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Just before Christmas, British Sky Broadcasting Limited (“Sky”) learned that it had succeeded in its application for Judicial Review of a PACE Production Order imposed upon it by Judge Paget at the Old Bailey in May 2011.  The Administrative Court emphatically quashed the Production Order obtained by the Metropolitan Police Service (“MPS”).

During 2011 MPS was investigating offences alleged to have been committed under section 1 of the Official Secrets Act 1989 (“OSA”) by two persons identified in the proceedings only as AB and CD.  MPS believed that one of Sky News’ journalists was in possession of material that could assist its investigation and requested that it hand over the following items:

• Emails between the journalist and AB and CD;
• Photographs disclosed by AB and CD to the journalist;
• Copies of broadcasts made by Sky News between certain dates; and
• Computer and electronic devices used by the journalist on behalf of Sky.

Sky objected on the grounds that this material included protected confidential and journalistic material.  

MPS therefore applied for a Production Order under the Police and Criminal Evidence Act 1984 (PACE). Part of its application relied upon “secret” evidence which was not disclosed to Sky but was nevertheless put before the Judge during a “closed procedure” hearing which took place in the absence of Sky and its lawyers.  Sky was therefore unable to hear or comment upon certain evidence put forward by MPS.  Judge Paget overruled Sky’s objections to this process and went on to issue a Production Order in the terms sought by MPS.

Sky applied for a Judicial Review of Judge Paget’s decision on the grounds that:

• The procedure was fundamentally unfair as Sky was not given the opportunity to respond to the secret material put before the Court;
• The Judge failed to give adequate reasons for finding that the conditions necessary for him to make the Order had been satisfied (i.e. that there were reasonable grounds to suspect that an offence under the OSA had been committed); 
• The Order amounted to an unjustified interference with Sky’s right to freedom of expression under Article 10 ECHR.

The Admin Court was satisfied that the procedure adopted at the Production Order application hearing was unlawful.  It ruled that the recent Supreme Court decision in Al Rawi v Security Service [2011] UKSC 34 applied, and this had held that a closed procedure hearing involves too great a departure from the fundamental requirements of open justice.  The Admin Court ruled:

MPS had argued that Al Rawi only applied to trials and not to procedural applications in aid of police investigations.  The Admin Court, however, saw no material distinction between a trial and any other form of contested proceedings.

Additionally, the Court held that Judge Paget did not have enough evidence on which to base his decision to make the Production Order.  A Detective Sergeant had given evidence that the information said to have been disclosed by AB and CD emanated from high-level COBRA meetings concerning military operations overseas and in the UK, some of it involving Special Forces operations and military tactics, which was likely to have endangered the lives of military personnel.  

The Court found it difficult to see the basis on which these disclosures had or might cause damage to the security or intelligence services or their work; the fact that materials discussed in COBRA meetings often contain security and intelligence material was not alone sufficient.  The Admin Court doubted that all information emanating from COBRA meetings could properly be described as damaging to the security or intelligence agencies or their work.

Having quashed the Production Order on the grounds above, the Admin Court did not consider it necessary to examine Sky’s arguments under Article 10. 

The Court’s decision upholds the fundamental principle of natural justice and provides important reassurance and protection for media organisations.  It will no longer be enough for police officers merely to rely on “national security” considerations to justify withholding evidence from the very people from whom it wishes to gather material.  This will also have wide-ranging implications for the police during the conduct of its investigations as it is likely to have to disclose all evidence upon which it seeks to rely when applying for Production Orders under PACE.

It should be noted that, so far we are aware, neither AB nor CD has, to date, been charged with any offence.

Goodman Derrick LLP assisted Sky’s Litigation Department in this case.  MPS has indicated that it will be seeking leave to appeal to the Supreme Court so the final chapter remains to be written.

Paul Herbert
Partner

Ellen Gallagher
Solicitor