The Deregulation Bill, debated by MPs today, has caused alarm after it was highlighted that one of its clauses, which alters the process for obtaining production orders with regard to material held by journalists, significantly undermines the essential protections for journalists from being forced to hand over material to the police.
Of particular concern is a warning from Gavin Millar QC, who is currently representing BSkyB in a case where the Metropolitan Police are seeking material from them, is that this change could be combined with a ‘Closed Material Procedure’ – where a court sits in closed, or secret, session – and would mean the media is not present, or in some cases even notified of the hearing, when the police make an application to seize material.
Currently requests for material belonging to a journalist or media organisation must be made in open court, with the opportunity for challenge by the organisation affected. The combined effect of this change and closed material proceedings could lead to a situation where a judge is asked to consider a production order in a secret hearing without adversarial debate between the requesting body and the media organisation involved.
The Newspaper Society has warned that “The Bill would remove the mandatory statutory procedural safeguards in PACE itself, which allow the media to have advance notice of police applications for production of journalistic material by the media and guarantee inter partes hearings.”
We are deeply concerned that this would hinder the work of investigative journalists pursuing matters relating to the state, while also putting at risk the safety of journalists who may not be seen as impartial observers of events if their material begins to be regularly used in criminal cases as evidence.
Applications to seize material should be heard in open court with the full knowledge and adversarial involvement of the party that holds the information.
Parliament should not delegate the detail of important legal safeguards to the Criminal Procedure Rules, and maintain a protection for material held by journalists and media organisations in primarily legislation.
We call on the Government to urgently clarify that this will remain the case and to take steps to ensure the Deregulation Bill does not change the existing framework.