Reference:  EWHC 2756;  1 Cr App R 16;  EMLR 8;  Crim LR 247
Court: Divisional Court (QBD)
Judge: Leggatt LJ & Picken J
Date of judgment: 22 Oct 2019
Summary: Judicial Review of a Production Order under PACE
Download: Download this judgment
Appearances: Greg Callus (Claimant)
Instructing Solicitors: BBC Litigation Department
The BBC applied to judicially review a production order made on the application of the Northumbria Police Force by Newcastle Crown Court under Sch 1 Para 2 of the Police and Criminal Evidence Act 1984 (“PACE”). The subject of the order was a journalist’s note that the police force had sought for use in the criminal trial of George Ormond, who stood trial on 22 May 2018 charged with 38 charges of sexual assault committed in the 1970s and 1980s when he was a youth football coach.
One of the complainants had conducted an on-air interview with a BBC journalist, in which he discussed the allegations he made against Mr Ormond. The account which the complainant had given on-air differed materially from the account he provided two weeks later in his police interview. Prior to the on-air interview, the BBC Journalist had conducted an off-air mock interview with the complainant, and the note sought to be produced was a typed note of the answers he had provided.
The police made a request to the BBC for disclosure of the note in February 2017, which was denied. A renewed request by way of a draft production order was made over a year later, 10 days before Mr Ormond’s trial, which the BBC opposed. The application for a production order was eventually made after the jury in Mr Ormond’s trial had been sworn, and was heard by the trial judge.
It had been agreed that three of the six access conditions required under Sch 1 Para 2 of PACE were fulfilled. The trial judge held that all six conditions were fulfilled and granted the production order. He rejected the BBC’s contention that there was no power to make a production order because access to the material was not sought “for the purpose of a criminal conviction” under s 9(1) PACE.
The BBC applied for judicial review of the trial judge’s decision.
- Whether the application for the production of the journalist’s note was not “for the purposes of a criminal investigation” under s.9(1) and therefore fell outside of Sch 1 PACE (“Purpose of application”);
- Whether there were reasonable grounds for believing that the journalist’s note was likely to be of substantial value to the investigation (“Substantial value”);
- Whether there were reasonable grounds for believing that the journalist’s note was likely to be relevant evidence (“Relevant evidence”); and
- Whether the trial judge erred in his evaluation of the public interest, when balancing the benefit likely to accrue to the investigation if the material was obtained against the level of interference if a production order was made with the BBC’s Article 10 right (“Public interest balancing test”).
- Purpose of application
The test to be applied in cases where an application has been brought for more than one purpose, was whether the statutory purpose (in this case, the conduct of a criminal investigation) was the dominant purpose of the application: R v Southwark Crown Court Ex p. Bowles  AC 641, applied 
When undertaking a criminal investigation as defined under section 22(1) of the Criminal Procedure and Investigations Act 1996 (“CPIA”), there is a duty to pursue all reasonable lines of enquiry, whether pointing towards or away from a suspect.
The Judges held that in May 2018, when the renewed request was made, this was for the purpose (or at least the dominant purpose) of enabling the CPS to decide whether the note needed to be disclosed in line with the prosecutor’s continuing duty of disclosure under s.3 and 7A CPIA (namely material which had not previously been disclosed which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused) . The fact that this duty arises only once material is in the prosecutor’s possession (or has been inspected) does not mean that no attempt need be made to obtain the material . If the prosecutor and police have reason to believe that a third party possesses material which might reasonably be considered capable of undermining the case for the prosecution or of assisting the defence case, they should not “sit on their hands”; it is incumbent on an investigator to take reasonable steps to obtain access to the material which may include applying to the court under s.8(1) PACE for a search warrant or s.9(1) and Sch 1 for a production order.
In the present case, the dominant purpose of applying for a production order was to pursue a reasonable line of enquiry by attempting to obtain material which might assist the defence case (whilst also having the potential to assist the prosecution). The police force were seeking to obtain access to the journalist’s note for the purposes of a criminal investigation.
Accordingly, the Judges dismissed the first ground of review.
- Substantial value
The trial judge did not err in law by finding that the journalist’s note was likely to be of “substantial value” to the investigation on the grounds that it would either (1) assist the defence case by casting doubt on the complainant’s credibility or reliability or (2) would be consistent with his witness statement and hence would assist the prosecution case by helping to rebut an attack on the veracity of his evidence based on his failure to mention in the broadcast interview matters recounted in his witness statement. A prior consistent statement can still be of substantial value to an investigation by plainly assisting a prosecution case by providing material with which to rebut a suggestion that the complainant’s evidence had been fabricated.
Accordingly, the Judges dismissed the second ground of review.
- Relevant evidence
Under the access condition in Schedule 1 Paragraph 2(a)(iv) PACE, the phrase “is likely to be relevant evidence” should be interpreted as having the same meaning as “relevant evidence” under s.8(4) PACE, namely that “the material is likely to be such that, if produced, it would be immediately admissible in evidence at a trial without more”: R v Derby Magistrates Court ex parte B  AC 487, applied. It is not enough that the material will become admissible if particular events happen at the trial. The trial judge had been wrong to attempt to distinguish Derby Magistrates by drawing a distinction between s.97 of the Magistrates’ Court Act 1980 and the corresponding requirement in s.9(1) and Schedule 1 of PACE.
The words “is likely to be” contemplate an element of contingency or uncertainty, but that is sufficiently explained by the fact that, when a judge is considering an application for a production order, it is often not known that the exact content of any material ordered to be produced will turn out to be. A test of likelihood was therefore appropriate both to the question whether the material will be of substantial value to the investigation and to the question whether it will be “relevant evidence”.
The production order had therefore been unlawful because the evidence placed before the trial judge disclosed no reasonable grounds for believing that the journalist’s note would likely be immediately admissible in evidence at the trial.
- Public interest balancing test
Whereas journalistic material would ordinarily be protected from disclosure to prevent a chilling effect on people speaking freely to the media, the risk was considerably diminished when, as in this case, the individual concerned has (a) chosen to waive anonymity when speaking live on air about his allegations of abuse and (b) given his express written consent to the journalist’s record of what he said off-air being provided to the police.
It was however unnecessary to express a concluded view on this issue considering the findings that the trial judge had erred in law in relation to ground 3.
As the journalist’s note had been produced by the BBC, it would serve no purpose to quash the order for its production. The Judges instead made a declaration that the production order was made unlawfully because the evidence placed before the trial judge disclosed no reasonable grounds for believing that the journalist’s note was likely to be immediately (rather than merely contingently) admissible in evidence at trial.
A landmark decision for the availability of journalistic “special procedure” material under the PACE Production Order mechanism. By holding that R (B) v Derby Magistrates applied to PACE Production Orders as it did to witness summons, and that the House of Lords’ decision could not be distinguished by changes made in the Criminal Justice Act 2003, special procedure material will no longer be available under a PACE Production Order unless it is likely to be “immediately admissible” at trial without more, which is apt to exclude evidence which is merely hearsay, character evidence, prior consistent and inconsistent statements, or material speaking only to witness credibility.