Court orders forcing news organisations to hand over footage of protests to police are rightly controversial. Understandably, those featured are not keen on them; more contentious is the way that they more generally cast the neutrality of the media in doubt. The access which the TV news enjoys to protests is endangered by a sense that what they film is potentially police evidence as well as the public record.
Eady J and Moses LJ handed down a judgment on 17 May 2012 in a Judicial Review brought to challenge orders made to produce footage of the evictions at the Dale Farm (R (on the application of BSkyB v Chelmsford Crown Court  EWHC 1295 (Admin)).
The decade-long dispute over unauthorised traveller use and development of land at Dale Farm in Essex came to an end on 19 and 20 October 2011. Essex Police were involved in helping Basildon Borough Council enforce a court order that those Travellers who were on the site illegally should be evicted from it. There were violent clashes between the police and protesters as they moved in to the site at dawn on 19 October, with the police using Tasers, and protesters throwing missiles.
Like the long-running campaign and extensive litigation that preceded the eviction, the day itself was covered intensively by the media, including the five Claimants here (BSkyB, ITN, the BBC, production company Hardcash, and freelancer Mr Jason Parkinson). While thirteen people were arrested for a range of offences, the police believed that another 15 or 20 participated in the violence but had not been identified. They applied for and obtained production orders against the Claimants from HHJ Gratwicke sitting at Chelmsford Crown Court in respect of footage filmed on the two days of the eviction, amounting to over 100 hours of video. The claim for Judicial Review was brought to challenge these orders
The application at the Crown Court was made under Part II of PACE 1984, which, in Schedule 1, sets out access conditions which must be fulfilled for a production order to be made. These include that there are reasonable grounds for believing that an indictable offence has been committed, 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”,
and that it is likely to be relevant evidence.
Eady J, giving the leading judgment, referred to two cases which illuminate the operation of this part of PACE. In R (Bright) v Central Criminal Court  1 WLR 662 the Court emphasised that the judge deciding an application of this kind must be satisfied that the access conditions are fulfilled, and that the constable applying must satisfy the judge that the conditions are established in the first place. If they are, then the judge has a discretion to conduct a balancing exercise, described in Malik v Manchester Crown Court  EMLR 19 as involving attaching weight to the convention right which the order interferes with, and measuring the proportionality of any order against that weight.
The Claimants challenged the productions orders on three overlapping grounds: firstly, that the judge had no power to make them because there was insufficient evidence before him to show that the footage was of substantial value to the investigation; secondly, that the interference with the Claimants’ Article 10 rights could not be justified under Article 10.2; and, thirdly, that the Claimants were not given a fair hearing at the Crown Court.
The Judge accepted the Claimants’ argument that the access conditions were not made out, in that the case the police put forward did not refer to a specific offence, but instead to the fact that some of the footage might contain material which could help identify those involved in the violence. He called this a speculative exercise “underlined by the scattergun approach towards identifying the material sought”.
He found that HHJ Gratwicke had merely outlined the criteria (how the footage could be relevant to an investigation) rather than how they were fulfilled (how it was relevant). A theory that the footage might reveal the identity of an unidentified suspect in the hours after the violence was only a theory and there was “no solid evidence”.
The second ground of challenge entailed the balancing of competing public interests: that of the police in tracing those involved in the violence, and that of the Claimants’ exercise of their Article 10 rights. Under 10.2, the police had to demonstrate the necessity and proportionality of the order sought because of the “substantial value” attaching to the material in the context of the investigation. Without material meeting the access conditions, there was no opportunity to balance these interests.
Eady J referred to the principles outlined in Bergens Tidende v Norway (2001) 31 EHRR 16:
“Where, as in the present case, measures taken by the national authorities are capable of discouraging the press from disseminating information on matters of legitimate public concern, careful scrutiny of the proportionality of the measures on the part of the court is called for.”
Here, the production orders did create the risk of discouraging the press: a perception of cooperation could make life difficult for them in obtaining access to demonstrations or working at them, and could even increase the risk of violence to cameramen. HHJ Gratwicke did not accept the assertion in the Crown Court by one of the Claimants that he would lose independence by being forced to hand over the footage, but the Judge here said that, where he did so, “he would be disadvantaged by the perception of others”.
For similar reasons, the third ground of challenge was also accepted. Without a cogent case to meet from the police, the Claimants had not had the opportunity in the Crown Court to demonstrate why their material could not assist the force. Inadequate disclosure by the police of what footage they had themselves meant that the Claimants (like the Crown Court judge) were handicapped.
The burden to be discharged in obtaining disclosure orders against the media means producing evidence as to what the footage will reveal, how important this would be to an investigation, and why it is necessary and proportionate to order the intrusion. As the burden was not discharged here, the judge could not justify ordering disclosure, and the orders were quashed.
The media are rightly delighted with this decision. ITN Chief Executive John Hardie described it in the Guardian as one which “underscores the fundamental principle of press independence”. Allowing the production orders to stand would have dangerously blurred the lines between media and police. Counsel for the Claimants referred to the wider context of other police applications for footage of protests and disorder, which were, for example, made against news organisations in relation to footage of last summer’s riots. During the disorder, journalists on the ground had already experienced hostility from protesters, highlighting how important it is that they are perceived to be neutral.
Both the fact that street protests have become more frequent in recent years, and that new technology has made video journalism cheaper, easier and more widespread (one of the most memorable images of the riots came from a journalist’s mobile phone footage), make the protection of the integrity of this kind of news-gathering even more significant. In line with other areas of the law, the decision makes it clear that Police cannot embark on fishing expeditions in an effort to discover or prove the commission of offence.
Even where evidence that footage will be of substantial value is produced, a balancing exercise must then take place between the competing public interests of the police’s need to prevent crime and the media’s Article 10 rights. The recognition of these rights in all situations in which the law is applied to the media, and the processes of attaching weight to them, and weighing them up against other interests, are steps that still haven’t made it to all parts of our court system: simply referring to ‘balancing’ is not the same as actually carrying it out.
Where this balancing takes place, as in last year’s case of R (Gaunt) v Ofcom  1 WLR 2355, the Strasbourg jurisprudence plays its part, evidenced here by the reference to Bergens Tidende. The domestic law is not short of explanations of the importance of Article 10 and the extent to which freedom of expression may be constrained as far as is necessary in a democratic society. But it is the ECHR’s extensive line of judgments on freedom of expression that offers both principles of law and concrete factual examples of the right, and its limits, in operation in a range of situations. It might have played a part in restricting the media’s activities in some areas, such as privacy, but the Human Rights Act continues robustly to support them in others.
Gervase de Wilde is a former journalist at the Daily Telegraph and is a student barrister.