Judgment was handed down on 19 February in an application in WFZ v BBC [2023] EWHC 343 (KB). The application was brought by the claimant, WFZ, for permission to use a witness statement which was previously provided by the BBC for the purposes of resisting the claimant’s application for an interim injunction in the active criminal proceedings to which he remains subject. 

Elizabeth Wiggin

Elizabeth Wiggin

The claimant, WFZ, has a high public profile and is subject to active criminal proceedings relating to multiple allegations of serious sexual offences against three different complainants.

The defendant is the BBC.

Background

The claimant was arrested in 2022 on suspicion of serious sexual offences. Meanwhile, the BBC had been conducting a news investigation with a view to publishing a report, the focus of which was a critique of the sector in which WFZ worked and the failure to act appropriately on allegations of sexual and relationship abuse made against employees.

As part of that investigation, a journalist spoke to the three complainants whose allegations were the subject of the live criminal proceedings against the claimant. On 5 June 2023, the journalist wrote to WFZ outlining the BBC investigation, the complainants’ allegations and some material provided by others. The letter put WFZ on notice of the proposed publication of the BBC report, and said that it intended to name him. That letter prompted an application from WFZ for interim injunctive relief to restrain the publication of the report in any form which identified WFZ or was likely to identify him as the subject of active criminal proceedings, pending his claim being heard at trial.

Interim injunction

In June 2023, Mrs Justice Collins Rice granted an interim injunction at a hearing held in private restraining the publication of a proposed BBC report in any form which identified WFZ, or was likely to identify him, as the subject of active criminal proceedings, pending trial of his claim. In his claim, WFZ seeks permanent injunctive relief on the grounds that publication of such a report would constitute misuse of private information, contempt of court and/or a breach of his rights to a fair criminal trial under article 6 of the European Convention on Human Rights (ECHR).

Background to this application

In this application, made under Civil Procedure Rules (CPR) 32.12(2)(b), WFZ applied for permission to use a witness statement of the BBC journalist which was drafted for the purposes of resisting WFZ’s application for an interim injunction last June. That witness statement contained information about how the journalist became aware of the allegations, how they were investigated and what conclusions the BBC came to. The document was subject to access protection on the court file and to reporting restrictions.

WFZ wanted to use the witness statement as part of the ongoing criminal investigation and in order to defend himself. He claimed that the information contained in the witness statement was directly relevant to the criminal investigation and that it would highlight what he alleged were ‘significant discrepancies’ between what the complainants told the police and what they separately told the BBC journalist.

Prior to the hearing of the claimant’s application, a police detective working on the criminal investigation told the court that the police had requested disclosure of various material connected with the BBC’s investigation, which would include the witness statement in question. The detective confirmed that the BBC had refused, relying on its editorial guidelines to decline to release untransmitted journalistic material without a court order. The police and CPS confirmed their intention to apply for an order pursuant to section 9 and schedule 1 of the Police and Criminal Evidence Act 1984 (PACE) to compel the BBC to disclose the material. However, no application under PACE had been made by the time of the hearing.

The court was asked to determine:

  • whether the witness statement was ‘material acquired or created for the purposes of journalism’ pursuant to section 3 PACE;
  • what test the court should apply to WFZ’s application; and
  • whether WFZ should be permitted to refer to the witness statement in submissions to the police and/or CPS.

WFZ’s position

WFZ accepted that a claimant has the burden of establishing that permission should be given, and has to show ‘a good reason’ to depart from the default rule that a witness statement may be used only for the purpose of the proceedings in which it is served. WFZ submitted that in coming to its decision on such an application, a court must take into account the balance of justice between the parties and the public interest in the administration of justice. WFZ argued that his interests in the witness statement were stronger than the BBC’s in the balance of fairness. Counsel for WFZ contended that the only reason he needed permission to make collateral use of the witness statement was that the June hearing was held in private; however this was to protect WFZ’s own interests and enable a fair hearing of the injunction application. He argued that he was not seeking collateral use of any compelled material or any material with a live purpose in the litigation; he instead sought permission to use material properly in his own hands for a purpose that is entirely consistent with the injunction he obtained and other privacy rulings by which it is protected.

The BBC’s position

The BBC contended that the application was an unusual one in which a criminal suspect was trying to deploy CPR 32.12(2)(b) to disclose journalistic material to which they have no right otherwise than on the terms set out in the PACE regime. The BBC firmly adheres to its published editorial policy of not consenting to journalistic material being passed to criminal law enforcement agencies without a PACE production order.

The BBC argued that the witness statement contained ‘material acquired or created for the purposes of journalism’ (section 3 PACE). It comprised journalistic material, and special procedure material under section 4 PACE in the hands of the BBC; and, in the hands of the claimant, it comprised journalistic material held in confidence and therefore ‘excluded material’ under section 1 of PACE.

The BBC noted that police were entitled to apply for a production order for the material under section 9 and Schedule 1 PACE, which is what they said they would do, but that application had not been made yet.

Decision

The judge firstly held that the witness statement was journalistic material:

  • The purpose of publishing the expose report was ‘undoubtedly a journalistic purpose’ and the witness statement drafted in support of resisting WFZ’s injunction application was in furtherance of that journalistic purpose.
  • Even if the witness statement were regarded as a document created for the purposes of litigation rather than journalism, that did not prevent the content from including material both acquired and created for the purpose of journalism.
  • The police themselves appeared to have accepted that the witness statement contained journalistic material as defined by PACE as they planned to apply for a PACE production order.

As such, the judge said that: ‘I cannot agree that the claimant’s application is only a request for permission for the further use of material lawfully in his hands, and for a purpose which is consistent with the reasons for the derogations from open justice which protect his interests. It is also a request for the exercise of legal compulsion over unpublished journalism.’

With regard to the correct test to apply, the judge noted that the PACE test could only be applied to a PACE application, which was not the application before the court. The police and CPS would need to make their own representations under a PACE application for a production order in due course.

The ultimate issue with WFZ’s application was its prematurity. He should have waited until after the police made an application for a production order under the PACE regime. If the application were successful, WFZ might well have a prima facie case for applying under CPR 32.12 for permission to use the witness statement at that stage. If the PACE application failed, WFZ’s position on a CPR 32.12 application may depend on the reasons given for the refusal. Either way, the High court would then be in a position to consider the merits of WFZ’s application in their own right.

The judgment emphasised that the PACE regime has careful protections built in not only for journalism but also for suspects, complainants and potential witnesses, the nub of which is the fair conduct of continuing and future criminal proceedings. It was plainly in the interests of justice for the criminal processes to take their course without interference.

Comment

The judgment provides useful commentary on the circumstances in which a witness statement can constitute journalistic material, together with highlighting the clear distinction between the civil regime under CPR 32.12 and the criminal regime under PACE. While witness statements are currently not available to non-parties without permission of the court, this may well be due to change with the current consultation taking place to amend CPR Part 5.4C, which would bring witness statements under the umbrella of documents which are available to non-parties without permission of the court.

 

Elizabeth Wiggin is a senior associate at Wiggin, London 

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