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Supreme Court Dismisses the Appeal of Met Police and Refuses to Allow Secret Evidence in Application for a Production Order Against Sky News in Landmark Decision for Journalists

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

Background

The Met arrested two secret service officers in March 2011 for alleged breaches of the Official Secrets Act 1989.  The Met believed that both officers had long-standing relationships with one of Sky’s journalists and alleged that they had leaked information from COBRA meetings posing a threat to national security overseas and in the UK.  This information was then alleged to have appeared verbatim on Sky News’ live broadcast ticker.

The Met made an application for a production order requiring Sky 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 Sky, but which was disclosed to the court in a closed hearing at the Old Bailey.  Sky pointed out that it could not properly respond to the application without full disclosure by the Met of the evidence in support.  Nevertheless, HHJ Paget QC granted the Met’s application and ordered Sky to hand over the requested documents.

Sky successfully challenged this decision by way of judicial review.  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.  The Met appealed to the Supreme Court. 

Supreme Court Appeal

The question was whether the Divisional Court was correct in ruling that the fundamental principle of fairness applies to an application to the court for a production order. 

The Met argued that, unlike in an ordinary trial, no accusation or case was being made against Sky and the court had not been asked to determine Sky’s legal rights.  This being the case, the Met said there was no need, as a matter of fairness, for Sky to know all the evidence put forward in support of the production order.

However, Lord Toulson (with whom Lady Hale, Lord Kerr, Lord Reed and Lord Hughes unanimously agreed) accepted Sky’s argument that an application for a court order to access journalistic material constitutes a significant infringement on journalists’ legal rights.  Additionally, Lord Toulson acknowledged that Parliament had already set out the requirement for both sides to be heard in the statutory framework governing the obtaining of production orders of journalistic material (see paragraph 7 of Schedule 1 to the Police and Criminal Evidence Act 1984).   It was therefore contrary to the principle of fairness for Sky to be denied the opportunity to hear the full case against it and respond.

Conclusion

This case involves conflicting areas of public interest: the investigation and prosecution of crime versus the rights to privacy/confidentiality, free speech and a fair trial.  The judgment emphasises the importance of striking a balance between those competing interests.  In an application for a production order to obtain journalistic material, equal treatment of the parties requires that each party should know what material the court is being asked to consider and have a fair opportunity to respond.

Postscript

For journalists, one of the more worrying aspects of the Leveson inquiry was the recommendation that the Home Office consider making it easier for the police to access journalistic material.  The government then proposed removing certain provisions set out in  Schedule 1 of PACE (and to which the Supreme Court referred in this case) with the effect that the police would be able to rely on secret evidence in closed hearings to obtain production orders (Clause 47 of the Deregulation Bill).  Following successful lobbying by media organisations, the government has now agreed to look for ways to exempt journalism and all such media organisations from the clause. 

No doubt today’s decision of the Supreme Court will come as a welcome relief for journalists: the police are not entitled to obtain evidence through the back door.

12 March 2014

Please click here to see the Supreme Court's Judgment

Paul Herbert and Ellen Gallagher of Goodman Derrick LLP acted for Sky in conjunction with Matthew Hibbert of Sky Legal and Gavin Millar QC of Doughty Street Chambers.