The Supreme Court refuses to allow the use of “secret evidence” in inter partes production order applications

In a recent ruling the Supreme Court has held that the police cannot rely upon secret evidence when seeking production orders for special procedure and excluded material under Schedule 1 of the Police and Criminal Evidence Act 1984 (“PACE”) (R (on the application of British Sky Broadcasting Limited) v The Commissioner of Police of the Metropolis).

In 2011 two officers serving in the armed forces were arrested by police on suspicion of offences under the Official Secrets Act 1989. The investigation concerned the suspected leaking of secret information from meetings of the Cabinet Security Committee (known as COBRA) by the two officers to B Sky B’s security editor. Following the arrest of the two officers, the police asked B Sky B for disclosure of various documents including copies of all emails between the officers and the security editor since October 2010. After discussions between the parties did not resolve the request, the police made an application in April 2011 for a production order.

PACE provides the court with the power, under section 8, to issue search warrants on an ex parte basis. However, section 9 provides that where the material is considered to be “special procedure” or “excluded” material, which includes journalistic material, the police must make an application under Schedule 1 of PACE. Applications made in this way must be made inter partes, unlike applications for a section 8 PACE search warrant.

In B Sky B the skeleton argument filed on behalf of the police indicated that they wished to put before the court evidence in the absence of B Sky B. When the application was made in the Central Criminal Court, the Judge allowed the police to produce such evidence in an ex parte hearing from which B Sky B were excluded. This was despite the fact that B Sky B had offered undertakings to restrict those who would see the evidence to a nominated member of B Sky B’s management and its lawyers. This was rejected and the Judge heard the evidence in secret and allowed the application, granting the Production Order against B Sky B which included the special procedure material.

The Administrative Court quashed the order and ruled that it was unlawful. The court held that the fundamental principle applied that B Sky B should have access to the evidence on which the case against it was based and therefore have an opportunity to comment on it and, where appropriate, challenge it. It relied upon the statutory wording and the Supreme Court’s decision in Al Rawi v The Security Service [2011]. In Al Rawi the Supreme Court affirmed the principle that the use of a closed material procedure was so alien to the right of a party to know the case advanced by the opposing party, and to have a fair opportunity to respond to it, that it can only be permissible by an Act of Parliament.

The Metropolitan Police appealed to the Supreme Court, arguing that they were entitled to rely on secret evidence, not disclosed to the media, when applying for production orders. The police contended that it was not necessary for B Sky B to know the full details of the evidence which caused the police to suspect the officers of having committed criminal offences as, unlike an ordinary trial, there was no accusation or case being made against B Sky B. It was further argued that disclosure of full details of the police evidence in a case of this nature could involve the risk of damage to national security. The Supreme Court unanimously rejected the appeal. In their judgment, the Supreme Court stated that “compulsory disclosure of journalistic material is a highly sensitive and potentially difficult area” and that Parliament has recognised the competing public interest in requiring that applications for this type of material are made inter-partes. The Supreme Court also stated that it is inherent in the concept of an inter-partes hearing that “each should know what material the other is asking the court to take into account in making its decision and should have a fair opportunity to respond to it.” The judgment will not, however, prevent the court hearing a public interest immunity application in relation to a production order ex-parte.

The recent judgment could make it almost impossible for the police to use intelligence based evidence when making future applications at inter partes hearings, as it will not be possible for them to keep such evidence secret from the opposing party. The judgment also reinforces the fact that where parties do contest production order applications for special procedure material they should be made fully aware of the evidence on which the application is based, even if no accusation or case is being made against them.