R (on the application of British Sky Broadcasting Ltd) v The Commissioner of Police of the Metropolis [2014] UKSC 17

The Supreme Court held that on an inter partes application for a production order under section 9 and schedule 1 of PACE 1984, the court cannot receive evidence from the police ex parte which is withheld from the respondent journalist. The Commissioner's appeal was dismissed.

Facts

In March 2011, two armed forces officers, AB and CD, were arrested on suspicion of offences under section 1(1) or 1(3) of the Official Secrets Act 1989, in connection with the suspected leaking of top secret information from COBRA meetings to Sam Kiley, B Sky B’s security editor. The police sought disclosure from B Sky B of emails between Mr Kiley and the two officers.

Following inconclusive negotiations, the Commissioner applied under paragraph 4 of schedule 1 to the Police and Criminal Evidence Act 1984 (“PACE”) for a production order in respect of special procedure and excluded material. At the hearing before His Honour Judge Paget QC at the Central Criminal Court, the Commissioner sought to adduce part of Detective Sergeant Holt’s evidence ex parte, in the absence of B Sky B’s representatives. B Sky B objected. The judge nonetheless heard part of the evidence ex parte and made the production order, stating that the secret evidence “amplifies in greater detail the information set out in the open information disclosed to B Sky B” and that it did “not detract from or assist the arguments put forward by B Sky B”.

The Administrative Court (Moore-Bick LJ and Bean J) quashed the order, applying the reasoning in Al Rawi v The Security Service [2011] UKSC 34. The investigation was subsequently closed without charges, but the Commissioner pursued the appeal on the point of law.

Issues

The central issue was whether, on the hearing of an inter partes application for a production order under section 9 and schedule 1 of PACE, the court may have regard to evidence adduced by the applicant which has not been disclosed to the respondent.

Arguments

For the Commissioner

Mr Lewis QC argued that the reasoning in Al Rawi should not apply to a section 9 application, which was not an ordinary trial but an evidence-gathering exercise for a criminal investigation. No accusation was being made against B Sky B and no determination of its legal rights was in issue. Fairness did not require B Sky B to know the full evidence supporting the police’s suspicion of criminal offences. Compulsory disclosure of full police evidence in an Official Secrets Act investigation could itself endanger national security. Reliance was placed on R (Malik) v Manchester Crown Court [2008] 4 All ER 403.

For B Sky B

Mr Millar QC contended that an application for compulsory access to journalistic material held in confidence involves a significant interference with the journalist’s legal rights, so the application did involve a determination of rights. B Sky B was entitled to a fair opportunity to challenge the Commissioner’s assertion that the access conditions were met, particularly any suggestion of future damage to national security through further unpublished information held by Mr Kiley. B Sky B had offered undertakings to restrict who would see the evidence, which the police refused.

Judgment

Lord Toulson, with whom the rest of the Court agreed, dismissed the appeal.

The Court accepted as a general proposition that the Al Rawi principle would not apply to applications by a party to litigation to use the court’s procedural powers to obtain evidence from a non-party, because such applications do not ordinarily involve determination of substantive rights between applicant and respondent. Such applications, like witness summonses, are typically made ex parte.

However, the present situation was different. Compulsory disclosure of journalistic material is a highly sensitive area likely to involve questions of the journalist’s substantive rights. Parliament had recognised this by establishing the unique procedure under section 9 and schedule 1. Lord Toulson cited Bingham LJ in R v Lewes Crown Court ex parte Hill (1991) 93 Cr App R 60, who identified the balance PACE struck between the public interest in investigating crime and protecting personal and property rights of citizens:

The 1984 Act seeks to effect a carefully judged balance between these interests and that is why it is a detailed and complex Act. If the scheme intended by Parliament is to be implemented, it is important that the provisions laid down in the Act should be fully and fairly enforced.

The decisive point turned on the meaning and effect of paragraph 7 of schedule 1, which requires the application to be made “inter partes”. Parliament had considered but rejected a proposal that production orders could be made ex parte. The Court held that when such an application is made, there is a lis between the parties, and equal treatment requires that each should know what material the other is asking the court to consider and should have a fair opportunity to respond. This is “inherent in the concept of an ‘inter partes’ hearing”.

The Court distinguished public interest immunity applications, which may still be heard ex parte, because those concern whether evidence is admitted at all. Where evidence is to be admitted in support of a production order application, the inter partes requirement is inconsistent with ex parte evidence.

Reliance on Malik was rejected because, as Lord Dyson had noted in Al Rawi, there had been no argument in that case about the court’s power to order a closed material procedure absent statutory authority.

Implications

The decision confirms that under the statutory scheme in section 9 and schedule 1 of PACE, a court hearing an application for a production order against a journalist (or other holder of excluded or special procedure material) cannot receive evidence from the applicant which is withheld from the respondent. The requirement that the hearing be inter partes carries with it the requirement that each party know the material on which the other relies and has a fair opportunity to respond.

The judgment preserves the general position that ancillary procedural applications for evidence against non-parties may typically proceed ex parte, but treats section 9 applications as different because they engage substantive rights of the journalist, particularly rights concerning confidential material and sources. The Court noted the sensitivity of applications which may seek to compel disclosure of journalistic sources, given the impact on responsible journalism.

The ruling does not prevent PII applications from being heard ex parte, as these raise a different question concerning admissibility. Lord Toulson acknowledged that the Court could not reliably assess the practical impact on the use of the section 9 procedure or on responsible journalism, observing that these are matters for Parliament. Most section 9 applications are against banks and professional advisers and are seldom contested; applications against journalists appear rare.

The decision is significant for media organisations, police investigators, and legal practitioners advising on production orders. It reinforces procedural fairness and open justice in a context where journalistic material is sought, and situates the outcome firmly within the statutory construction of PACE rather than as a general extension of the Al Rawi principle.

Verdict: The appeal was dismissed. The Supreme Court held that it was not permissible for the judge to hear part of the Commissioner’s evidence ex parte on an inter partes application for a production order under section 9 and schedule 1 of PACE 1984, and the Administrative Court’s decision quashing the production order was upheld.

Source: R (on the application of British Sky Broadcasting Ltd) v The Commissioner of Police of the Metropolis [2014] UKSC 17