protect his sources, enshrined in Article 10 of the European Convention on Human Rights, should be overridden? There are precedents, but none quite matches my case. The law leaves the judge a good deal of discretion.

Only two witnesses are called, myself and Detective Constable Sutton, the West Midlands Police officer in whose name the application is being made. Disappointing. I was looking forward to seeing Lewis tangle with Charlie Falconer. And in truth I am surprised that the witness for the police should be a detective constable. Sutton acquits himself well, however. My counsel, Mr Gavin Millar QC, uses his appearance to dispose of a few canards. Are the police still alleging, as they did in their original submission, that I lied about the existence of my notebooks (which I destroyed some years ago)? Are they suggesting that I paid a clandestine visit to the Hull History Centre, where my papers are stored, and removed the documents they are seeking? And are they sticking to their claim that I might be lying about having removed from my notebook the page containing the name and address of the suspect soon after I interviewed him? To all these questions Sutton answers ‘No’.

I’m glad we’ve cleared that up. Within the limits of my ethical responsibilities as a journalist, I have done my best to co-operate with police investigations over the years. I was never under the illusion that I could bring the Birmingham bombers to justice. My sole aim in tracking them down was to rescue six innocent men who had little or no prospect of ever being released. I realised from the outset that merely knocking down the case against them did not prove their innocence. To do that I needed to persuade those who had actually made and planted the bombs to describe what they had done in sufficient detail that it would no longer be possible for those in authority to pretend that the real culprits were behind bars.

That involved detective work of the sort I would have recommended to the West Midlands Police had they been interested at the time. I interviewed 16 or 17 men who had planted bombs in and around Birmingham in the mid-1970s. In every case I had to provide them with an absolute assurance of confidentiality. If they had for a moment suspected that I was collecting information for the police, no one would have co-operated.

What I did was overwhelmingly in the public interest. It led not only to the correction of one of the biggest miscarriages of justice in British legal history but also to the winding up of the notorious West Midlands Serious Crime Squad, which in turn resulted in the quashing of many other convictions. It led indirectly to the setting up of the Criminal Cases Review Commission, which has overturned a further five hundred convictions. And, finally, my investigation led to the identification of three of the four perpetrators of the original bombings: Michael Murray, who died in 1999; James Francis Gavin, who died in 2002; and Michael Christopher Hayes (to whom I owe no duty of confidentiality since he made no admissions to me), who is alive and well and living in Dublin. None of these names would be known if it wasn’t for my investigation. I understand the desire of those who lost loved ones to bring the fourth and final perpetrator to justice. But I wish they could acknowledge how much has been done.

I had expected to spend a long time in the witness box. In fact my cross examination lasted only a few minutes. Mr Lewis asked if I would name the two men whose interviews were the subject of the application – the surviving unidentified bomber and another man – and I replied that I was unable to do so. He had expected as much and didn’t press me. As I was leaving the court at the end of the hearing, he wished me luck.

Someone sent me a correspondence, recently unearthed from the National Archives at Kew, between a Home Office official, Brian Caffarey, and the chief constable of the West Midlands Police, Geoffrey Dear. It offers a few clues as to the official mindset when my book about the case, Error of Judgment, was published in 1986. ‘Chris Mullin,’ Dear writes, ‘is an individual of questionable motives.’ And at another point: ‘I do not need to labour less disingenuous motives for his behaviour.’ The implication seems to be that I was in league with the IRA. Is that still his opinion? A journalist from the Times asked Dear, who is now in the House of Lords, that question, and to my surprise he has changed his tune. ‘Although I and others saw Mr Mullin as an irrelevance and an irritation at the time, we were all proved wrong and he was proved right.’

Tuesday, 22 March is judgment day. This time there are rather more cameras waiting outside the Old Bailey as we file into court. The judgment has already been circulated to my lawyers so we know the outcome. It covers twenty pages, but is easily summarised. Mr Justice Lucraft has ruled that the material in my possession does indeed come within the scope of the Terrorism Act, but he declines to rule that there is an overriding public interest requiring me to disclose my sources. In short, we have won, but this is not a result that merits the popping of champagne corks. Although other journalists will understand the arguments, there is no reason why the general public should, let alone the relatives of those who died. Except in the unlikely event of the surviving culprits owning up, no one will ever be held to account for the Birmingham bombings. Had the West Midlands Police carried out a proper investigation at the time, instead of rounding up the first-half dozen Irishmen unlucky enough to fall into their hands, the outcome might have been very different.