Gavin Millar QC

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• Gavin Millar QC
• doughty street chambers
• Heather Rogers QC
• matrix chambers

www.doughtystreet.co.uk
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PRODUCTION ORDERS LAW AND PRACTICE

• POLICE AND CRIMINAL EVIDENCE ACT 1984
• (PACE)
• Section 9(1) police may obtain access to
  excluded or special procedure material for the
  purposes of a criminal investigation by
  application under PACE Schedule .
• 700 applications each year (most uncontested)

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PRODUCTION ORDERS PACE

• journalistic material (section 13)
• material acquired or created for the purposes
  of journalism in the possession of the person who
  so acquired or created it

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PRODUCTION ORDERS PACE

• excluded material (section 11)
• journalistic material held subject to an express
  or implied undertaking to hold it in confidence
  and has been continuously so held since it was
  first acquired for journalistic purposes.

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PRODUCTION ORDERS PACE

• special procedure material (s14)
• journalistic material, other than excluded
  material

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PRODUCTION ORDERS PACE

• So special procedure material
• material acquired or created for the purposes of
  journalism in the possession of a person who so
  acquired or created it but
• not held subject to an express / implied
  undertaking to hold it in confidence or
• not so held continuously since first acquired for
  journalistic purposes.

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PRODUCTION ORDERS PACE

• Under Sch 1
• Judge may make order for production of or
  access to journalistic material if satisfied one
  of two sets of access conditions is met.

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PRODUCTION ORDERS PACE

• First set of access conditions apply if
• reasonable grounds for believing that the
  material in question consists of or includes
  special procedure material but does not also
  include excluded material

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PRODUCTION ORDERS PACE

• First set of conditions are fulfilled if
• reasonable grounds for believing
• indictable offence committed
• material is likely to be of substantial value
• material is likely to be relevant evidence
• other methods of obtaining material tried without
  success or not tried because bound to fail
• in the public interest that the material should
  be produced or access to it should be given
  having regard to
• the benefit likely to accrue to investigation if
  material is obtained and
• the circumstances under which the person in
  possession of the material holds it

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PRODUCTION ORDERS PACE

• Second set of access conditions apply if
• reasonable grounds for believing that there is
  material which consists of or includes excluded
  material on the premises specified in the
  application
• a search of the premises could have been
  authorised by the issue of a warrant to a
  constable under a pre-existing enactment
• the issue of a search warrant would have been
  appropriate

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PRODUCTION ORDERS PACE

• discretion
• even if access conditions met, the court
  retains a discretion as to whether or not to make
  the order sought bearing in mind the wider public
  interest considerations

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PRODUCTION ORDERS PACE

• PACE procedure
• Police must make application for production
  order/ warrant inter partes (on notice) Sch 1,
  at 7
• Application usually made by way of information
  sworn before Crown Court judge
• Judge makes production order/warrant
• Failure to comply contempt/warrant
• Parties can apply to discharge/vary, if
  circumstances change
• Can be application for judicial review

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PRODUCTION ORDERS TERRORISM ACT

• terrorism means the use or threat of action
  where
• (a)     the action
• (i) involves serious violence against a
  person,
• (ii) involves serious damage to property,
• (iii) endangers a person's life (other than
  the person committing the action),
• (iv) creates serious risk to the
  health/safety of the public/section of the
  public, or
• (v) is designed seriously to interfere
  with/to disrupt an electronic system.
• (b)     the use or threat is designed to
  influence the government (or international
  governmental organisation) or to intimidate the
  public/section of the public, and
• (c)     the use or threat is made for the purpose
  of advancing a political, religious or
  ideological cause

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PRODUCTION ORDERS TERRORISM ACT

• terrorist investigation (section 32) -
  investigation of
• the commission, preparation or instigation of
  acts of terrorism
• an act which appears to have been done for the
  purposes of terrorism
• the resources of a proscribed organisation
• the possibility of making an order proscribing an
  organisation (section 3(3))
• commission, preparation or instigation of an
  offence under the Terrorism Act 2000 (or some
  offences under the Terrorism Act 2006)

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PRODUCTION ORDERS TERRORISM ACT 2000

• Schedule 5 at 5(1) police officer may apply
  to court for an order for the purposes of a
  terrorist investigation
• Schedule 5 at 5(2) the application shall
  relate to particular material - or material of a
  particular description - which consists
  of/includes excluded material or special
  procedure material (as defined in PACE)
• material subject to legal privilege is exempt (as
  under PACE)
• 100 or so each year (under predecessor
  legislation) mostly unopposed

