AddThis SmartLayers

Anatomy of a production order against the press

The Metropolitan police’s aborted bid for a production order against the Guardian newspaper this month saw everyone scrambling to check the law.

When detectives want to get their hands on a journalist’s notes or other such materials, they have to follow a special procedure which includes important safeguards for media freedoms.

The rules are set out in the Police and Criminal Evidence Act 1984 (PACE).  The body of law in this area is rather dry and intricate, but it is important and well worth dissecting.

The Act says police seeking access to “excluded material”, or to “special procedure material”, must make an application to a circuit judge, giving prior notice to the relevant journalist or media organisation.

“Excluded material” is defined to include journalistic material which consists of “documents” or other “records” acquired or created for the purposes of journalism and which a person holds in confidence – for example, subject to the obligation under clause 14 of the PCC’s Code to protect confidential sources of information.

In this context, “special procedure material” means material which has been acquired or created for the purposes of journalism and which does not fall within the definition of  “excluded material”.

If police want to seize “excluded material”, they must satisfy a judge that there are reasonable grounds for believing that such material exists at specified premises; that a search warrant could lawfully have been authorised under another statute (e.g. under the Theft Act); and that the issue of such a warrant would have been appropriate.

For access to “special procedure material”, the police must satisfy either the above tests or alternatively the following conditions: that there are reasonable grounds for believing an indictable offence has been committed; that there is special procedure material on specified premises; that the material is likely to be of substantial value to the relevant police investigation; that it is likely to be relevant evidence; that other methods of obtaining it have been tried without success, or have not been tried because it appeared they were bound to fail; and that it is in the public interest, having regard to the benefit likely to accrue to the investigation and to the circumstances in which the person holds the material, that the material should be produced or that access be given to it.

If satisfied that the tests are met, a judge may issue a production order giving the journalist or media organisation seven days in which to comply.

Failure to comply may be dealt with as a contempt of the Crown Court.  Costs of the court application are “in the discretion of the judge”.

Importantly, besides these PACE tests, the judge also has to take into consideration the media’s right to freedom of expression under Article 10 of the European Convention on Human Rights and the vital principle of protection of journalists’ sources.

The European Court of Human Rights has repeatedly emphasised the need, in a democratic society, to protect journalists’ sources – most recently in the Sanoma Uitgevers case (see HTFP law column 20.09.10).

The judge also has to consider S.10 of the Contempt of Court Act 1981, which provides that no court may require a person to disclose – nor is any person guilty of contempt for refusing to disclose – the source of information contained in a publication unless it be established that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.

So, it was into this nuanced and ‘political’ area of law that the Met police clumsily waded with their misconceived application against the Guardian and its journalist Amelia Hill, trying to discover the source of leaked stories about the phone-hacking criminal investigation.

The production orders recently issued against broadcasters for the disclosure of TV footage of the riots that blighted English cities in August illustrate that courts are prepared to grant such orders where satisfied they are appropriate.

But any attempt to uncover a journalist’s confidential source, even in connection with the alleged commission of a criminal offence, is another kettle of fish entirely.

In view of all the legal safeguards associated with such material, the Met’s application – and in particular their overbearing assertion that they were seeking a production order in connection with an investigation into a possible breach of the Official Secrets Act 1989 – was roundly condemned as an unjustified attack on public-interest investigative journalism, and rightly withdrawn before the proposed hearing.