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Search warrants against investigative journalists quashed in Northern Ireland

In the matter of an application by Fine Point films MOR11288

Related Member(s):
Gavin Millar QC
Related Practice Area(s):
Media and Information Law, Public Law
Court:

This case is concerned with the circumstances in which police can use the ex parte procedure contained in the Police and Criminal Evidence (Northern Ireland) Order 1989 (“PACE”) to obtain a search warrant in respect of journalistic material. The applicants seek orders quashing warrants issued to a police detective of the serious crime branch of the PSNI on 10 August 2018 authorising the search of the homes of the second and third applicants and the business premises of each of them in connection with the investigation of offences of theft, handling stolen goods, unlawful disclosure of information entrusted in confidence and unlawfully obtaining personal data.

Held: the order for the warrants are quashed. It is a fundamental principle of any ex parte hearing that it also be a fair hearing. That is particularly the case where the object of the application is to significantly intrude into the private and family lives of those affected.  The court should have imposed a heavy onus on those seeking to pursue ex parte proceedings to take all reasonable steps to ensure that the proceedings are fair.

Although there was some acknowledgement of the importance of journalists in a democratic society in the course of the hearing the judge was not advised that Article 10 Convention rights were engaged, nor was he provided with any of the relevant jurisprudence nor was it made clear to him that a warrant such as this sought could only be justified by an overriding requirement in the public interest. This issue was absolutely fundamental to whether or not a warrant should be issued and the failure to address it means that we can have no confidence that the trial judge applied the right test.

The conduct of this hearing fell woefully short of the standard required to ensure that the hearing was fair.  That was sufficient for our decision to quash the warrant.

Gavin Millar QC was involved in this case.