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PRODUCTION ORDERS TERRORISM ACT 2000

• Two access conditions apply Schedule 5
• First access condition 6(2)
• The order for production is sought for the
  purposes of a terrorist investigation and
• There are reasonable grounds for believing that
  the material is likely to be of substantial
  value, whether by itself or together with other
  material, to a terrorist investigation

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PRODUCTION ORDERS TERRORISM ACT 2000

• Second access condition 6(3)
• That there are reasonable grounds for believing
  that it is in the public interest that the
  material should be produced or that access to it
  should be given having regard-
• To the benefit likely to accrue to the terrorist
  investigation if the material is obtained, and
• To the circumstances under which the person
  concerned has any of the material in his
  possession, custody or power

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PRODUCTION ORDERS TERRORISM ACT 2000

• As under PACE, if the access conditions are
  fulfilled, the court has a discretion whether/not
  to make an order.

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PRODUCTION ORDERS LAW AND PRACTICE

• Resisting/challenging production orders
• PACE applications are on notice (inter
  partes).
• TA usually application to vary/discharge
  following service
• Ex parte Salinger guidelines regarding
  information to be given to respondent
• Is the respondent correct?
• Are the terms of the order sufficiently
  certain/too wide?
• Have the access conditions been met? (burden on
  police)
• Exercise of the discretion Convention compliant?
  Arts 2, 3, 8, 10
• PACE cases section 10 Contempt of Court Act 1981
  (necessity test for sources)
• Art 6 and ex parte hearings special advocate?

www.doughtystreet.co.uk
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PRODUCTION ORDERS LAW AND PRACTICE

• Resisting/challenging production orders
• Privilege against self-incrimination?
  (Pre-existing documents width of TA offences
  relating to information sections 38B, 19).
• Five factors (Malik)
• true benefit to investigation of material
• importance of privilege itself convincing
  justification required
• gravity of offence with which person required to
  surrender material might be charged
• risk of prosecution (immunity given?)
• bear in mind s78 PACE power to exclude.

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TERRORISM ACT 2000 section 38B offence

• If a person has information they know or believe
  might be of material assistance
• (a)     in preventing the commission by
  another person of an act of terrorism, or
• (b)     in securing the apprehension,
  prosecution or conviction of another person, in
  the United Kingdom, for an offence involving the
  commission, preparation or instigation of an act
  of terrorism.
• They commit an offence if they do not disclose
  that information as soon as reasonably
  practicable to a police officer.
• They have a defence if they prove they had a
  reasonable excuse for not making the disclosure.

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TERRORISM ACT 2000 section 19 offence

• If a person
• (a)     believes or suspects that another
  person has committed an offence under any of
  sections 15 to 18 that is, various offences
  relating to funding of terrorism, and
• (b)     bases their belief or suspicion on
  information which comes to his attention in the
  course of a trade, profession, business or
  employment.
• That person commits an offence if they do not
  disclose to a police officer as soon as is
  reasonably practicable (a) their belief or
  suspicion and (b) the information on which it
  is based.
• They have a defence if they prove that they had a
  reasonable excuse for not making the disclosure.

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PRODUCTION ORDERS other statutory powers
include..

• Proceeds of Crime Act 2002, sections 343-345
• Extradition Act 2003, sections 157-160
• Crime (International Co-operation) Act 2003,
  section 22

www.doughtystreet.co.uk
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PRODUCTION ORDERS further reading

• R v Middlesex Guildhall Crown Court ex parte
  Salinger 1993 QB 564
• Code B Code of Practice for the Searching of
  Premises by Police Officers and the Seizure of
  Property found by Police Officers on Persons or
  Premises (http//police.homeoffice.gov.uk)
• R v Central Criminal Court, ex parte Bright
  2001 1 WLR 662
• R (on the application of Malik) v Manchester
  Crown Court and another 2008 EWHC 1362 (Admin)
  (19 June 2008)
• Judgments available on www.bailii.org

www.doughtystreet.co.uk
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PRODUCTION ORDERS further reading

• European Court of Human Rights
• www.echr.coe.int
• Decisions on journalists sources include
• Goodwin v UK
• (27 March 1996)
• Voskuil v Netherlands
• (27 November 2007)