When “maybe” isn’t good enough: orders for production of journalistic material

The efforts of the Beeb in the Divisional Court have clarified the conditions to be satisfied before a Court can require journalistic material be produced in criminal cases.

Experienced players will know a warrant under the Police and Criminal Evidence Act 1984 (PACE) cannot be used to obtain journalistic material. Police have to instead apply for a production order under the special procedure in Schedule 1 of PACE. Certain conditions have to be satisfied before an order can be made. One of them is that the material is “likely to be relevant evidence” (ie. likely to be “admissible at a trial for the offence”: see PACE s 8(4) and Sch 1, para 2(a)(iv)).

In The Queen (on the application of the British Broadcasting Corporation) v Newcastle Crown Court [2019] EWHC 2756 (Admin), the BBC was ordered to produce notes from a “mock interview” with a sexual assault complainant before a live interview.

The BBC argued the material was not “likely to be relevant evidence” because it was not, at the time of the application, “admissible at a trial for the offence”.

The short point (deftly sidestepping any detailed exposition of the law of criminal evidence) was this: the notes of the interview were not going to be admissible if it they were consistent with what the complainant said in evidence. The only way they could be admissible was if they were inconsistent with the complainant’s evidence at the trial. At the time the Newcastle Crown Court determined the application, the complainant had not yet given evidence. The notes were not admissible at that point, but might ultimately have been depending on the complainant’s evidence.

“Not good enough”, said the BBC – and the Divisional Court agreed. In relation to a similar statutory scheme, the House of Lords has previously ruled that it was necessary that the documents be “immediately admissible per se and without more”: R v Derby Magistrates’ Court, ex parte B [1996] AC 487. The Divisional Court found the Crown Court had been wrong to find that the House of Lords’ decision did not apply (§§34-52).

The take-away? Police need to be able to clearly explain why the material they are asking for is likely to be immediately admissible no matter what twists and turns the case might take. Equally, media organisations and journalists should be closely scrutinising these explanations.

Particular care is needed where the admissibility of the journalistic material is going to depend, for example, on the defendant’s conduct. Bad character evidence (admitted to correct a false impression given by the defendant, or because the defendant has made an attack on another person’s character: see Criminal Justice Act 2003 s 101) is an obvious example.

A final point of interest is the Divisional Court’s treatment of the public interest test (another access condition in PACE Sch 1, para 2(c)). The observations at §54 provide a useful steer about the relevant considerations at play:

A central reason for protecting journalistic material of the kind at issue in this case from disclosure is the risk that ordering its disclosure to the police would discourage people from speaking freely to the media. In particular, we accept the BBC’s submission that it is critical that the media are able to speak to sources, including alleged victims of sexual abuse, without those individuals fearing that a record made of their account by a journalist can be obtained by the police and made available to defence counsel to attack their credibility at trial. It seems to us, however, that the risk that ordering production of the material might have such a chilling effect is, at the very least, considerably diminished when – as in this case – the individual concerned has (a) chosen to waive anonymity when speaking live on air about his allegations of abuse and (b) given his express consent to the journalist’s record of what he said off-air being provided to the police. (Emphasis added)

Christopher Parkin @parkinchris