POLICE CANNOT RELY ON SECRET EVIDENCE WHEN SEEKING PRODUCTION ORDERS AGAINST MEDIA

The Supreme Court has handed down judgment in the case of R (BSkyB) v. Commissioner of Police for the Metropolis, Media Lawyers Association and Another intervening [2014] UKSC 17.  In an important ruling for media organisations and journalists, the Supreme Court has held that the police cannot rely upon secret evidence when seeking production orders against media organisations and journalists under the Police and Criminal Evidence Act 1984 (PACE). 

 

Production orders can have far-reaching ramifications for journalists and media organisations.  Under PACE, a police constable may apply to the courts for a Production Order requiring footage, documents and confidential source material to be handed over when certain conditions are fulfilled.  PACE recognises the seriousness of such a step. Under PACE, generally a magistrate has power (under s. 8) to issue a search warrant on an ex parte application by a constable if satisfied, among other things, that there are reasonable grounds for believing that an indictable offence has been committed and that there is material on the relevant premises which is likely to be of substantial value to the investigation. However, that general power does not apply in relation to material which is defined in the Act as “excluded material” (s. 11) or “special procedure material” (s. 14). 

 

“Excluded material” includes “journalistic material” which a person holds in confidence. “Special material procedure” includes journalistic material other than excluded material.  “Journalistic material” means material acquired or created for the purposes of journalism, provided that it in the possession of a person who acquired or created it for the purposes of journalism (s. 13). There is a special procedure for a constable to apply for access to excluded or special procedure material under s. 9 and schedule 1 of PACE.  The application has to be made to a circuit judge and paragraph 7 requires it to be made inter parties.  The issue in this appeal was whether on the hearing of such an application the court may have regard to evidence adduced by the applicant which has not been disclosed to the respondent.

 

Here, a judge had considered material not disclosed to BSkyB.  He conducted an ex parte hearing from which BSkyB were excluded, and considered material provided to him by the police which BSkyB had not seen.  He then granted a Production Order against BSkyB. The Administrative Court ruled that this was unlawful, and there is no power under PACE to hold such an ex parte hearing or to have a 'Closed Material Proceeding'.  It relied upon the statutory wording and the Supreme Court’s decision in Al Rawi v The Security Service [2011] UKSC 34, [2012] 1 AC 531.  The Metropolitan Police appealed to the Supreme Court, arguing that they are entitled to rely on secret evidence, not disclosed to the media, when applying for such Orders.  The Supreme Court has now unanimously rejected their appeal.

 

Lord Toulson stated that, "Compulsory disclosure of journalistic material is a highly sensitive and potentially difficult area. It is likely to involve questions of the journalist's substantive rights. Parliament has recognised this by establishing the special, indeed unique, procedure under section 9 and schedule 1 [of the Police and Criminal Evidence Act 1984] for resolving such questions.... The government had originally proposed that a production order might be made [by just one of the parties involved] but that proposal met opposition and was dropped … Equal treatment of the parties requires that each should know what material the other is asking the court to take into account in making its decision and should have a fair opportunity to respond to it."

 

Gavin Millar QC acted for BSkyB, the successful respondent in the appeal, instructed by Goodman Derrick LLP (Paul Herbert and Ellen Gallagher) and Matthew Hibbert of Sky Legal.

 

Caoilfhionn Gallagher represented the Media Lawyers' Association (MLA), which was granted permission to intervene in the appeal.  The MLA is a body which represents in-house lawyers at all national media organisations (newspapers and television channels), hundreds of local newspapers, press agencies and international newspapers and magazines.  She was instructed by Zoe Norden and Gill Phillips, of the MLA and Guardian News and Media.

 

The judgment is available here and the Supreme Court’s press summary is available here.

 

Coverage and further information is available here:

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