APPENDICES
protection. In practice, therefore, the police mostly rely on the specific provisions in PACE in order to obtain journalistic material, although the statutory powers of search and seizure are modified in relation to material held by journalists in circumstances where the information sought falls within the definition of "excluded material" or "special procedure material".
¶6.4 Journalistic material for the purposes of PACE is defined as material acquired or created for
the purposes of journalism, but only if it is in the possession of a person who acquired it or created it for that purpose, and a person will be deemed to have acquired it for that purpose if it was given to them with the intention that it be used for that purpose.530 The purposes of journalism are not defined in the Act, although the Supreme Court has recently considered the phrase "purpose of journalism" in the context of the Freedom of Information Act in Sugar v British Broadcasting Corporation and the majority held that the phrase should be narrowly construed to mean where an immediate object of holding the information is to use it for the purpose of journalism.531 This requires a direct link between the holding of the information and achievement of its journalistic purposes. The wider 'dominant purpose' test was rejected.532
¶6.5 Excluded material for the purpose of s11(1) of PACE 1984 includes journalistic material
consisting of document or records, if it is held in confidence. The paradigm example of excluded material is where a source gives information to a journalist on condition that his identity is not disclosed in any publication of the information. Excluded material generally does not include film taken by broadcasting crews or photographs, unless obtained in circumstances giving rise to a duty of confidence.
¶6.6 Journalistic material other than that falling within the definition of excluded material is
defined as special procedure material for the purposes of s14 of PACE. Special procedure material is excluded from a warrant to search or enter premises issued by a justice of the peace, s8(1) PACE.
¶6.7 Section 9(1) of PACE enables access to be obtained to "special procedure material" and
"excluded material" for the purposes of a criminal investigation, provided that the conditions set out in Schedule 1 of the Act are met.
¶6.8 Schedule 1 of PACE permits a constable to apply to a Circuit Judge for a Production Order, or in some circumstances a search warrant, where particular access conditions are met.
¶6.9 The first set of access conditions applies to applications for special procedure material and only permit a warrant to be granted where:533
1951(a) there are reasonable grounds for believing an indictable offence has been committed; (b) material consisting of or including special procedure material (but not excluded material) is held at the premises specified in the application or controlled by the person named in the application; (c) that the material is likely to be of substantial value, whether by itself or together with other material, to the investigation in connection with which the application is made;
¶Appendix 4 | Legal Materials
(d) the material is likely to be relevant evidence; (e) other methods of obtaining the special procedure material have been tried without success or have not been tried as they would be bound to fail; and (f) it is in the public interest to produce or allow access to the material, having regard to the benefit of the investigation if the material is obtained and the circumstances under which the person holds the material.
¶6.10 The second set out access conditions which applies to excluded matter provide that an order may be made where:534
(a) there are reasonable grounds for believing that there is material which consists of or includes excluded or special procedure material on the premises owned by the person named in the application, and/or premises occupied or controlled by the person set out in the application; (b) a warrant would have been appropriate and available, but for the repeal by s9(2) of PACE of all provisions allowing warrants to be issued for such material.
¶6.11 Examples of circumstances in which a power to issue a search warrant in respect of an offence
being investigated prior to PACE coming into force include investigations into stolen goods and offences under the Official Secrets Act. It is therefore unlikely that journalistic material would be sought pursuant to the second condition and case law indicates that journalist material is generally sought by the police under paragraph 2 of Schedule 1. It can be observed that there is very limited scope for obtaining access to excluded material.
¶6.12 Again, for the protection of journalistic privilege, the procedure for obtaining a production
order is fairly rigorous. An application must be made to a Circuit Judge and notice must be given to the person in possession of the material.535 A judge may only make an order if satisfied that one of the access conditions is fulfilled and the judge must exercise their powers with great care and caution and must be shown such material as is necessary to enable them to be satisfied before making the order, and told of anything which may weigh against the making of the order.536 The judge must determine whether the conditions are met. It is not sufficient to simply consider whether the decision of the constable that the conditions were met is reasonable. The judge retains discretion to refuse to grant the order, even if the necessary condition is satisfied, and this permits the possibility that in an appropriate case, the view may be taken that there is a lack of proportionality between what might be gained to the investigation as against stifling public debate.537 Once an order has been made, it is subject to challenge by way of judicial review.
¶6.13 On a number of occasions the police have used these powers to obtain orders requiring the
1952press to hand over film and photographs of demonstrations or events giving rise to public order offences. These provisions have been recently analysed in the case of R (on the application of British Sky Broadcasting Ltd and others) v Chelmsford Crown Court.538 The claimants included BSkyB, ITN, BBC, an independent production company and a freelance video journalist who had filmed for news purposes the Dale Farm evictions of travellers. Essex Police sought and were granted orders for production of footage on the basis that the footage would be of