New Judgment: R (British Sky Broadcasting Ltd) v Commissioner of Police of the Metropolis  UKSC 17
12 Wednesday Mar 2014
On appeal from:  EWHC 3451(Admin).
The police appealed against BSkyB’s judicial review of a Crown Court decision to grant a Production Order to obtain journalistic material, under the Police and Criminal Evidence Act 1984, Sch 1. During the course of the Production Order hearing, the police had made an application to adduce further evidence in the absence of BSkyB’s representatives. Held: the principle in Al Rawi v The Security Service  UKSC 34, applied to civil and criminal trials, and required that any evidence be disclosed to all parties. However, in general the Al Rawi principle should not be applied to statutory procedures designed to gather evidence from a third party for a possible case, since they do not involve the determination of substantive legal rights. An application under Sch 1 to the 1984 Act to obtain journalistic material was special, and was likely to involve the journalist’s legal rights. Parliament had recognised this when it legislated that such an application under Sch 1 should be heard inter partes. The exclusion of one party from some or all of the evidence was inconsistent with the nature of an inter partes hearing.