R v The Commissioner of Police of the Metropolis

An inter partes application for a production order requiring access to journalistic material must be determined only on evidence disclosed to both parties. Equal treatment requires each party to know the material which the other asks the court to consider and to have a fair opportunity to answer it. The court cannot admit secret evidence supporting the application merely because disclosure may prejudice a criminal investigation.

This rule does not prevent an ex parte application for public interest immunity. That procedure determines whether evidence should be admitted at all. If evidence is admitted in support of a production-order application under section 9 and Schedule 1 to the Police and Criminal Evidence Act 1984, the statutory requirement for an inter partes hearing precludes its receipt ex parte.

The police sought a production order under section 9 and Schedule 1 to the Police and Criminal Evidence Act 1984 for journalistic material held by British Sky Broadcasting Limited. The material concerned suspected unauthorised disclosures by two armed forces officers to a journalist. The circuit judge heard part of the supporting police evidence in B Sky B’s absence and made the order.

The Administrative Court quashed the order in [2011] EWHC 3451 Admin. It held that the closed procedure was unlawful and that the disclosed evidence was insufficient. Although the investigation had subsequently ended, the Commissioner appealed because the procedural issue was of wider importance.

The central question was whether, on an application which paragraph 7 of Schedule 1 requires to be made inter partes, the court may consider evidence which has not been disclosed to the respondent.

1. Appeal dismissed unanimously. Lord Toulson delivered the judgment, with which Lady Hale, Lord Kerr, Lord Reed and Lord Hughes agreed. Paragraph 7 of Schedule 1 to the Police and Criminal Evidence Act 1984 did not permit the circuit judge to receive undisclosed evidence in support of the production-order application. The Administrative Court therefore correctly quashed the order.

2. The statutory scheme balances effective criminal investigation against protection of personal and property rights. Compulsory disclosure of confidential journalistic material is particularly sensitive and may determine substantive rights, including interests associated with protecting journalistic sources. Parliament addressed that sensitivity through the special procedure under section 9 and Schedule 1.

3. An application for a production order creates a lis between the applicant and the person against whom the order is sought. The direction in paragraph 7 that the application be made inter partes requires equal procedural treatment. Each party must know the material which the other asks the court to consider and must have a fair opportunity to respond. Secret evidence which materially strengthens the police case may cause obvious prejudice because the respondent cannot anticipate or answer it.

4. The general position may differ where a litigant uses an ancillary procedural power to obtain evidence from a non-party. Such an application ordinarily determines no substantive right between applicant and respondent and may properly be made ex parte. The present statutory procedure was different because it governed compulsory access to sensitive journalistic material and expressly required an inter partes application.

5. The decision in R (Malik) v Manchester Crown Court did not establish a contrary power. Although it approved the appointment of a special advocate in proceedings under the Terrorism Act 2000, the existence of power to order a closed procedure without statutory authorisation had not been argued.

6. The ruling did not prevent the court from hearing a public interest immunity application ex parte. Such an application concerns whether evidence should be admitted at all. Once evidence is admitted in support of a section 9 production-order application, the inter partes requirement is inconsistent with its being received ex parte. Any assessment of the wider effect upon police investigations and responsible journalism was for Parliament, not for the court when construing the statutory scheme.

1. United Kingdom Supreme Court: The Commissioner’s appeal was dismissed unanimously. The court affirmed that the production order had been correctly quashed: [2014] UKSC 17.

2. Administrative Court: Moore-Bick LJ and Bean J quashed the production order because the circuit judge had unlawfully received undisclosed evidence. The court also considered the disclosed evidence insufficient: [2011] EWHC 3451 Admin.

3. Central Criminal Court: His Honour Judge Paget QC heard part of the police evidence ex parte and made the production order under section 9 and Schedule 1 to the Police and Criminal Evidence Act 1984.