BSkyB and another, R(on the application of) v Chelmsford Crown Court  EWHC 1295 (Admin) – read judgment
The police failed to satisfy the court that their need for footage taken by TV organisations was likely to be of substantial value to criminal investigations and therefore would be a justified interference with the rights of a free press under Article 10 of the Human Rights Convention.
Sky, BBC, ITN etc. succeeded in quashing an order to produce of 100+ hours of video footage to Essex Police of the Dale Farm protesters on the grounds that there were no “reasonable grounds” for believing that the footage of over 100 hours included material likely to be of substantial value to the investigation.
After the Dale Farm evictions and the disorder that ensued, the police sought an order for the recordings taken by the claimant organisations to help identify those who had committed indictable offences when attempting to prevent the eviction. They submitted that it was necessary, not least for the prevention of similar disorder on future occasions, to identify as many as possible of those who committed indictable offences in attempting to frustrate the lawful enforcement procedures. Production orders were duly made by Chelmsford Crown Court, defendant in this action. The claimants applied for judicial review of the production orders made against them, with the police joining the proceedings as an interested party.
The media organisations submitted that it was a speculative exercise and there had been insufficient evidence for the judge to conclude that the recordings were likely to be of substantial value to the police investigations under the Police and Criminal Evidence Act 1984 Sch.1 para.2(a)(iii), and therefore the orders constituted an unjustifiable interference with their right to freedom of expression under Article 10. They contended, in particular, that there had been an increasing number of police applications for wide-ranging production orders in circumstances of this kind:
Reference was made, for example, to student protests in 2010 and the notorious riots which took place in August 2011. There is widespread concern that such applications are being made, impermissibly, on an unfocused and scattergun basis. This case is said to provide an example where the production orders sought did not relate to specific indictable offences, alleged to have been committed at particular times and at particular places, but rather to “fishing” for any evidence there might be of such offences occurring over the many hours of visual recording.
The default position was the claimants’ right to freedom of expression. Therefore the burden was on the police to demonstrate that the degree of interference and the wide scope of the production sought was necessary and proportionate because of the substantial value attaching to the recordings in the context of the investigation. Indeed, both under PACE and the Convention, in seeking material from the press for this purpose
There is a burden to be discharged and disclosure orders against the media, intrusive as they are, can never be granted as a formality.
Whilst there was clearly a real public interest in tracing any of those persons who were involved in public disorder or violence, that had to be set against the level of interference with the claimants’ rights under Article 10 rights.
A “close and penetrating examination” of the facts advanced by way of justification is required (Lord Hope in R v Shayler  UKHL 11). Contrary to this, the judge below, in granting the production orders to the police, had taken a “compendious, not to say formulaic”, approach towards his deliberation on the access conditions. No reasons of substance are given as to why any of this footage, let alone all of it, would be of substantial value to the outstanding police investigations. There was nothing to justify such his conclusion that access should be given to this material:
There was no intense focus upon, or scrutiny of, any evidence of substantial value, because there was none. There was no material to enable the judge to carry out the necessary balancing exercise [of public interest versus the claimants’ Article 10 rights].
Further, the judge had failed to give any sufficient weight to the inhibiting effect of production orders on the press.
The police’s reluctance to reveal what information they had meant that the media organisations were denied a fair opportunity to demonstrate why their recordings were unlikely to be of any assistance. There had to be cogent evidence as to what the footage was likely to reveal, how important such evidence was to carrying out the investigation, and why it was necessary and proportionate to order the intrusion by reference to other potential sources of information. That burden had not been discharged, and accordingly the judge was unable to justify ordering disclosure against the claimants and the production orders were quashed.
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