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Goodman Derrick LLP Act for BSKyB in High-Profile Supreme Court Case
Goodman Derrick recently acted for BSkyB in a case heard in the Supreme Court (The Commissioner of Police of the Metropolis (Appellant) v British Sky Broadcasting Limited (Respondent) and AB/Media Lawyers Association (Interveners) UKSC 2012/0115).
The Met appealed against BSkyB’s successful judicial review of the Central Criminal Court’s decision to grant a Production Order.
The Met was investigating two secret service officers for alleged breaches of the Official Secrets Act 1989. The Met stated that both officers had long-standing relationships with one of BSkyB’s journalists and alleged that they had leaked information posing a threat to national security from COBRA meetings. This information was then alleged to have appeared verbatim on Sky News’ ticker tape running across the bottom of the television screen.
The Met made an application to the court for a Production Order requiring BSkyB to hand over a wide range of documents which it said would assist with the investigation. The application relied upon “secret evidence” not disclosed to BskyB, but which was disclosed to the court. BSkyB said that it could not properly respond to the application without full disclosure by the Met of the evidence in support. The Met refused to supply the full evidence and the matter proceeded to court.
HHJ Paget QC agreed at the Old Bailey to part of the hearing being held in closed session with neither BSkyB nor its legal representatives allowed in the courtroom to hear the secret evidence. The judge then granted the Met’s application and ordered BSkyB to hand over the requested documents.
BSkyB successfully challenged this decision by way of judicial review, (R (on the application of British Sky Broadcasting Limited v Central Criminal Court  EWHC 3451(Admin)). The Administrative Court ruled that it is a fundamental principle of fairness for a party to have access to all the evidence on which the case against him is based, relying on the Supreme Court’s decision in Al Rawi v Security Service  UKSC 34 as its authority.
Supreme Court Appeal
The appeal to the Supreme Court is concerned with whether the police are able to rely on undisclosed “secret” evidence and secret hearings in procedural applications (as opposed to in a trial, as in Al Rawi) pursuant to the Police and Criminal Evidence Act 1984 (“PACE”).
The provisions of PACE do not expressly permit the police to rely on secret evidence. The Met therefore put forward the argument that the inherent jurisdiction of the court permits it to hear secret evidence and without all sides being represented in court.
BSkyB contended that the right to a fair trial and the right to hear all of the evidence are so fundamental that any change to the law can only be brought about by Parliament.
The appeal was televised live on the Supreme Court’s internet stream before Lady Hale and Lords Kerr, Reed, Hughes and Toulson. The Media Lawyers Association and AB (one of the secret service officers) intervened in the case. Judgment is expected to be handed down by the Court in Spring 2014.
The Met argued that the outcome of the appeal to the Supreme Court may have a significant impact on the police’s ability to rely on secret evidence and closed material procedures in the course of its investigations. Correspondingly, BSkyB highlighted the wide-reaching implications for the principle of natural justice and the right of media organisations to protect confidential and journalistic information.
Interestingly no charges were ever brought against the secret service officers and the Met subsequently confirmed that their criminal investigation is closed.
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