March 12, 2014
Supreme Court rules on production order evidence
Evidence must be given to journalists
The Supreme Court today handed down judgment in R (on the application of British Sky Broadcasting Limited) v The Commissioner of Police of the Metropolis  UKSC 17. The case related to a production order obtained by the police against BSkyB in relation to potential evidence of an alleged breach of the Official Secrets Act by two officers in the armed forces.
The police obtained the production order through the procedure under PACE 1984 based on evidence, some of which was not disclosed to BSkyB and which was heard by the court without BSkyB being present. BSkyB appealed, arguing that PACE required a production order hearing for disclosure of journalistic material to be inter partes, and relying on the decision of the Supreme Court in Al Rawi v The Security Service  UKSC 34,  1 AC 531.
The Supreme Court held that evidence presented in support of a production order must be provided to the journalist/organisation who is the respondent to the application. Whilst such a hearing is not a trial, and the court stated that generally the decision in Al Rawi should not be applicable to an application by a party to litigation for disclosure of evidence from a non-party, the situation where a production order is sought for journalistic material is different. Such a hearing is likely to involve a the journalist’s substantive rights, and Parliament has set up a system for making such decisions under PACE. An inherent part of the inter partes hearing required by the Act is that each party should know the material the other is seeking to rely on, and have an opportunity to respond to it.
Read the full case report on this decision here.
The Judgment and Supreme Court Press Release can be found here.