The Queen (on the application of British Sky Broadcasting Ltd) v The Central Criminal Court The Commissioner of Police for the Metropolis and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moore-Bick |
| Judgment Date | 20 December 2011 |
| Neutral Citation | [2011] EWHC 3451 (Admin) |
| Docket Number | Case No: CO/4516/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 December 2011 |
[2011] EWHC 3451 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-Bick
and
Mr Justice Bean
Case No: CO/4516/2011
and
and
Mr. Gavin Millar Q.C. (instructed by Goodman Derrick LLP) for the claimant
Mr. James Lewis Q.C. and Miss Saba Naqshbandi (instructed by Metropolitan Police
Directorate of Legal Services) for the defendant and the Metropolitan Police Commissioner
Mr. Simon McKay (solicitor advocate) for AB
This is the judgment of the court to which both members have contributed.
Background
This is an application by British Sky Broadcasting Ltd ("B Sky B") for an order quashing a production order made by His Honour Judge Paget in the Central Criminal Court on 3 rd May 2011 in favour of the first interested party, the Commissioner of Police for the Metropolis ("the Commissioner") under section 9 and schedule 1 of the Police and Criminal Evidence Act 1984 ("PACE"). The order required B Sky B to produce within 14 days copies of various e-mails passing between one of its journalists and two named persons, one of whom is the interested party AB. (The other named person, CD, is not a party to these proceedings, but is likely to be affected by their outcome.) The order also required production of any photographs disclosed by AB or CD to the journalist, copies of broadcasts made by the journalist between certain dates, documents evidencing any payments made by the journalist to AB or CD, documents or records evidencing any claims for expenses made by the journalist in connection with AB or CD and documents and records showing all computer and electronic devices used by the journalist on behalf of B Sky B.
The primary ground on which B Sky B seeks judicial review is that what was described as "secret" evidence was made available to the judge in support of the application to which it was not given access and on which it was therefore not able to comment. The procedure by which the order was obtained is therefore said to have been fundamentally unfair and unlawful. The second ground of challenge is that the judge failed to give adequate reasons for finding that the conditions necessary to enable him to make the order were satisfied. B Sky B says that the sworn information supporting the application (sometimes referred to as the "redacted" evidence), was insufficient to support the findings of fact necessary to give the court jurisdiction. The third and fourth grounds are closely related but lead to the same conclusion, namely, that the judge ought not to have made the order, since it involves an unjustified interference with the rights of B Sky B under Article 10 of the European Convention on Human Rights ("ECHR"). Given the nature of these submissions, it is necessary to describe in a little detail the course of the proceedings. Before doing so, however, it is convenient to set out the relevant statutory provisions.
Section 9 of PACE provides:
"9.—Special provisions as to access.
(1) A constable may obtain access to excluded material 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.
(2) Any Act (including a local Act) passed before this Act under which a search of premises for the purposes of a criminal investigation could be authorised by the issue of a warrant to a constable shall cease to have effect so far as it relates to the authorisation of searches—
(a) for items subject to legal privilege; or
(b) for excluded material; or
(c) for special procedure material consisting of documents or records other than documents."
By virtue of sections 11 and 13 of the Act journalistic material, that is, material acquired or created for the purposes of journalism, is "excluded material" for the purposes of Schedule 1 if held in confidence. Journalistic material not held in confidence falls into the category of "special procedure material": see section 14(1). It is common ground that the material covered by the production order includes both excluded and special procedure material.
The relevant paragraphs of Schedule 1 for present purposes provide as follows:
"1. If on an application made by a constable a circuit judge is satisfied that one or other of the sets of access conditions is fulfilled, he may make an order under paragraph 4 below
…
3. The second set of access conditions is fulfilled if—
(a) 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 (including all such premises on which there are reasonable grounds for believing that there is such material as it is reasonably practicable so to specify);
(b) but for section 9(2) above a search of such premises for that material could have been authorised by the issue of a warrant to a constable under an enactment other than this Schedule; and
(c) the issue of such a warrant would have been appropriate.
4. An order under this paragraph 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 …
…
7. An application for an order under paragraph 4 shall be made inter partes."
A notice of application for a production order was served on B Sky B on 18th April 2011 in the name of Detective Sergeant Holt of the Metropolitan Police Service. It stated that an investigation was being carried out into offences under section 1 of the Official Secrets Act 1989 and was supported by an information sworn by DS Holt on 14th April 2011, to which it will be necessary to refer in greater detail in due course. At the same time there was also served on B Sky B a document headed "Application for a Production Order" drafted by counsel, which set out in some detail the nature of the arguments that the Commissioner intended to advance in support of the application. We were invited to treat it as an integral part of the application notice, although in substance it is more in the nature of a skeleton argument and that is how we shall refer to it. Paragraph 3 of that document stated as follows:
"Sky has been given a copy of the Notice seeking the Production Order and a copy of the information in support redacted to the extent that secret information has been excluded. The full information is to be provided to the judge including the redacted secret information."
Unsurprisingly, the service of that document generated some concern among B Sky B's legal advisers, since it appeared that the Commissioner intended to lay before the judge in support of the application evidence to which he did not intend them to have access. On 20th April 2011 one of B Sky B's legal advisers, Matthew Hibbert, wrote to the Metropolitan Police complaining that it had received only limited and general information of a kind that did not enable it to respond properly to the application. He also asked whether the offences being investigated were said to have been committed under section 1( 1) or 1(3) of the Official Secrets Act. On 20th April the police responded, saying that any further request for disclosure would have to be made to the trial judge and that the investigation was into possible offences under both sections 1(1) and 1(3).
In order to understand properly the course of the proceedings thereafter it is necessary to refer to the Official Secrets Act 1989 itself. Section 1(1) creates offences by members of the security and intelligence services and persons who have been formally notified that they are subject to the provisions of that subsection. Section 1(3), by contrast, creates offences by Crown servants or government contractors. It provides as follows:
"A person who is or has been a Crown servant or government contractor is guilty of an offence if without lawful authority he makes a damaging disclosure of any information, document or other article relating to security or intelligence which is or has been in his possession by virtue of his position as such but otherwise than as mentioned in subsection (1) above."
A "damaging disclosure" is defined in section 1(4) in the following way:
"For the purposes of subsection (3) above a disclosure is damaging if—
(a) it causes damage to the work of, or of any part of, the security and intelligence services; or
(b) it is of information or a document or other article which is such that its unauthorised disclosure would be likely to cause such damage or which falls within a class or description of information, documents or articles the unauthorised disclosure of which would be likely to have that effect."
That is supplemented by section 1(9) which provides as follows:
"In this section "security or intelligence" means the work of, or in support of, the security and intelligence services or any part of them, and references to information relating to security or intelligence include references to information held or transmitted by those services or by persons in support of, or of any part of, them."
Were the proceedings unfair?
The judge was provided in advance of the hearing with the materials the...
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