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High Court quashes ruling permitting Met Police to review journalist’s material

Published:

Re: R (LXP) v (1) Central Criminal Court (2) Commissioner of Police for the Metropolis [2023] EWHC 2824 (Admin) – Divisional Court quashes ruling permitting the Metropolitan Police to examine materials belonging to a journalist

In a judgment handed down on 10 November 2023, the Divisional Court (Macur LJ and Garnham J) has quashed a ruling of His Honour Judge Mark Lucraft KC, the Recorder of London, by which the Judge had made directions permitting the Metropolitan Police Service (“MPS”) to examine materials belonging to the Claimant which had been seized as part of an ongoing criminal investigation.

The background to the claim was that the MPS had been granted warrants under the Official Secrets Act 1911 for the seizure of materials from the Claimant’s residential and work premises in the context of an investigation into suspected offences under the Official Secrets Act 1989. Following execution of the warrants, the Claimant challenged the seizure of the materials on the basis that he was a journalist and access could only lawfully be sought to journalistic materials under s 9 of the Police and Criminal Evidence Act 1984 by way of a procedure which had regard to journalistic rights under Article 10 ECHR and s 10 of the Contempt of Court Act 1981. In response, the MPS applied, under s 59 of the Criminal Justice and Police Act 2001, for directions by which they could examine the seized materials. That application was granted by the Recorder of London.

The Divisional Court granted, on all grounds, the Claimant’s judicial review claim in respect of the Recorder of London’s decision. The court rejected the distinction drawn by the Judge between “true journalistic material and material that has been stolen”, and held that, in resolving the matters in issue, the court was obliged to “strain to find a means of eliminating or, where that is not possible, reducing the pressure on each of a journalist’s important entitlements of the right not to incriminate him or herself, and their right to avail themselves of the protection of Article 10 ECHR”.

The court therefore quashed the Recorder of London’s ruling, and made directions by which independent counsel, but not the MPS, would review certain of the materials seized and the court would then decide whether to permit inspection to the MPS, based on representations from the Claimant and having regard to his rights under Article 10 ECHR.

Alex Bailin KC and Ben Silverstone (instructed by Katie Wheatley, Alice Hardy and Salima Budhani of Bindmans LLP) acted for the Claimant.