BBC v Independent Office for Police Conduct

Reference: [2019] UKFTT 2018_0163 (GRC)

Court: First-Tier Tribunal (General Regulatory Chamber)

Judge: Judge Alison McKenna (CP); Dr Henry Fitzhugh; Jean Nelson

Date of judgment: 21 Jan 2019

Summary: Information Notice Appeal – Investigatory Powers – Police Reform Act 2002 – Article 10

Download: Download this judgment

Appearances: Greg Callus (Appellant) 

Instructing Solicitors: BBC Litigation Department for the Appellant.

Facts

The Independent Office for Police Conduct (“IOPC”) served the BBC with an Information Notice concerning the documentary “The Met: Policing London”. The documentary included two filmed interviews with a police officer. A complaint had been made about the officer’s broadcast comments and the IOPC was investigating the complaint.

The BBC had provided the IOPC with the broadcast footage, but refused to provide the unused footage. The IOPC served an Information Notice using its powers under the Police Reform Act 2002 for the unused footage (“the Notice”). The BBC appealed the Notice.

Issue

1. Was the information requested in the Notice “reasonably required” within the meaning of paragraph 19ZA(1) of schedule 3 to the Police Reform Act 2002?

2. Was the Notice unlawful in that the nature and scope of the request represented a breach of the BBC’s Article 10 rights?

Held

1. The Notice required the production of information which was not “reasonably required” and should be quashed.

The concept of “reasonably required” in paragraph 19ZA(1) is a context-specific test. It permits the IOPC to serve a notice lawfully only in relation to information which it reasonably anticipates is relevant to and would advance the particular investigation to which it relates. The complaint that the IOPC was investigating in this case was based on the broadcast documentary footage. The scope of the material required by the Notice was not even limited to the part of the documentary to which the complaint related.

2. The Notice was not issued “in accordance with the law”.

The Notice was not “in accordance with the law” in that it represented a disproportionate interference with the BBC’s Article 10 rights. The IOPC was obliged by s.3 of the Human Rights Act 1998 to conduct a balancing exercise whereby it considered whether the interference with the BBC’s Article 10 rights which the Notice involved was proportionate to the legitimate aim of the progression of the investigation. The IOPC failed to give any or appropriate consideration to this.

Comment

This decision highlights the importance of carefully considering the drafting of an Information Notice and considering the potential infringements of Article 10 rights.

In relation to the second ground of appeal, the Tribunal found that paragraph 19ZA of the Police Reform Act 2002 was lawful, despite not providing explicit protection at that stage for journalistic material.  The Tribunal held that Article 10 rights of journalistic organisations require particular consideration in the context of information notices but that there is no absolute requirement for particular procedural safeguards. Sufficient safeguards are implicitly included in providing a right of appeal.