On Monday 3 February the Second Reading of the Deregulation Bill takes place in the House of Commons. Hidden away amidst changes to the regulation of knitting yarns, sale of liquor confectionary to children and repeal of archaic offences of shaking carpets or keeping pigsties, is a provision that seeks to repeal some of the journalistic protections in the Police and Criminal Evidence Act 1984, which currently ensure that there is proper inter partes judicial scrutiny before police applications to obtain journalistic material are granted.
Clause 47 of the Deregulation Bill removes the statutory procedural safeguards set out in Schedule 1 of PACE, and replaces them with a power to make rules to provide for an as yet undefined process. The removal from parliamentary scrutiny of such a fundamental free speech protection is worrying. As the Newspaper Society have pointed out, these provisions have been in place for thirty years, were deliberately enshrined in PACE so as to strengthen journalistic protections, have been authoritatively considered by the courts and pragmatically applied by the police, the media and the courts.
Media organisations want the underlying authority to derive from statute, not from delegated rules. They have no objection to the creation of powers to make Criminal Procedure Rules, which would assist in ensuring consistency in police adherence to the existing PACE framework, but strongly object to what they see as the inappropriate use of the Deregulation Bill to achieve this by way of removal of the underlying statutory authority. There are already existing statutory provisions in the Terrorism Act 2000 (“TACT”) and the Proceeds of Crime Act (“POCA”) which allow for procedural rules to be made for Production Order applications under those Acts, and there is no reason why PACE should not do likewise, but not at the expense of removing the statutory power.
One worrying potential consequence of this is around the use of closed material procedures (“CMPs”). The current statutory provisions in TACT and POCA, do not give a power specifically for the rule makers to provide for CMPs. Nonetheless, the rule makers could well include such provisions in the existing Criminal Procedure Rules. CMPs contravene a fundamental common law principle of open justice by allowing for any part of the information relied upon by an applicant on an application for a production or other order, to be withheld from a respondent. Arguably, although the point has not yet come up for full argument, those rules are ultra vires and should be struck down.
In the recently heard appeal before the Supreme Court in R (B Sky B) v Central Criminal Court case, (judgment is still awaited) there was a partially ‘closed’ hearing of an application for a production order under Schedule 1 PACE – it was raised in argument by the Police (although not is issue on the facts) that the CMP rules for TACT and POCA were lawfully made. The media doubted this (in Al-Rawi, the Supreme Court was clear that Parliament had to provide for CMPs as a derogation from the Article 6 / fair trial right – and that any such derogations should be properly debated in the course of introduction of primary legislation).
Assuming that clause 47 is passed, and that the Criminal Procedure Rule Committee acquires the relevant rule making powers, it is highly likely that similar powers for CMPs will also be introduced in any new Criminal Procedure Rules for PACE. If a general rule making power is included in the primary legislation, but again, no specific provision allowing for rules to be made for a CMP in PACE applications, the position under PACE will be, in effect, the same as under TACT and POA, and it will be arguable that such CMPs are also ultra vires:
Currently, on an application for a production order under Schedule 1 PACE, paragraphs 7 and 8 require the application to be made inter partes and provide for the methods by which notice of the application ‘may’ be served. Schedule 1 does not expressly require that notice of an application must be given to a respondent. Rather it requires the court to convene a hearing for both parties to attend. It is vital that any rules that are made, retain the requirement for there to be an inter partes hearing in cases involving journalistic material. The current implied requirement for notice should be made express. The current obligation to accompany any such applications by a written information (or witness statement) from a constable setting out in detail precisely how the access conditions have been complied should be retained.
This appears to be yet another backdoor attempt to limit and restrict essential and hard fought journalistic protections.
Gill Phillips is the Director of Editorial Legal Services at Guardian News and Media