Police denied TV footage of Dale Farm evictions

24 May 2012 by

BSkyB and another, R(on the application of) v Chelmsford Crown Court [2012] 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.

Background facts

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 judgment

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  [2002] 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.

Related posts:

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.


Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Al Qaeda animal rights anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus costs Court of Protection crime Cybersecurity Damages data protection death penalty defamation deportation deprivation of liberty Detention disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza genetics Germany Google Grenfell Health HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Japan Judaism judicial review jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage mental capacity Mental Health military Ministry of Justice modern slavery music Muslim nationality national security NHS Northern Ireland nuclear challenges Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence Sikhism Smoking social media South Africa Spain special advocates Sports Standing statelessness stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wind farms WomenInLaw YearInReview Zimbabwe
%d bloggers like this: