Under PACE, journalists can only be ordered to produce immediately admissible trial evidence


Re: R (BBC) v Newcastle Crown Court [2019] EWHC 2756 (Admin)

DE, a former Newcastle United footballer, was interviewed live-to-air on the Victoria Derbyshire show about sexual abuse by a club coach in the 1990s. A BBC researcher had made a note of a mock interview with DE, recording answers giving his account of the abuse.

DE was to be a prosecution witness at the subsequent Crown Court trial of the coach. After the trial commenced the police obtained a production order for the note from the trial judge under  Sch 1 to the Police and Criminal Evidence Act 1984. The CPS wanted to disclose it to the defence for possible use to attack DE’s credibility at trial, if (depending on its contents) it undermined/contradicted his evidence for the prosecution.

Held: The Divisional Court upheld the judge’s rulings that the police application was “for the purposes of a criminal investigation” under PACE, s 9(1), and that the note was likely to be of substantial value to the investigation. But another PACE, Sch 1, para 2, access condition requirement was not made out because it was not open to the judge to conclude that the note was “likely to be admissible evidence”. The DC held that this access condition requires that the material the journalist is ordered to produce must be immediately admissible per se, whereas the admissibility of this document was conditional.

Gavin Millar QC was involved in this case.