Case No: CO/4516/2011
Neutral Citation Number: [2011] EWHC 3451 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date:  

Before :

LORD JUSTICE MOORE-BICK
and
MR JUSTICE BEAN
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Between :

	THE QUEEN
(on the application of BRITISH SKY BROADCASTING LTD)	Claimant	
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	THE CENTRAL CRIMINAL COURT
and
THE COMMISSIONER OF POLICE for the METROPOLIS
and
AB	Defendant

Interested Parties	

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Mr. Gavin Millar Q.C. (instructed by Goodman Derrick LLP) for the claimant
Mr. James Lewis Q.C. and Miss Saba Naqshbandi (instructed by Metropolitan Police Directorate of Legal Services) for the defendant and the Metropolitan Police Commissioner
Mr. Simon McKay (solicitor advocate) for AB

Hearing date: 21st November 2011
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Judgment
Lord Justice Moore-Bick: 
1.	This is the judgment of the court to which both members have contributed.
Background
2.	This is an application by British Sky Broadcasting Ltd (“B Sky B”) for an order quashing a production order made by His Honour Judge Paget in the Central Criminal Court on 3rd May 2011 in favour of the first interested party, the Commissioner of Police for the Metropolis (“the Commissioner”) under section 9 and schedule 1 of the Police and Criminal Evidence Act 1984 (“PACE”). The order required B Sky B to produce within 14 days copies of various e-mails passing between one of its journalists and two named persons, one of whom is the interested party AB. (The other named person, CD, is not a party to these proceedings, but is likely to be affected by their outcome.) The order also required production of any photographs disclosed by AB or CD to the journalist, copies of broadcasts made by the journalist between certain dates, documents evidencing any payments made by the journalist to AB or CD, documents or records evidencing any claims for expenses made by the journalist in connection with AB or CD and documents and records showing all computer and electronic devices used by the journalist on behalf of B Sky B.
3.	The primary ground on which B Sky B seeks judicial review is that what was described as “secret” evidence was made available to the judge in support of the application to which it was not given access and on which it was therefore not able to comment. The procedure by which the order was obtained is therefore said to have been fundamentally unfair and unlawful.  The second ground of challenge is that the judge failed to give adequate reasons for finding that the conditions necessary to enable him to make the order were satisfied. B Sky B says that the sworn information supporting the application (sometimes referred to as the “redacted” evidence), was insufficient to support the findings of fact necessary to give the court jurisdiction. The third and fourth grounds are closely related but lead to the same conclusion, namely, that  the judge ought not to have made the order, since it involves an unjustified interference with the rights of B Sky B under Article 10 of the European Convention on Human Rights (“ECHR”). Given the nature of these submissions, it is necessary to describe in a little detail the course of the proceedings. Before doing so, however, it is convenient to set out the relevant statutory provisions.
4.	Section 9 of PACE provides:
“9.— Special provisions as to access.
(1)	A constable may obtain access to excluded material or special procedure material for the purposes of a criminal investigation by making an application under Schedule 1 below and in accordance with that Schedule.
(2)	Any Act (including a local Act) passed before this Act under which a search of premises for the purposes of a criminal investigation could be authorised by the issue of a warrant to a constable shall cease to have effect so far as it relates to the authorisation of searches—
(a)	for items subject to legal privilege; or
(b)	for excluded material; or
(c)	for special procedure material consisting of documents or records other than documents.”
5.	By virtue of sections 11 and 13 of the Act journalistic material, that is, material acquired or created for the purposes of journalism, is “excluded material” for the purposes of Schedule 1 if held in confidence. Journalistic material not held in confidence falls into the category of “special procedure material”: see section 14(1). It is common ground that the material covered by the production order includes both excluded and special procedure material.
6.	The relevant paragraphs of Schedule 1 for present purposes provide as follows:
“1. If on an application made by a constable a circuit judge is satisfied that one or other of the sets of access conditions is fulfilled, he may make an order under paragraph 4 below
. . .
3. The second  set of access conditions is fulfilled if—
(a) there are reasonable grounds for believing that there is material which consists of or includes excluded material or special procedure material on premises specified in the application, or on premises occupied or controlled by a person specified in the application (including all such premises on which there are reasonable grounds for believing that there is such material as it is reasonably practicable so to specify);
(b) but for section 9(2) above a search of such premises for that material could have been authorised by the issue of a warrant to a constable under an enactment other than this Schedule; and
(c) the issue of such a warrant would have been appropriate.
  
