R (British Sky Broadcasting Ltd) v Commissioner of Police of the Metropolis

The police applied for an order against  BSkyB under  Section 9 and schedule 1 of the Police and Criminal Evidence Act 1984 (PACE) which provides a special procedure for a constable to apply for access to journalistic material which is otherwise protected from search warrants granted under of PACE. The application for a production order has to be made to a circuit judge and, pursuant to paragraph 7 of schedule 1, inter partes (i.e. with all parties present). The evidence sought material relating to two armed forces officers arrested on suspicion of offences under the Official Secrets Act 1989, namely the suspected leaking of secret information to BSkyB’s security editor.

During the course of the hearings, Judge Paget QC allowed a police application to hear part of the evidence ex parte in the absence of BSkyB’s representatives. BSkyB had opposed the application. Noting that the evidence which he had heard ex parte did not detract from or assist the arguments put forward by BSkyB, Judge Paget QC made the production order.

Following BSkyB’s objections, the Administrative Court quashed the order. Applying the reasoning in Al Rawi v The Security Service [2011] UKSC 34, the Court found that the procedure adopted at Central Criminal Court hearing was unlawful.

About the same time as permission was given to the appeal to the Supreme Court, the criminal investigation against the two officers was closed. The appeal, nevertheless, was pursued by the Commissioner because of the wider importance of the point of law which it raised.

Whether on the hearing of an application under Schedule 1 of PACE the court may have regard to evidence adduced by the applicant which has not been disclosed to the respondent.

Lord Toulson, delivering the judgment, referred to the general principle affirmed in Al Rawi that in a civil trial, just as in a criminal trial, the use of a closed material procedure was so alien to the right of a party to know the case advanced by the opposing party and to have a fair opportunity to respond to it as to be permissible only by Act of Parliament.

These proceedings were not a trial in the ordinary sense but a special form of statutory procedure. As a general proposition the court should not apply the Al Rawi principle to an application made by a party to litigation (or prospective litigation) to obtain evidence for the purpose of the litigation from somebody who is not a party or intended party to the litigation. Such an application would not ordinarily involve the court deciding any question of substantive legal rights as between the applicant and the respondent, rather, it was an ancillary procedure designed to see that evidence was made available to the court. Applications of this kind, such as an application for a witness summons were typically made ex parte.

The present situation, however, was different as the compulsory disclosure of journalistic material was likely to involve questions of the journalist’s substantive rights. Parliament had recognised this by establishing the special procedure under PACE. The appeal therefore turned on the meaning and effect of paragraph 7 of schedule 1 which requires the hearing to be inter partes. Upon making an application for a production order, a lis existed between the person making the application and the person against whom it was made, which might later arise between the police and the suspected person through a criminal charge. Equal treatment required that each should know what material the other was asking the court to take into account in making its decision and should have a fair opportunity to respond to it. This was inherent in the concept of an inter partes hearing.

Therefore it had not been permissible for the judge to hear part of the appellant’s evidence ex parte.

For the avoidance of doubt, Lord Toulson specified that the ruling did not prevent a court from hearing a public interest immunity application ex parte.

This decision makes clear that if evidence is to be admitted in support of a production order application made under the special procedure, the entirety of the evidence must be heard in public. The Supreme Court took care in reaching it decision not by extending the Al Rawi ratio widely but rather by focusing on the statutory wording and the special circumstances of the case – namely the journalistic material involved.

It is also interesting to note the Supreme Court’s final comment that it had no way of assessing reliably the extent to which this decision may impede the use of the section 9 procedure, nor of balancing the corresponding ill effect on responsible journalism of a decision the other way. Although it stated that these were matters for Parliament, the Supreme Court noted that applications under section 9 against journalists appeared to be rare and in any event, that the availability of more detailed information ought not to affect the interpretation of the statutory scheme.

The Lawyer - Supreme Court dismisses police appeal and refuses to allow secret evidence in application for production order against Sky News
The Guardian - Police prohibited from using secret evidence to seize media materials