Using PACE 1984 to obtain disclosure of journalistic material

NOTE: It has been announced that the Met. Police has decided, for the time being, NOT to seek The Guardian's sources of information.  

See the Met. Police News Release.  This decision was taken after consultation with the CPS and other lawyers.  The application would have been under PACE 1984. 

See The Guardian's article - published late on the evening of 20th September - "Met Police drop action against The Guardian."

....

Origanal Post 29th September

The Metropolitan Police are seeking the identity of The Guardian news paper's sources in relation to telephone hacking - please see Law and Lawyers "Is the Official Secrets Act about to be used to gag journalism" - (below).

It has now been indicated that the Police and Criminal Evidence Act 1984 (PACE) section 9 may be invoked.  This section is in Part II of PACE which is headed "Powers of Entry, Search and Seizure."  Part II contains sections 8 to 23.

Section 8 is a power granted to Justices of the Peace (JP) to authorise a constable to enter and search premises.  The authority may only be granted if the JP is satisfied that there are reasonable grounds to believe that a number of conditions apply including reasonable grounds to believe that there is material on premises which is likely to be of substantial value to the investigation of an indictable offence.  However, this power may not be used to search for items subject to legal privilege or "excluded material" or "special procedure material."  For those three categories, Parliament considered it necessary to have the authority of a Judge as opposed to a JP.

PACE s.9 therefore states that a constable may obtain access to
excluded material or special procedure material for the purposes of a criminal investigation by making an application under Schedule 1 of PACE.

Journalistic material is defined in PACE s.13 - it is basically "material acquired or created for the purposes of journalism."

"Excluded material"  is defined in PACE s.11 -and includes "journalistic material which a person holds in confidence and which consists - (i) of documents; or (ii) of records other than documents" - see s.11 (1)(c).

"Special procedure material" is defined in PACE s.14 and includes "journalistic material, other than excluded material" - see s.14(1)(b).

Offences under the Official Secrets Acts are indictable - (that is, triable in the Crown Court).  If the Police are investigating such offences and wish to obtain journalistic material they will therefore have to apply to a court as required by PACE s.9 and Schedule 1.

PACE 1984 Schedule 1 - Production Orders under para. 4

Schedule 1 is entitled "Special Procedure."    Paragraph 1 of the Schedule enables a Judge to make an order under paragraph 4 of the Schedule if he is satisfied that one or other of the sets of access conditions are met.  The "access conditions" are set out in paragraphs 2 and 3.  So, let us assume that the Judge agrees that the access conditions are met then he may - under paragraph 4 - order

" .... that the person who appears to the judge to be in possession of the material to which the application relates shall -

(a) produce it to a constable for him to take away; or

(b) give a constable access to it,

not later than the end of the period of seven days from the date of the order or the end of such longer period as the order may specify."

A very important requirement is that an application for such production must be heard inter partes, so that each side has the opportunity to be present and to make representations to the judge - (see Schedule 1 paras. 7 to 11).  This procedure is a far cry from the Police going round to the local Magistrates' Court to get a warrant though, interestingly, the term "Judge" is defined to be either a Circuit Judge or a District Judge (Magistrates' Courts).  The use of District Judges (Magistrates' Courts) for PACE section 9 applications came about from 1st April 2005 when the Courts Act 2003 amended PACE Schedule1.

Note:  There are additional paragraphs in Schedule 1 which enable the Judge to issue a search warrant and therefore go further than ordering production. 

Case Law:   R v Central Criminal Court, The Guardian, The Observer and Martin Bright [2000] EWHC 560 (QB)