High Court Deliberates on Use of Witness Statements in BBC Case: Balancing Fair Trial Rights and Journalistic Privilege

Citation: [2023] EWHC 343 (KB)
Judgment on

Introduction

The High Court of Justice case WFZ v The BBC presents a nuanced debate over the use of witness statements beyond their intended litigation purpose, journalistic privilege, and the implications of the right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR). At its core, the case examines the balance between the public interest, the integrity of the investigative process in criminal law, and the protections afforded to journalistic sources and material.

Key Facts

In the case at hand, the Claimant, a public figure facing active criminal investigations for multiple serious sexual offences, sought a permanent injunction to prevent the BBC from identifying him in a report, citing misuse of private information and potential violations of his fair trial rights. Additionally, the Claimant applied for permission to use a witness statement prepared by the BBC to resist a prior injunction application, for a purpose related to the active criminal proceedings against him.

Key aspects of this case include:

  • The application was heard in private to maintain the Claimant’s anonymity.
  • Derogations from open justice were already in place owing to the high-profile nature of the case.
  • Civil Procedure Rule 32.12 governed the use of witness statements for other purposes.

Several legal principles emerge from this case:

  1. Use of Witness Statements (CPR 32.12): According to CPR 32.12, witness statements are generally confined to the proceedings in which they are served unless consent for secondary use is granted by the witness or the court, or if the statement has been made in a public hearing. The court’s discretion to allow such use is a matter of controversy within the case.

  2. Need for ‘Good Reason’ to Depart from Default Rule: The Applicant must demonstrate a ‘good reason’ to deviate from the default rule that a witness statement can only be used for the proceedings it was created for.

  3. Judicial Discretion and Public Policy: The court’s discretion should be guided by a balance of justice and public interest, necessitating a careful consideration of journalistic privilege and the suspect’s right to a fair trial.

  4. Journalistic Material Protections (PACE Sections 11, 13, and 14): The potential application of the Police and Criminal Evidence Act 1984 (PACE) to the case highlights the protection accorded to journalistic material. Material intended for journalistic purposes can be disclosed to the police only under a PACE production order, subject to stringent conditions.

  5. Pre-Trial Article 6 ECHR Rights: The recognition of a suspect’s rights under Article 6 of the ECHR during the pre-charge period (as noted in R (Law Society of England & Wales) v The Lord Chancellor) solidifies the importance of the suspect’s opportunity to make representations to the CPS before a charging decision is taken.

Outcomes

The Honourable Mrs Justice Collins Rice ruled that:

  • The application was premature, as the outcome of the requested use hinged on the decision by the police/CPS to apply for a production order for the June WS under PACE.
  • The Claimant’s current purpose was understood as influencing the CPS’s decision regarding charging, not as a broader use in his potential defense.
  • Criminal processes should be allowed to continue without interference from civil courts.
  • The court found no compelling reason to intervene with the ongoing criminal procedures or to pre-empt police/CPS action.
  • The application was declined due to the lack of a ‘good reason’ to allow for the use of the June WS at this juncture.

Conclusion

In WFZ v The BBC, Mrs Justice Collins Rice’s decision reflects a keen respect for the protections afforded to journalistic sources under PACE, the right to a fair trial as encapsulated by Article 6 ECHR, and the orderly conduct of criminal investigations. The ruling underscores the significance of allowing criminal law processes to unfold without premature civil court intervention. The case further illustrates the delicate balance the courts must maintain when confronted with concurrent interests of privacy, journalistic ethics, and criminal law processes.