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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> British Sky Broadcasting Ltd & Ors, R (on the application of) v Chelmsford Crown Court [2012] EWHC 1295 (Admin) (17 May 2012) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2012/1295.html Cite as: [2012] 2 Cr App R 454, [2012] EWHC 1295 (Admin) |
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Case No: CO/2142/2012 |
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
and
MR JUSTICE EADY
____________________
THE QUEEN on the application of (1) BRITISH SKY BROADCASTING LTD (2) INDEPENDENT TELEVISION NEWS LTD (3) THE BRITISH BROADCASTING CORPORATION (4) HARDCASH PRODUCTIONS LTD (5) JASON NEIL PARKINSON |
Claimants |
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- and - |
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CHELMSFORD CROWN COURT - and - ESSEX POLICE |
Defendant Interested Party |
____________________
James Lofthouse (instructed by Essex Police Legal Department) for the Interested Party
Hearing date: 25 April 2012
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Crown Copyright ©
Mr Justice Eady :
"A constable may obtain access to excluded or special procedure material for the purposes of a criminal investigation by making an application under Schedule 1 below and in accordance with that Schedule."
The term "excluded material" is defined, so far as relevant, in s.11 of the Act, as follows:
"(1) Subject to the following provisions of this section, in this Act 'excluded material' means –
…
(c) journalistic material which a person holds in confidence and which consists –(i) of documents; or(ii) of records other than documents.
(2) A person holds material other than journalistic material in confidence for the purposes of this section if he holds it subject –
(a) to an express or implied undertaking to hold it in confidence; or(b) to a restriction on disclosure or an obligation of secrecy contained in any enactment, including an enactment contained in an Act passed after this Act.
(3) A person holds journalistic material in confidence for the purposes of this section if –
(a) he holds it subject to such an undertaking, restriction or obligation; and(b) it has been continuously held (by one or more persons) subject to such an undertaking, restriction or obligation since it was first acquired or created for the purposes of journalism."
The term "journalistic material" is defined by s.13 as follows:
"(1) Subject to subsection (2) below, in this Act 'journalistic material' means material acquired or created for the purposes of journalism.
(2) Material is only journalistic material for the purposes of this Act if it is in the possession of a person who acquired or created it for the purposes of journalism.
(3) A person who receives material from someone who intends that the recipient shall use it for the purposes of journalism is to be taken to have acquired it for those purposes."
"(1) In this Act 'special procedure material' means –
(a) material to which subsection (2) below applies; and(b) journalistic material, other than excluded material.
… "
"(1) If on an application made by a constable a judge is satisfied that one or other of the sets of access conditions is fulfilled, he may make an order under paragraph 4 below.
(2) The first set of access conditions is fulfilled if –
(a) there are reasonable grounds for believing –(i) that an indictable offence has been committed;(ii) that there is material which consists of special procedure material or includes special procedure material and does not also include excluded material on premises specified in the application …(iii) that the material is likely to be of substantial value (whether by itself or together with other material) to the investigation in connection with which the application is made; and(iv) that the material is likely to be relevant evidence;(b) other methods of obtaining the material –(i) have been tried without success; or(ii) have not been tried because it appeared that they were bound to fail; and(c) it is in the public interest, having regard –(i) to the benefit likely to accrue to the investigation if the material is obtained; … "
"In my judgment … it is clear that the judge personally must be satisfied that the statutory requirements have been established. He is not simply asking himself whether the decision of the constable making the application was reasonable, nor whether it would be susceptible to judicial review on Wednesbury grounds … . This follows from the express wording of the statute, 'If … a circuit judge is satisfied that one … of the sets of access conditions is fulfilled'. The purpose of this provision is to interpose between the opinion of the police officer seeking the order and the consequences to the individual or organisation to whom the order is addressed the safeguard of a judgment and decision of a circuit judge. …
In my judgment it is equally clear that the constable making the application must satisfy the judge that the relevant set of conditions is established. This appears to follow as an elementary result of the fact that an order will force or oblige the individual against whom it is made to act under compulsion when, without the order, he would be free to do otherwise. … And I should emphasise that, under the rules currently under consideration, grounds for belief, not merely grounds for suspicion, are required, and the material to be produced or disclosed is not merely general information which might be helpful to police inquiries, but evidence in the sense in which that term is applied in the Crown Court, 'relevant and admissible' at a trial."
If, and only if, the access conditions are satisfied, the court would then have a discretion, to be exercised judicially, in the light of a balancing exercise to be carefully conducted on the facts of the individual case.
"47. There is no disagreement between the parties as to the relevant legal principles. Courts are public authorities under s.6(3) of the Human Rights Act 1998 (the HRA). Accordingly, a production order cannot be made if and to the extent that it would violate a person's Convention rights. The discretion conferred by para 6 must be exercised compatibly with an affected person's Convention rights even if the two access conditions are satisfied.
48. The correct approach to the Art 10 issues as articulated in both the Strasbourg jurisprudence and our domestic law emphasises that: (i) the court should attach considerable weight to the nature of the right interfered with when an application is made against a journalist; (ii) the proportionality of any proposed order should be measured and justified against that weight; and (iii) a person who apples for an order should provide a clear and compelling case in justification of it."
His Lordship added at [56]:
"In our view, it is relevant to the balancing exercise to have in mind the gravity of the activities that are the subject of the investigation, the benefit likely to accrue to the investigation and the weight to be accorded to the need to protect the sources. … "
"In this case I have heard Detective Jennings (sic) give evidence. He was cross-examined by the respondents. He explained clearly to me the vantage points from which the police and the bailiffs' cameras were filming and why any footage that the respondents had taken from a different position both before and during and after the incidents of violent disorder were likely to be of substantial assistance both in relation to incidents of violence and identifying those involved over one or two days.
It is clear from the evidence that the respondents have placed before me that they all do have to a certain extent unbroadcast material. I have listened to the respondents' submissions in respect of disclosure with care, and I specifically reject the assertion that the police should make available for them to consider all the hours of footage that they (the police) hold. The issue of disclosure is for the court. It is for the court to decide whether there has been sufficient material placed before it to enable it to make an informed decision in each case as to whether the material is of substantial value.
In my judgment, on the evidence both oral and that filed, there has been sufficient disclosure made to me to enable me to be satisfied against all the respondents that the material sought over both days is likely to be of substantial value.
Pursuant to Schedule 1 paragraph 2(a)(iv), the court is further required to consider whether the material is likely to be relevant. Clearly in my judgment any material which goes towards the identification of an as yet unknown person committing an indictable offence must be relevant, and any material which goes to the corroboration of an allegation against a known suspect that he committed an offence to which he stands charged again must be relevant evidence."
"Where, as in the present case, measures taken by the national authorities are capable of discouraging the press from disseminating information on matters of legitimate public concern, careful scrutiny of the proportionality of the measures on the part of the court is called for."
Here, it is argued that production orders of this scope are indeed capable of discouraging those responsible for visual news coverage from carrying out their task. If the perception takes hold that such people are working on behalf of the police, or are likely to co-operate with them by supplying such material routinely, life could become very difficult. They might find it more difficult to obtain access to areas where demonstrations are taking place or to work in the vicinity of those who are prone to violence. Moreover, at its most acute, the perception could increase the risk of violence towards cameramen or their equipment. At the moment, to the extent that they are perceived as being separate from the police and relatively neutral when disputes are taking place, they have more opportunity of carrying out their task and, correspondingly, the public has a greater opportunity of receiving the coverage they intend to provide. All the judge had to say on this topic was that he did not accept the assertion of Mr Parkinson " … that if he was forced to hand over the material he would be seen as part of the police and would thus lose his objectivity and independence". The point is not that he would be actually losing his objectivity or independence, but rather that he would be disadvantaged by the perception of others.
"Taking all the evidence I have heard into account, and mindful of my discretion and the balancing exercise I need to perform, I am of the opinion that there is in the first respondent's case a clear and compelling case for disclosure of the material held by Mr Parkinson, and I so rule, and I make the required Production Order."
Similar observations were made in relation to the material of the other Claimants. Yet more is required than merely to cite the words "balancing exercise" and assert that it has been carried out. The factors being taken into account, on both sides, clearly need to be identified and the reasons for coming down on one side rather than the other should be spelt out. The Claimants are entitled to no less.
Lord Justice Moses: