British Sky Broadcasting Ltd & Ors, R (on the application of) v Chelmsford Crown Court

Production orders directed to journalistic material require more than a formulaic recital of statutory conditions. The applicant must provide cogent, specific evidence showing what the footage is likely to reveal, why it is likely to have substantial value and relevant evidential value, and why obtaining it is necessary and proportionate having regard to other sources.

The judge must personally determine the access conditions and then exercise the statutory discretion compatibly with Article 10, even where those conditions are met. The reasons must identify the competing considerations and explain the conclusion. A speculative, indiscriminate request for extensive media footage cannot justify the interference.

Essex Police obtained production orders under Schedule 1 to the Police and Criminal Evidence Act 1984 requiring broadcasters and journalists to produce extensive footage of the Dale Farm evictions. The orders covered material recorded over two days and were sought to assist in identifying people suspected of violence and disorder.

The claimants sought judicial review, arguing that the statutory access conditions were not established, that the orders unjustifiably interfered with Article 10 rights, and that the Crown Court hearing had been unfair. The central issue was whether the evidence justified compulsory disclosure of the footage.

1. The claims succeeded and the production orders were quashed. The court held that the Crown Court judge had not been provided with evidence capable of establishing the access condition in Schedule 1 that the material was likely to be of substantial value to the investigation.

2. Under s 9 and Schedule 1 to the Police and Criminal Evidence Act 1984, the judge must personally be satisfied that the statutory access conditions are fulfilled. The application requires evidence, not merely a police assertion. The evidence must address what the footage is likely to reveal, its importance to the investigation, and the availability and value of other sources.

3. The proposed identification exercise was speculative. It depended on footage later showing a participant with a previously concealed face and a distinctive feature capable of being matched with images of a person involved in the earlier violence. That possibility could not be excluded, but the evidence did not show that it was more than remote. The police also failed to give a clear account of the material they had already obtained, its duration and content, or the additional value the claimants’ footage might provide.

4. Satisfaction of the access conditions would not itself authorise an order. The judge had to exercise the discretion judicially and compatibly with Article 10. The objective had to justify the inhibition of news gathering; the means had to be rational, fair and non-arbitrary; and the interference had to impair the right as little as reasonably possible. The court had to weigh the public interest in investigating violence against the importance of the press’s perceived neutrality and ability to obtain and disseminate information.

5. The Crown Court judge’s reasons merely asserted that there was a clear and compelling case and that a balancing exercise had been undertaken. They did not identify the factors on either side or explain why the orders were necessary and proportionate. The claimants were also denied a fair opportunity to challenge the asserted value of their material because the police did not disclose sufficient information about footage already held.

Lord Justice Moses agreed with the reasoning and emphasised that production orders against the media should not be easy to obtain, although the judgment did not discourage properly evidenced applications where material is genuinely likely to assist prosecution.

The judgment records no earlier appellate decision. It concerns judicial review of production orders made by the Chelmsford Crown Court on 15 February 2012.