British Sky Broadcasting Ltd, R (on the application of) v The Central Criminal Court & Anor

A contested application for a production order must be conducted fairly. Subject to public interest immunity, a party is entitled to know the evidence on which the application is based and to challenge it. A court has no common-law power to adopt a closed procedure merely because the material is sensitive; statutory authority is required. A public interest immunity decision is different: material withheld from one party must also be withheld from the court when determining the substantive application. Under Police and Criminal Evidence Act 1984, the access conditions for excluded or special procedure material must be established by sufficient evidence. The judge must be satisfied that there are reasonable grounds for suspecting that the relevant offence has been committed.

British Sky Broadcasting Ltd sought judicial review of a production order made by His Honour Judge Paget in the Central Criminal Court on 3 May 2011 under section 9 and Schedule 1 of the Police and Criminal Evidence Act 1984. The order required disclosure of journalistic material, including emails, photographs, broadcasts and records concerning two sources.

The Commissioner relied on open and secret evidence. The Crown Court judge considered the secret evidence ex parte, refused further disclosure, and made the order. The central issues were whether that procedure was lawful, whether the evidence established the statutory access conditions, and whether the order unjustifiably interfered with Article 10 rights.

1. Claim allowed. The production order was quashed.
2. The procedure adopted by the Crown Court was unlawful. The secret evidence was supplied to the judge as evidence in support of the application, was read by him, and was verified by sworn evidence given ex parte. B Sky B therefore had no opportunity to know or challenge evidence forming part of the case against it.
3. The principle in Al Rawi v Security Service [2011] UKSC 34 applies beyond a trial to other contested proceedings. A closed procedure cannot be adopted under the common law without statutory authority. It is fundamentally different from public interest immunity. If material is withheld on public interest immunity grounds, it should not form part of the evidence considered on the substantive application.
4. The court rejected the submission that the absence of material prejudice cured the procedural defect. A judge’s careful consideration of undisclosed evidence cannot substitute for the affected party’s opportunity to challenge it.
5. The court made additional observations on the evidence. The relevant access conditions under Schedule 1 required sufficient evidence of reasonable grounds for suspecting an offence under section 1(3) of the Official Secrets Act 1989. A description of material as originating from COBRA meetings and concerning military operations did not sufficiently establish that the disclosure caused, might cause, or was of a class likely to cause damage to the security or intelligence services or their work. Following R (Bright) v Central Criminal Court [2001] 1 WLR 662, the judge himself had to be satisfied that the access conditions were met.

This was a judicial review at first instance of a production order made by His Honour Judge Paget in the Central Criminal Court on 3 May 2011. The Administrative Court quashed that order.