4. An order under this paragraph is an order that the person who appears to the circuit judge to be in possession of the material to which the application relates shall—
(a)  produce it to a constable for him to take away; or
(b) give a constable access to it . . .
. . . 
7. An application for an order under paragraph 4 shall be made inter partes.”
7.	A notice of application for a production order was served on B Sky B on 18th April 2011 in the name of Detective Sergeant Holt of the Metropolitan Police Service. It stated that an investigation was being carried out into offences under section 1 of the Official Secrets Act 1989 and was supported by an information sworn by DS Holt on 14th April 2011, to which it will be necessary to refer in greater detail in due course. At the same time there was also served on B Sky B a document headed “Application for a Production Order” drafted by counsel, which set out in some detail the nature of the arguments that the Commissioner intended to advance in support of the application. We were invited to treat it as an integral part of the application notice, although in substance it is more in the nature of a skeleton argument and that is how we shall refer to it. Paragraph 3 of that document stated as follows:
“Sky has been given a copy of the Notice seeking the Production Order and a copy of the information in support redacted to the extent that secret information has been excluded. The full information is to be provided to the judge including the redacted secret information.”
8.	Unsurprisingly, the service of that document generated some concern among B Sky B’s legal advisers, since it appeared that the Commissioner intended to lay before the judge in support of the application evidence to which he did not intend them to have access. On 20th April 2011 one of B Sky B’s legal advisers, Matthew Hibbert, wrote to the Metropolitan Police complaining that it had received only limited and general information of a kind that did not enable it to respond properly to the application. He also asked whether the offences being investigated were said to have been committed under section 1(1) or 1(3) of the Official Secrets Act. On 20th April the police responded, saying that any further request for disclosure would have to be made to the trial judge and that the investigation was into possible offences under both sections 1(1) and 1(3).
9.	In order to understand properly the course of the proceedings thereafter it is necessary to refer to the Official Secrets Act 1989 itself. Section 1(1) creates offences by members of the security and intelligence services and persons who have been formally notified that they are subject to the provisions of that subsection. Section 1(3), by contrast, creates offences by Crown servants or government contractors. It provides as follows:
“A person who is or has been a Crown servant or government contractor is guilty of an offence if without lawful authority he makes a damaging disclosure of any information, document or other article relating to security or intelligence which is or has been in his possession by virtue of his position as such but otherwise than as mentioned in subsection (1) above.”
10.	A “damaging disclosure” is defined in section 1(4) in the following way:
“For the purposes of subsection (3) above a disclosure is damaging if—
(a) it causes damage to the work of, or of any part of, the security and intelligence services; or 
(b) it is of information or a document or other article which is such that its unauthorised disclosure would be likely to cause such damage or which falls within a class or description of information, documents or articles the unauthorised disclosure of which would be likely to have that effect.”
11.	That is supplemented by section 1(9) which provides as follows:
“In this section “security or intelligence” means the work of, or in support of, the security and intelligence services or any part of them, and references to information relating to security or intelligence include references to information held or transmitted by those services or by persons in support of, or of any part of, them.”

