(1) Subject to the following provisions of this section, in this Act “excluded material” means—
(a)personal records which a person has acquired or created in the course of any trade, business, profession or other occupation or for the purposes of any paid or unpaid office and which he holds in confidence;
(b)human tissue or tissue fluid which has been taken for the purposes of diagnosis or medical treatment and which a person holds in confidence;
(c)journalistic material which a person holds in confidence and which consists—
(i)of documents; or
(ii)of records other than documents.
(2)A person holds material other than journalistic material in confidence for the purposes of this section if he holds it subject—
(a)to an express or implied undertaking to hold it in confidence; or
(b)to a restriction on disclosure or an obligation of secrecy contained in any enactment, including an enactment contained in an Act passed after this Act.
(3)A person holds journalistic material in confidence for the purposes of this section if—
(a)he holds it subject to such an undertaking, restriction or obligation; and
(b)it has been continuously held (by one or more persons) subject to such an undertaking, restriction or obligation since it was first acquired or created for the purposes of journalism.
Cases considering section 11 18
[2016] EWCA Civ 6 · 19 January 2016Defines
The Court used section 11 to identify excluded material for the comparison between Schedule 7 and the protections under PACE. (see para [86])
The Court treated confidential journalistic material as included within excluded material. (see para [86])
[2023] EWHC 2824 (Admin) · 10 November 2023Defines
Interprets the provision as making journalistic material excluded material where the specified confidentiality conditions are met and the material has been continuously held under that obligation since acquisition or creation (see para [34]).
[2018] EWHC 1156 (Admin) · 15 May 2018Limits
Section 11 supplied the statutory concept of excluded material used in the Code of Practice and the discussion of confidential material. The court did not decide its general scope. (see paras [33]-[36])
Section 11(1) introduced the meaning of excluded material, including specified confidential records and journalistic material. It was considered as part of the comparison with Schedule 7 safeguards. (see paras [34]-[36])
Section 11(1)(a) included confidential personal records acquired or created in an occupation or office within excluded material. The court noted the provision but rejected the assumed equivalence with the journalistic-material issue in Miranda. (see paras [34]; [38]-[39])
Section 11(1)(c) included confidential journalistic material within excluded material. The court treated this as part of the specific Article 10 and journalistic-material context, not as establishing identical protection for all confidential material. (see paras [34]; [36]; [39])
Section 11(1)(c)(i) identified documents as one form of confidential journalistic material. It was used only to reproduce the statutory comparison with Schedule 7. (see para [34])
Section 11(1)(c)(ii) identified non-documentary records as one form of confidential journalistic material. It was used only to reproduce the statutory comparison with Schedule 7. (see para [34])
Section 11(2)(a) described confidential holding by express or implied undertaking. It was reproduced as part of the statutory comparison but was not independently construed. (see para [34])
Section 11(2)(b) described confidentiality arising from an enactment. It was reproduced as part of the statutory comparison but was not independently construed. (see para [34])
Section 11(3)(a) concerned the undertaking, restriction or obligation applicable to journalistic material. It was reproduced as part of the statutory comparison but was not independently construed. (see para [34])
Section 11(3)(b) required continuous confidential holding of journalistic material since acquisition or creation for journalism. It was reproduced as part of the statutory comparison but was not independently construed. (see para [34])
1 more judgment, and what each says about section 11, are in the
case-law panel in the full Act.