Gavin Millar QC doughty street chambers Heather Rogers QC matrix chambers

1. Gavin Millar QC doughty street chambers Heather Rogers QC matrix chambers

2. PRODUCTION ORDERS: LAW AND PRACTICE POLICE AND CRIMINAL EVIDENCE ACT 1984 (�PACE�) Section 9(1): police may obtain access to excluded or special procedure material for the purposes of a criminal investigation by application under PACE Schedule . 700 applications each year (most uncontested)

3. PRODUCTION ORDERS: PACE journalistic material (section 13) material acquired or created for the purposes of journalism in the possession of the person who so acquired or created it

4. PRODUCTION ORDERS: PACE excluded material (section 11) journalistic material held subject to an express or implied undertaking to hold it in confidence and has been continuously so held since it was first acquired for journalistic purposes.

5. PRODUCTION ORDERS: PACE special procedure material (s14) journalistic material, other than excluded material

6. PRODUCTION ORDERS: PACE So special procedure material: material acquired or created for the purposes of journalism in the possession of a person who so acquired or created it; but not held subject to an express / implied undertaking to hold it in confidence; or not so held continuously since first acquired for journalistic purposes.

7. PRODUCTION ORDERS: PACE Under Sch 1: Judge may make order for production of or access to journalistic material if satisfied one of two sets of access conditions is met.

8. PRODUCTION ORDERS: PACE First set of access conditions apply if reasonable grounds for believing that the material in question consists of or includes special procedure material but does not also include excluded material

9. PRODUCTION ORDERS: PACE First set of conditions are fulfilled if: reasonable grounds for believing indictable offence committed material is likely to be of substantial value material is likely to be relevant evidence other methods of obtaining material tried without success or not tried because bound to fail in the public interest that the material should be produced or access to it should be given having regard to the benefit likely to accrue to investigation if material is obtained; and the circumstances under which the person in possession of the material holds it

10. PRODUCTION ORDERS: PACE Second set of access conditions apply if reasonable grounds for believing that there is material which consists of or includes excluded material on the premises specified in the application a search of the premises could have been authorised by the issue of a warrant to a constable under a pre-existing enactment the issue of a search warrant would have been appropriate

11. PRODUCTION ORDERS: PACE discretion even if access conditions met, the court retains a discretion as to whether or not to make the order sought bearing in mind the wider public interest considerations

12. PRODUCTION ORDERS: PACE PACE procedure: Police must make application for production order/ warrant �inter partes� (on notice): Sch 1, at [7] Application usually made by way of information sworn before Crown Court judge Judge makes production order/warrant Failure to comply = contempt/warrant Parties can apply to discharge/vary, if circumstances change Can be application for judicial review

13. PRODUCTION ORDERS: TERRORISM ACT �terrorism� means the use or threat of action where� (a)���� the action (i) involves serious violence against a person, (ii) involves serious damage to property, (iii) endangers a person's life (other than the person committing the action), (iv) creates serious risk to the health/safety of the public/section of the public, or (v) is designed seriously to interfere with/to disrupt an electronic system. (b)���� the use or threat is designed to influence the government (or international governmental organisation) or to intimidate the public/section of the public, and (c)���� the use or threat is made for the purpose of advancing a political, religious or ideological cause

14. PRODUCTION ORDERS: TERRORISM ACT �terrorist investigation� (section 32) - investigation of: the commission, preparation or instigation of acts of terrorism an act which appears to have been done for the purposes of terrorism the resources of a proscribed organisation the possibility of making an order proscribing an organisation (section 3(3)) commission, preparation or instigation of an offence under the Terrorism Act 2000 (or some offences under the Terrorism Act 2006)

15. PRODUCTION ORDERS: TERRORISM ACT 2000 Schedule 5 � at [5(1)]: police officer may apply to court for an order for the purposes of a �terrorist investigation� Schedule 5 � at [5(2)]: the application shall relate to particular material - or material of a particular description - which consists of/includes excluded material or special procedure material (as defined in PACE) material subject to legal privilege is exempt (as under PACE) 100 or so each year (under predecessor legislation) � mostly unopposed

