WFZ v The BBC

Permission to use a witness statement for a purpose other than the proceedings in which it was served is discretionary under CPR 32.12. The applicant must show a good reason for departing from the default restriction. Where the proposed use would place unpublished journalistic material in the hands of criminal law enforcement agencies, the court must have regard to the interests of journalism and to any statutory procedure governing compulsory disclosure. A civil application should not be used prematurely to circumvent or pre-empt a prospective production-order process under the Police and Criminal Evidence Act 1984. The court may refuse permission where the criminal authorities intend to pursue that process and there is no evidential basis for concluding that delay will cause unfairness or prejudice.

The claimant was subject to active criminal investigation and had obtained an interim injunction restraining publication of a BBC report identifying him as the subject of criminal proceedings. The BBC had provided a witness statement for the earlier interlocutory proceedings. The claimant applied under CPR 32.12(2)(b) for permission to use that statement in representations to the police and Crown Prosecution Service before a charging decision.

The BBC objected, maintaining that the statement contained unpublished journalistic material. The police and CPS indicated that they intended to seek a production order under the Police and Criminal Evidence Act 1984. The central issue was whether the High Court should permit the proposed collateral use before that criminal-law process had taken place.

1. The application was refused. The claimant had not shown a good reason for permitting use of the witness statement outside the civil proceedings at that stage.
2. CPR 32.12(2)(b) confers a discretionary power. The proposed use had to be identified with clarity and precision. In substance, the claimant sought both to place the statement in the hands of the police and CPS and to rely on it in pre-charge representations.
3. The statement contained material engaging the interests and protections of journalism. That was so even though it had been prepared for civil litigation, because it described journalistic newsgathering, relationships with sources and editorial evaluation. The BBC’s refusal to provide it voluntarily was therefore a relevant consideration.
4. The PACE production-order test was not the test applicable to the CPR 32.12 application. It could properly be assessed only on an application made under the PACE regime, when the criminal court would have the necessary evidence about the investigation and the material’s likely value and relevance.
5. Using CPR 32.12 to secure the statement before the police and CPS pursued their stated production-order route would be premature and a forum and process error. The court had no proper basis to assume that the criminal authorities would act unfairly or that the claimant would suffer present prejudice.
6. If the statement were later obtained by the police, or if a production-order application were refused, the claimant might then have a proper basis for a further CPR 32.12 application. The present application was not determined on the final merits of the underlying issue.

The judgment records an earlier interlocutory injunction in the same proceedings, made in June 2023 and described in WFZ v The British Broadcasting Corporation [2023] EWHC 1618 (KB). The present decision concerned the claimant’s subsequent application for permission to use material from those proceedings.