Were the proceedings unfair?
12.	The judge was provided in advance of the hearing with the materials the parties intended to use. They included the Commissioner’s skeleton, the redacted evidence (in fact the sworn information supporting the application, which contained no express redactions) and the secret evidence, which we have not seen, but which we assume took the form of a separate sworn statement.  At an early stage in the proceedings the judge told the parties that he had read the materials provided to him, including the secret evidence, having presumably understood from the Commissioner’s skeleton that it was material on which he relied.
13.	At an early stage in the opening, when there was a discussion about the time that might be required for the hearing, Mr. Millar Q.C. for B Sky B said that that might depend on whether B Sky B could see any more of the material before the judge. Following a discussion about whether the hearing could properly take place in private, Mr. Lewis Q.C. for the Commissioner described what he suggested would be a helpful procedure, which involved an initial opening followed by any application for any further disclosure that B Sky B might wish to make. He suggested that for the purpose of considering that application the court should sit in the absence of B Sky B. After that, Mr. Millar would be able to make submissions on the basis of whatever material was available to him.
14.	After Mr. Lewis had opened the application and shown the judge the materials DS Holt gave evidence and confirmed the truth of what he had deposed to in the information. That was accepted as his evidence-in-chief and he left the witness box. Mr. Lewis then asked the judge to sit ex parte to enable him to consider an application in relation to the secret information. Mr. Millar said that that was not how he had understood that matters would proceed. He made it clear that as a matter of principle nothing ought to be withheld from his client and he proceeded to make lengthy submissions explaining why that was so. In the course of those submissions he made the following points:
(a)	that unless his client obtained disclosure of the evidence against it and proper particulars of the case being made by the Commissioner, it could not tell whether the application for a production order was well-founded;
(b)	that it was important to know, when assessing the evidence, whether it was being said that there were grounds for suspecting that an offence under section 1(1) of the Act had been committed and that the judge needed to focus on that question if he were looking at the secret evidence in a closed hearing;
(c)	that, insofar as it was said that there were grounds for suspecting that an offence had been committed under section 1(3) of the Act, B Sky B had not been told in what respect it was alleged that the disclosures were said to have been damaging to the security or intelligence services, nor had it been given access to evidence that might support that allegation;
(d)	that the Commissioner was asking the judge to take into account in support of the application evidence not disclosed to B Sky B;
(e)	that the principles recognised by the Court of Appeal in Al Rawi v Security Service [2010] EWCA Civ 482, [2010] 3 W.L.R. 1069 did not permit closed hearings in the absence of statutory authority, which did not exist in the present case;
(f)	that what was being proposed differed from the ordinary PII procedure under which material is either made available to, or withheld from, both parties; and
(g)	that the decision in R (Malik) v Manchester Crown Court [2008] EWHC 1362 (Admin), [2008] 4 All E.R. 403 did not provide support for a closed procedure in this case.
15.	Mr. Lewis submitted in response that the Commissioner was seeking to withhold the secret material on the grounds that it neither assisted B Sky B’s case nor detracted from his own and because its disclosure would be contrary to the public interest. He then asked the judge to hear him ex parte with a view to deciding whether there should be any further disclosure. Judge Paget did so and in the course of that ex parte hearing he heard further evidence from DS Holt in addition to the secret evidence which he had previously read. At the conclusion of the ex parte hearing the judge announced that he would not order any further disclosure and would give the reasons for his decision at a later date.
16.	The judge gave judgment on the application in private on 3rd May 2011. In the course of his judgment he said:
“I heard evidence from Detective Sergeant Patrick Holt, an officer of the Metropolitan Police Counter Terrorism Command. 
	I heard his evidence in two parts. I heard him first inter partes, when he swore that the open or disclosed information which he produced was true to the best of his knowledge and belief. I then heard him ex parte, when he produced his secret or undisclosed information and swore that that too was true to the best of his knowledge and belief.  It is unnecessary to say more about the secret information, save to record that it amplifies in greater detail the information set out in the open information disclosed to B Sky B.”
17.	Later, after considering the competing submissions, including a submission from Mr. Millar that he should allow the evidence which he had heard ex parte to be disclosed to B Sky B so that it could understand the case it had to meet, he said:
“In the end I have reached the conclusion that the evidence I have heard ex parte should not be disclosed and I accept the argument that it does not detract from or assist the arguments put forward by B Sky B.”
18.	Mr. Millar submitted that the procedure adopted by the judge in this case was fundamentally unfair to B Sky B because it involved his receiving in support of the application evidence that had not been made available to it and on which it had therefore had no opportunity to comment. He relied principally on the decision of the Supreme Court in Al Rawi v Security Service [2011] UKSC 34, [2011] 3 W.L.R. 388 (in which judgment was given after the hearing before the judge in the present case) as authority for the proposition that the court has no power at common law to adopt a procedure in which it receives evidence or submissions from one party which are not made available to the other. Mr. Lewis, on the other hand,  submitted that the procedure adopted by the judge in this case was not a closed procedure of the kind considered in Al Rawi but was akin to the procedure routinely adopted in relation to public interest immunity applications. All that the judge had been asked to do was to consider the secret evidence and decide whether it ought to be disclosed. He was not asked to take account of it in support of the application and did not do so. In the absence of any procedural code governing an application of this kind, the course he took was fair to B Sky B and resulted in nothing more than the withholding of immaterial information.