16. PRODUCTION ORDERS: TERRORISM ACT 2000 Two access conditions apply: Schedule 5 First access condition � [6(2)] The order for production is sought for the purposes of a terrorist investigation; and There are reasonable grounds for believing that the material is likely to be of substantial value, whether by itself or together with other material, to a terrorist investigation

17. PRODUCTION ORDERS: TERRORISM ACT 2000 Second access condition � [6(3)] That there are reasonable grounds for believing that it is in the public interest that the material should be produced or that access to it should be given having regard- To the benefit likely to accrue to the terrorist investigation if the material is obtained, and To the circumstances under which the person concerned has any of the material in his possession, custody or power

18. PRODUCTION ORDERS: TERRORISM ACT 2000 As under PACE, if the access conditions are fulfilled, the court has a discretion whether/not to make an order.

19. PRODUCTION ORDERS: LAW AND PRACTICE Resisting/challenging production orders: PACE: applications are on notice (�inter partes�). TA: usually application to vary/discharge following service Ex parte Salinger: guidelines regarding information to be given to respondent Is the respondent correct? Are the terms of the order sufficiently certain/too wide? Have the access conditions been met? (burden on police) Exercise of the discretion: Convention compliant? Arts 2, 3, 8, 10 PACE cases: section 10 Contempt of Court Act 1981 (�necessity� test for sources) Art 6 and �ex parte� hearings: special advocate?

20. PRODUCTION ORDERS: LAW AND PRACTICE Resisting/challenging production orders: Privilege against self-incrimination? (Pre-existing documents; width of TA offences relating to information � sections 38B, 19). Five factors (Malik): true benefit to investigation of material; importance of privilege itself: convincing justification required; gravity of offence with which person required to surrender material might be charged; risk of prosecution (immunity given?); bear in mind s78 PACE power to exclude.

21. TERRORISM ACT 2000: section 38B offence If a person has information they know or believe might be of material assistance� (a)���� in preventing the commission by another person of an act of terrorism, or (b)���� in securing the apprehension, prosecution or conviction of another person, in the United Kingdom, for an offence involving the commission, preparation or instigation of an act of terrorism. They commit an offence if they do not disclose that information �as soon as reasonably practicable� to a police officer. They have a defence if they prove they had a �reasonable excuse for not making the disclosure�.

22. TERRORISM ACT 2000: section 19 offence If a person� (a)���� believes or suspects that another person has committed an offence under any of sections 15 to 18 [that is, various offences relating to funding of terrorism], and (b)���� bases their belief or suspicion on information which comes to his attention in the course of a trade, profession, business or employment. That person commits an offence if they do not disclose to a police officer �as soon as is reasonably practicable� (a) their �belief or suspicion� and (b) the �information on which it is based�. They have a defence if they prove that they had a �reasonable excuse for not making the disclosure�.

23. PRODUCTION ORDERS: other statutory powers include.. Proceeds of Crime Act 2002, sections 343-345 Extradition Act 2003, sections 157-160 Crime (International Co-operation) Act 2003, section 22

24. PRODUCTION ORDERS: further reading R v Middlesex Guildhall Crown Court ex parte Salinger [1993] QB 564 Code B: Code of Practice for the Searching of Premises by Police Officers and the Seizure of Property found by Police Officers on Persons or Premises (http://police.homeoffice.gov.uk) R v Central Criminal Court, ex parte Bright [2001] 1 WLR 662 R (on the application of Malik) v Manchester Crown Court and another [2008] EWHC 1362 (Admin) (19 June 2008) Judgments available on www.bailii.org

25. PRODUCTION ORDERS: further reading European Court of Human Rights www.echr.coe.int Decisions on journalists� sources include: Goodwin v UK (27 March 1996) Voskuil v Netherlands (27 November 2007)