LXP, R (on the application of) v Central Criminal Court

Part 2 of the Criminal Justice and Police Act 2001 does not displace the protections afforded to journalistic material by PACE, article 10 of the ECHR and the common law. A court giving directions for examination or retention of seized material must first determine whether relevant material is journalistic and, if so, conduct the required balancing exercise. Material unlawfully obtained may still be journalistic material. Its unlawful acquisition is a factor in the article 10 assessment, not an automatic exclusion from protection. Protective arrangements must prevent investigators accessing potentially journalistic material before that assessment.

The claimant sought judicial review of a ruling by the Recorder of London made after devices and documents were seized under warrants issued pursuant to section 9(1) of the Official Secrets Act 1911. The material might include journalistic material and privileged material. The Metropolitan Police applied for directions under section 59 of the Criminal Justice and Police Act 2001 permitting examination under safeguards. The Recorder directed that the devices be downloaded and searched, treating stolen material as distinct from true journalistic material and declining to consider the further statutory route under sections 59(6) and (7).

The issues were whether the statutory scheme required consideration of article 10 and section 10 of the Contempt of Court Act 1981, whether the directions were lawful and rational, and what relief should follow.

1. Claim allowed and ruling quashed. The Recorder erred in law by drawing a generic distinction between stolen material and journalistic material. Section 13 of PACE defines journalistic material by its purpose and possession. The adjective “true” could not properly be inserted into that statutory definition.
2. Material unlawfully disseminated, or material evidencing such dissemination, may nevertheless be journalistic material. Unlawful acquisition may weigh heavily in the article 10 balance, but it is not determinative. The court must balance protection of journalistic sources and freedom of the press, together with the privilege against self-incrimination, against the other relevant public interests.
3. Sections 56 and 59(5) of the Criminal Justice and Police Act 2001 must be read with sections 59(6) and (7) and Schedule 1 to PACE. The statutory scheme does not supersede article 10 and common-law protections. Judicial monitoring is required before potentially journalistic material is inspected.
4. The Recorder’s directions were inadequate because they allowed the MPS to search for unlawfully obtained material before the court had determined whether that material was journalistic and, if so, whether inspection should be permitted. Independent counsel could appropriately conduct the initial examination, but the role had to protect the material pending judicial determination.
5. The High Court declined to withhold relief under section 31(2A) of the Senior Courts Act 1981. It substituted directions requiring secure downloading without MPS access, examination by independent counsel, service of a schedule on the claimant, and reconsideration by the Recorder of the article 10 balance and the status of any stolen material.

This was a judicial review of the ruling of HHJ Mark Lucraft KC, Recorder of London, made on 10 March 2023. The High Court granted relief, quashed the ruling and substituted directions for independent-counsel examination and reconsideration by the Recorder.