The British Broadcasting Corporation (BBC), R (On the Application Of)

For a production order under section 9(1) and Schedule 1 of the Police and Criminal Evidence Act 1984, the statutory purpose is assessed by identifying the dominant purpose of the application. A criminal investigation includes pursuing reasonable lines of enquiry that may assist either the prosecution or the defence.

Material is not likely to be “relevant evidence” merely because it may become admissible after a future event at trial. It must be likely, if produced, to be immediately admissible without more. The requirement applies by analogy with the rule in R v Derby Magistrates’ Court, ex parte B [1996] AC 487. A production order made without reasonable grounds satisfying that condition is unlawful.

The BBC sought judicial review of a production order made by Newcastle Crown Court during the trial of George Ormond. The order required production of a journalist’s typed note recording an off-air interview with a prosecution witness.

The Crown Court judge found that the statutory conditions in Schedule 1 of the Police and Criminal Evidence Act 1984 were satisfied. The BBC challenged the decision on four grounds: statutory purpose, substantial value, relevant evidence, and the public interest balance under article 10 of the Convention.

The note was produced under protest before the judicial review was heard. The central issue was whether the statutory condition concerning likely relevant evidence was satisfied where admissibility depended on what occurred at trial.

1. Purpose. The application was made for the dominant purpose of pursuing a reasonable line of enquiry in a criminal investigation. A criminal investigation includes obtaining material that may assist the defence as well as the prosecution. Although the prosecutor’s disclosure duty applies to material in the prosecutor’s possession or inspected by the prosecutor, investigators must take reasonable steps to obtain relevant third-party material. The first ground therefore failed.
2. Substantial value. The journalist’s note could have assisted either side. It might reveal an inconsistency supporting an attack on the witness’s credibility, or a prior consistent account assisting the prosecution in rebutting an allegation of fabrication. The judge was entitled to regard the material as likely to be of substantial value. The second ground failed.
3. Relevant evidence. The phrase “likely to be relevant evidence” in Schedule 1, paragraph 2(a)(iv), read with section 8(4), requires a reasonable belief that the material, if produced, will be immediately admissible in evidence without more. It is insufficient that the material may become admissible if a witness gives particular evidence and a further procedure is followed. The court followed the reasoning in R v Derby Magistrates’ Court, ex parte B [1996] AC 487, which remained good law and was not distinguishable because of differences in statutory wording, the 2003 changes to evidence law, the identity of the applicant, or privilege.
4. The court rejected the suggested requirement that the material must be evidence against the accused. The observation in R (Bright) v Central Criminal Court [2001] 1 WLR 662 provided no support for that limitation.
5. Disposition. The Crown Court judge had no reasonable grounds for believing that the note was likely to be immediately admissible. The production order was therefore unlawful. As the note had already been produced, it was not quashed. The court granted a declaration establishing the correct approach for future cases.

• Newcastle Crown Court: HHJ Bindloss granted a production order on 4 June 2018 requiring the BBC to produce the journalist’s note.
• High Court (Administrative Court): The Divisional Court declared the production order unlawful because the evidence did not disclose reasonable grounds for believing that the note was likely to be immediately admissible in evidence.