01 Nov REPORTING RESTRICTIONS – BBC OVERTURNS PRODUCTION ORDER RELATING TO JOURNALIST’S NOTE

The BBC has successfully challenged a production order which required it to produce a journalist’s note of an interview with a man who became a witness in a criminal trial.

The trial was of George Ormond, who was accused of sexually assaulting boys and young men while he worked as a youth football coach in Newcastle between the 1970s and 1990s.

One of the complainants, David Eatock, gave an interview to the BBC’s Victoria Derbyshire, and a recording of that interview was available at the trial, but there were differences between the account he gave in the interview and the account he gave to police two weeks later.

To prepare for the live interview, a BBC journalist conducted a mock off-air interview with Eatock to see what he would say, for which she prepared a typed note of her questions and Eatock’s answers.

It was this note which was the subject of an application by Northumbria Police for a production order under the Police and Criminal Evidence Act 1984 (“PACE”), which it sent to the BBC just 10 days before Ormond’s trial.

The BBC resisted the application, but the Judge granted the Order just over a week before Eatock was scheduled to give evidence, and the BBC decided to comply under protest while making a claim for judicial review to challenge the Judge’s decision.

The Court conducted a review of the production order regime and considered four grounds advanced by the BBC to challenge the Order.

On the third, successful, ground, the Court considered whether the Judge was correct to hold that for the journalist’s note to be relevant evidence for the purposes of a production order, it did not need to be immediately admissible.

The Court found that the trial Judge had made an error: a person can only be ordered to produce material which will be immediately admissible in evidence without more. It is not enough that the material sought may become admissible because of some future event, such as statements being given at trial which are inconsistent with a previously given statement.

The Court did not need to reach any conclusion on the fourth ground, that the Judge erred in his evaluation of the public interest in comparing the benefit likely to accrue to the investigation against the BBC’s Article 10 right to receive and impart information.

It did, however, acknowledge that it is “critical that the media are able to speak to sources, including alleged victims of sexual abuse, without those individuals fearing that a record made of their account by a journalist can be obtained by the police and made available to defence counsel to attack their credibility at trial.”

Production order applications have increased significantly in recent years, particularly in light of the scrutiny faced by the Police and CPS over their fulfilment of disclosure obligations, and can consume extensive time and costs for media organisations.

This decision, which the Police accepted would assist police forces, prosecutors and the media, limits the type of material that can be the subject of such applications, and is a positive development for the media, making speculative applications less likely.

The ruling makes it clear that unless a media entity has evidence which would be immediately admissible at trial (such as footage which shows offending taking place), the relevant condition under PACE will not be satisfied, and any application is unlikely to succeed.