R (British Sky Broadcasting Ltd) v Central Criminal Court
| Jurisdiction | England & Wales |
| Judge | Lord Toulson,Lord Reed,Lady Hale,Lord Hughes,Lord Kerr |
| Judgment Date | 12 March 2014 |
| Neutral Citation | [2014] UKSC 17 |
| Date | 12 March 2014 |
| Court | Supreme Court |
[2014] UKSC 17
Lady Hale, Deputy President
Lord Kerr
Lord Reed
Lord Hughes
Lord Toulson
Appellant
James Lewis QC
Saba Naqshbandi
(Instructed by Metropolitan Police Directorate of Legal Services)
Respondent
Gavin Millar QC
(Instructed by Goodman Derrick LLP)
Intervener (AB)
Simon McKay
(Instructed by McKay Law Solicitors and Advocates)
Intervener (Media Lawyers Association)
Caoilfhionn Gallagher
(Instructed by Media Lawyers Association)
Heard on 3 December 2013
Lord Toulson (with whom Lady Hale, Lord Kerr, Lord Reed and Lord Hughes agree)
The Police and Criminal Evidence Act 1984 ("PACE") consolidated various police powers to obtain evidence for the purposes of a criminal investigation. Generally, a magistrate has power under section 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" (section 11) or "special procedure material" (section 14).
"Excluded material" includes "journalistic material" which a person holds in confidence. "Special procedure material" 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 (section 13).
There is a special procedure for a constable to apply for access to excluded or special procedure material under section 9 and schedule 1. The application has to be made to a circuit judge and paragraph 7 requires it to be made inter partes.
The issue in this appeal is 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. The Administrative Court held that it was impermissible but certified the question as one of general public importance. In reaching its conclusion the court relied on the statutory wording and on the decision of this court in Al Rawi v The Security Service [2011] UKSC 34, [2012] 1 AC 531. The Metropolitan Police Commissioner ["the Commissioner"] appeals against the decision.
On 2 March 2011 police arrested two officers serving in the armed forces, AB and CD, on suspicion of offences under section 1( 1) or 1(3) of the Official Secrets Act 1989. The investigation concerned the suspected leaking of top secret information from meetings of the Cabinet security committee known as COBRA (short for Cabinet Office Briefing Room A) by the two officers to B Sky B's security editor, Mr Sam Kiley. In July 2012 (about the same time as permission was given for the present appeal) the investigation was closed and the officers were told that no proceedings would be brought against them. The appeal is therefore now academic as far as they are concerned, but it is pursued by the Commissioner because of the wider importance of the point of law which it raises.
Under section 1(1) of the Official Secrets Act 1989 it is an offence for a person who is or has been a member of the security and intelligence services, or who has been notified that he is subject to the provisions of the subsection, to make an unauthorised disclosure of intelligence which is in his possession by reason of his position.
Under section 1(3) it is an offence for a present or former Crown servant to make an unauthorised and damaging disclosure of intelligence in his possession by reason of his position, but not within section 1(1).
In brief, a disclosure is defined as damaging if it causes damage to the work of any part of the security and intelligence services, or is of information, a document or other article, or within a class of information, document or other article, whose unauthorised disclosure would be likely to have that effect.
Sam Kiley is a journalist who has for many years specialised in covering international affairs and homeland security, first in print journalism (becoming the chief foreign correspondent for the London Evening Standard) and more recently in broadcast journalism. In 2008 he was an "embedded" journalist for a period of months within an air assault brigade in Afghanistan, where he was introduced to AB. CD was also serving in Helmand at the same time. Through his work Mr Kiley has established contacts with many senior military personnel.
On the day after AB and CD were arrested, the police informed B Sky B that a criminal investigation had begun and asked for disclosure of various documents including copies of all emails between Mr Kiley and the two officers since October 2010. After inconclusive discussions between the two organisations, on 14 April 2011 the police served an application for a production order under schedule 1, paragraph 4, supported by a statement signed by Detective Sergeant Holt. The statement asserted that technical work on the two officers' computers and mobile phones showed that information had been sent by them to Mr Kiley after Cobra meetings which had then appeared almost immediately on the B Sky B ticker; that in interviews after their arrest the officers had admitted passing information to Mr Kiley; and that if the unauthorised information had become known to hostile forces it was likely to have endangered the lives of military personnel.
Section 9 of PACE removes any pre-existing power to authorise a search of premises for excluded or special procedure material, but provides instead for a constable to be able to obtain access to such material for the purposes of a criminal investigation by making an application under schedule 1.
Under paragraph 4 of the schedule, if the judge is satisfied that one or other of two sets of access conditions is fulfilled, he may make a production order, that is
"an order that the person who appears to the circuit judge to be in possession of the material to which the application relates shall
a. produce it to a constable for him to take away; or
b. give a constable access to it,
not later than the end of the period of 7 days from the date of the order or the end of such longer period as the order may specify".
The two sets of access conditions are specified in paras 2 and 3. The application was made under both although the first set does not apply to excluded material.
The requirements of the first set include that there are reasonable grounds for believing:
"that an indictable offence has been committed;
that there is special procedure material on the premises specified in the application or on premises occupied or controlled by a person specified in the application;
that the material is likely to be of substantial value to the investigation in connection with which the application is made;
and that the material is likely to be relevant evidence."
The judge must also be satisfied that a production order is in the public interest, having regard to the benefit likely to accrue to the investigation if the material is obtained and to the circumstances under which the person in possession of the material holds it.
The requirements of the second set of access conditions are that:
"there are reasonable grounds for believing that there is material which consists of or includes excluded material or special procedure material on premises specified in the application, or on premises occupied or controlled by a person specified in the application…..;
but for section 9(2) a search of such premises could have been authorised by the issue of a warrant to a constable under an enactment other than the schedule; and
the issue of such a warrant would have been appropriate."
Paragraph 15 provides that if a person fails to comply with an order under paragraph 4, a circuit judge may deal with him as if he had committed a contempt of the Crown Court.
The court has a power to issue a search warrant in limited circumstances. These are specified in paragraphs 12 and 14. They include a situation where a circuit judge is satisfied that either set of access conditions is fulfilled but also that service of notice of an application for a production order may seriously prejudice the investigation.
The application was heard on 26 April and 3 May 2011 by His Honour Judge Paget QC at the Central Criminal Court. The judge had been provided with the parties' skeleton arguments, the statement of D Sgt Holt and a statement by the managing editor of Sky News, Mr Thomas Cole. The Commissioner's skeleton argument indicated that he wished to put further evidence from D Sgt Holt before the judge in the absence of B Sky B's representatives. B Sky B objected to that course and resisted the application for a production order on various grounds. It submitted that nearly all the information sought by the police was excluded material and therefore the second set of access conditions had to be satisfied. It also disputed that either set was fulfilled. It pointed out that there was...
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