APPENDICES

substantial value to police investigations into offences of violent disorder and other offences. The orders were challenged by way of judicial review. The Divisional Court held that full account must be taken of Article 10 considerations when determining an application under Sch 1.539

¶6.14 The court further noted that there was a need to balance the competing public interest

considerations in the context of journalistic material and, whilst it is difficult to dispute that there is a real public interest in tracing any of those persons who were involved in public disorder or violence, that had to be set against the level of interference with the Claimants' Article 10 rights inherent in the production orders made. Having regard to the terms of Art 10(2), it was for the Essex Police to demonstrate that this degree of interference and the wide scope of the production sought was necessary and proportionate because of the "substantial value" attaching to the relevant material in the context of the investigation. On the facts there was insufficient evidence to justify this conclusion.540

¶6.15 It was noted that whilst the statutory provisions allowing disclosure orders can be of great

value in tracing those responsible for public order and other offences and thus in serving the public interest, the importance of establishing the access conditions should never be underestimated. There is a burden to be discharged and disclosure orders against the media, intrusive as they are, can never be granted as a formality. There must at least be cogent evidence as to; (i) what the footage sought is likely to reveal, (ii) how important such evidence would be to carrying out the investigation, and (iii) why it is necessary and proportionate to order the intrusion by reference to other potential sources of information. In these proceedings, the burden was not discharged.541

¶6.16 Other material that does not fall within the definition of journalistic material that attracts the

categorisation of "excluded" or "special procedure" material, is subject to normal procedures for search warrants and can be granted by a magistrate without any right on the part of the media to object and without a public interest test.

¶6.17 An issue of some importance is whether "journalistic material" includes material which

has been obtained with the intention of furthering a criminal purpose, or, put another way, whether the protections set out in PACE for "excluded" or "special procedure" material still apply where the material has been acquired in furtherance of a crime.542

¶6.18 PACE includes an express caveat in the context of legal professional privilege that items held

with the intention of furthering a criminal purpose are not subject to legal privilege, however there is currently no equivalent provision for journalistic material.543 There is no direct authority which addresses the issue of whether journalistic material will not be held under an obligation of confidence where it has been obtained in the context of criminal behaviour, although the case law on the duty of confidentiality more generally acknowledges that the public interest in protecting confidences can be outweighed in certain circumstances, For

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¶Appendix 4 | Legal Materials

example, a person cannot be a confidant in respect of a crime of fraud.544 It is therefore currently unclear whether material obtained in the context of criminal behaviour by a journalist would attract the protections of Schedule 1 by virtue of being excluded or special procedure material.

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¶appendix 5

EVIDENCE RELEVANT TO THE GENERIC CONCLUSIONS ON THE RELATIONSHIP

¶BETWEEN POLITICIANS AND THE PRESS:

PART I CHAPTER

Introduction 1.1 This Annex should be read as a whole. In particular, it should be noted that:

(a) the references are set out in alphabetical order by the name of the witness. No particular inference should, therefore, be drawn from the order in which they are presented; (b) in most cases, the facts upon which the conclusion is based in Part I Chapter 8 are readily apparent from the terms of the criticism itself and the evidential references, and are not separately stated at length; (c) some of the conclusions overlap and the supporting facts and evidence are not always set out more than once; (d) the evidence referenced in support of each conclusion is intended to be representative rather than exhaustive, especially in cases where the Inquiry received significant volumes of similar evidence.

¶1.2 It is the cumulative effect of the evidence cited, taken together and looked at as a whole, which supports the conclusion.

Referencing 2.1 The full title of each witness is given in the first reference to their evidence. Witness statements,

exhibits and transcripts are identified by a hyperlink to their location on the Inquiry website, www.levesoninquiry.org.uk.

¶2.2 When reference is made to a witness statement, the numbering system of that document,

i.e. paragraph or page number, has been used. For example, page 12 of the Supplementary Witness Statement of Mr Alan Rusbridger is cited as follows:

Mr Alan Rusbridger p12, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/ 01/Supplementary-Statement-of-Alan-Rusbridger.pdf

A reference to a page in a witness statement does not necessarily imply that the content of the entire page is cited as support for the related fact. Where available, paragraph numbers have been used.

¶2.3 When reference has been made to a passage in a transcript, the passage is identified in the

form [page number]/[line number]. The page number is a reference to pages of the transcript, not to pages of the pdf document. There are 4 transcript pages per page of the document. For example, the passage from page 19, line 5 to page 21, line 4 in the transcript of the afternoon of 23 April 2012, during Mr Evgeny Lebedev's evidence is cited as follows:

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