WFZ v British Broadcasting Corporation

The Claimant (“C”) has a high public profile and is under active criminal investigation in relation to multiple allegations of serious sexual offences. In June 2023, Collins Rice J granted an injunction against the BBC restraining the publication of a proposed BBC report in any form which identified C or was likely to identify him as the subject of active criminal proceedings.

The BBC journalist who investigated the story gave a witness statement for the purpose of resisting C’s injunction application (“the Witness Statement”). The Witness Statement was subject to access protection on the court file and to reporting restrictions, and the June 2023 hearing was held in private.

C applied for permission under CPR 32.12(2)(b) to refer to the Witness Statement in representations to the Metropolitan Police and/or Crown Prosecution Service. C argued that the information in the Witness Statement was directly relevant to C’s defence, the Police investigation and the CPS’ charging decision. Before C’s application was heard, a police detective working on the criminal investigation indicated that he would be seeking a production order against the BBC under Schedule 1 of the Police and Criminal Evidence Act 1984 (“PACE”).

 D argued that C was effectively trying to deploy CPR 32.12(2)(b) to put into the hands of the Police/CPS journalistic material to which they have no right otherwise than on the terms set out in the PACE regime, and accordingly that the Court should apply the PACE test to this application.

(1) Was the witness statement “material acquired or created for the purposes of journalism” pursuant to PACE section 13?

(2) What test should the Court apply to C’s application?

(3) Should C be permitted to refer to the Witness Statement in submissions to the Police and/or Crown Prosecution Service?

(1) There were a number of possible answers to C’s contention that the Witness Statement is not journalistic material: [32].

• First, the BBC’s purpose of publishing its exposé report was undoubtedly a journalistic purpose, and the BBC’s opposition to the injunction application was in furtherance of that journalistic purpose: [33].
• Second, the content of the Witness Statement included material acquired and created for the purposes of journalism, for example an explanation of the journalist’s investigative methods, cultivation of sources, and the journalist’s editorial evaluation of the public interest of the report: [34].
• Third, the criminal law enforcement agencies themselves appeared to have accepted that the Witness Statement is or contains journalistic material: [35].

Whether or not the Witness Statement is ‘journalistic material’ for the purposes of PACE (see issue 2 below), it contains material “which it is at the very least right and proper for a civil court to consider as engaging the interests of journalism and at least potentially the legal protections for journalism”: [37]. C’s application was therefore a request for the exercise of legal compulsion over unpublished journalism: [40].

(2) The PACE test should not be applied: [52].

The Judge had no proper basis for judging whether the Witness Statement was “likely to be of substantial value to the investigation” or “relevant evidence” in criminal proceedings (that is, elements of the PACE test). The police/CPS have their own case to make on the application of PACE, and on the other hand the Court could not simply accept the opinion evidence of C’s solicitor that disclosure of the Witness Statement was necessary for their purposes.

(3) Collins Rice J accepted in principle C’s entitlement to participate as fully as possible in making pre-charge representations that might assist him, and that Article 6 of the ECHR was at least in principle engaged at this stage: [46].

However, C had not provided a good reason for making an order placing the Witness Statement into the hands of the criminal law enforcement authorities “now”: [55]. It was therefore unnecessary to reach a final view about the correct approach to determining the full merits of the application or the precise test to be applied: at [56]. The agencies were intending to apply for a production order on a timetable of their own choosing, and there was no good reason to interfere or intervene in this process: [56]-[57]. It was in the interests of justice for the criminal processes to take their course without interference: [59].

C’s application was therefore premature. C’s opportunity to seek to make representations on the basis of the Witness Statement (either with the consent of the BBC or by application under CPR 32.12) would properly come after the criminal procedure had taken its course: [58].

A useful decision on the intersection between CPR 32.12 and the PACE regime in the context of parallel civil and criminal proceedings. The judgment contains helpful guidance on when a witness statement can constitute journalistic material (or at least engage the interests of journalism).

Link to judgment