Case Law: Landmark Decision on Protection of Journalistic Materials under Official Secrets Act and PACE

Introduction

The case of R (on the application of) v Central Criminal Court, adjudicated by the High Court of Justice King’s Bench Division in 2023, centers on the legal complexities surrounding the seizure and search of journalistic materials under the Official Secrets Act 1911 (OSA 1911) and the Police and Criminal Evidence Act 1984 (PACE). The crucial point of contention is the treatment of materials that may be protected journalistic materials despite being unlawfully obtained.

Key Facts

The applicant, identified as the Claimant for confidentiality, had various devices and materials seized through warrants issued under the OSA 1911, suspecting offences related to national security and intelligence. The Claimant challenged the right of the Metropolitan Police Service (MPS) to download and search these materials on the ground that they include journalistic material. The Recorder of London initially permitted MPS to do so under the Criminal Justice and Police Act 2001 (CJPA), without a prior determination of whether such material could be defined as journalistic within the meaning of PACE or should be safeguarded under Article 10 of the European Convention on Human Rights (ECHR).

Legal Principles

Central to the case is the definition of “journalistic material” as delineated under section 13 PACE, which is material acquired or created for the purposes of journalism by someone engaged in that activity. The protective status of journalistic material under section 11 PACE, which designates it as “excluded material,” contrasts with section 9(1) OSA warrants that enable the seizure of materials without specific consideration for journalistic protections.

Furthermore, the statutory framework of CJPA, particularly sections 56 and 59, addresses the retention and examination of seized materials, allowing judicial discretion for the protection and return of journalistic material unless retained under section 56 or authorized by a court per section 59(6)-(7).

The High Court scrutinized how these principles interact with Article 10 ECHR, which safeguards the freedom of expression and the confidentiality of journalistic sources. The court considered case laws such as Miranda v Secretary of State for Home Dept [2014] 1 WLR 3140, El-Kurd v Winchester Crown Court [2011] EWHC 1853 (Admin), and R (BSkyB Ltd) v Central Criminal Court, which underscore the delicate balance between the public interest in prosecuting offences and preserving the freedom of the press.

Outcomes

The court ultimately concluded that the initial decision to permit the MPS to access potentially journalistic material without prior examination was incorrect. It emphasized the requirement for an independent determination on whether seized material is truly journalistic and the necessity to ensure protective measures adhere to Article 10 ECHR principles. Thus, the directions made by the initial judge were quashed.

The case was remitted back to the court with directions to appoint independent counsel to carefully examine the material against specific search parameters set forth by the MPS. Upon identification, the Claimant may classify them as journalistic material, after which the court will adjudicate based on Article 10 ECHR considerations and section 10 of the Contempt of Court Act 1981.

Conclusion

The High Court in R (on the application of) v Central Criminal Court reaffirm the vital legal safeguarding of journalistic material within the investigative processes of criminal law. The case illustrates the balance that courts must maintain between facilitating the investigation of serious offences and upholding the principle of freedom of expression and the protection of journalistic sources. The judgment asserts that even when materials are claimed to be unlawfully obtained, there is an imperative need to consider their potential status as journalistic material and the consequential application of ECHR rights before any inspection by law enforcement authorities.