19.	It was common ground that neither the Civil nor the Criminal Procedure Rules contain any provisions governing an application under section 9 and schedule 1 of PACE. Paragraph 7 of schedule 1 requires the hearing to be conducted inter partes, but apart from that the only procedural requirement is that they be conducted in accordance with common law principles of fairness and the requirements of Article 6 of the ECHR. 
20.	In view of what had been said about the secret evidence in the Commissioner’s skeleton it is perhaps not surprising that much use was made of the term “disclosure” in the course of argument, but it was unfortunate because at various stages the distinction between the disclosure of unused material and the provision to both parties of all the evidence placed before the court became blurred. The former potentially engaged the principles of public interest immunity, whereas the latter engaged the principles of natural justice and the common law requirements of fairness that have been considered most recently in Al Rawi. The result is that we were treated to competing submissions about the nature of the exercise on which the judge was asked to embark and his judgment leaves us uncertain whether he was himself clear about it.
21.	Both parties accepted that in order to meet the requirements of common law fairness the Commissioner was obliged, subject to public interest immunity, to disclose any material in his possession which undermined his own case or assisted that of B Sky B. However, if all that had been intended was to ask the judge to rule whether the secret evidence was prima facie disclosable and, if so, whether it should be withheld on the grounds of public interest immunity, the matter should have been handled in a different way. The secret evidence should not have been mentioned in the Commissioner’s skeleton, nor should it have been sent to the judge as part of the materials to be considered on the application. The prosecution should have made an application to the judge ex parte to enable him to make a decision on disclosure. If he had held that it need not, or should not, be disclosed,  it would not have formed part of the evidence at the inter partes hearing and neither side could have made use of it. 
22.	However, that is not what happened. The existence of the secret evidence  and the intention to rely on it in support of the application was made clear in paragraph 3 of the Commissioner’s skeleton argument. It was sent to the judge for him to read in advance of the hearing and he duly read it. That was not fatal, because from time to time judges are asked to put material out of their minds when reaching their decisions and it is accepted that they can and will do so. Nonetheless, the fact remains that the judge was not asked at the outset to consider it from the perspective of disclosure and public interest immunity.
23.	Although some of Mr. Millar’s submissions to the judge were couched in the language of disclosure, it is clear that he was making two central points: first, that his clients needed to know in greater detail the nature of the Commissioner’s case, in particular in relation to sections 1(3) and 1(4) of the Official Secrets Act; and second, that his clients were entitled to see all the evidence on which the Commissioner was relying. Of the two, the latter was in our view the more important.
24.	Mr. Lewis said that in the event the Commissioner did not ask the judge to rely on the secret evidence, but the question is whether it did in fact form part of the evidence in the case.  It was provided to the judge as part of the evidence and no application was made to withdraw it. As far as B Sky B was concerned the Commissioner’s position had not altered. Moreover, in the course of the ex parte proceedings DS Holt gave evidence on oath before the judge verifying what he had said in his secret statement and the judge himself confirmed that he had heard the officer’s evidence in two parts, first inter partes and later ex parte. There can be little doubt, therefore, that the whole of his evidence stood as evidence in the application.
25.	In our view the procedure adopted at the hearing was unlawful. In Al Rawi the Supreme Court was asked to consider whether it was open to the courts to adopt in a civil claim for damages a closed procedure of the kind used in certain kinds of proceedings where considerations of national security preclude the deployment of highly sensitive material in open court. Their Lordships held that a closed procedure involves too great a departure from the fundamental requirements of a common law trial for the court to adopt it and that in order to do so statutory authority is required. Having considered the case of R v Davis [2008] A.C. 1128, in which the House of Lords rejected the proposition that the court could allow witnesses at a criminal trial to give evidence for the prosecution under conditions of anonymity, Lord Dyson, with whom Lord Hope and Lord Kerr agreed, explained the position as follows in paragraph 35:
“ . . . As I have said, the fact that R v Davis was a criminal case is not material. The issues considered were of application to trials generally. It decided that, subject to certain exceptions and statutory qualifications, the right to be confronted by one’s accusers is such a fundamental element of the common law right to a fair trial that the court cannot abrogate it in the exercise of its inherent power. Only Parliament can do that. The closed material procedure excludes a party from the closed part of the trial. He cannot see the witnesses who speak in that part of the trial; nor can he see closed documents; he cannot hear or read the closed evidence or the submissions made in the closed hearing; and finally he cannot see the judge delivering the closed judgment nor can he read it.”
26.	Later he said in paragraph 41:
“ . . . no form of closed material procedure can properly be described as a development of the common law of PII, although there is no objection to the use of special advocates to enhance the PII process: see para 49 below. In many ways, a closed procedure is the very antithesis of a PII procedure. They are fundamentally different from each other. The PII procedure respects the common law principles to which I have referred. If documents are disclosed as a result of the process, they are available to both parties and to the court. If they are not disclosed, they are available neither to the other parties nor to the court. Both parties are entitled to full participation in all aspects of the litigation. There is no unfairness or inequality of arms. The effect of a closed material procedure is that closed documents are only available to the party which possesses them, the other side's special advocate and the court. I have already referred to the limits of the special advocate system.”
27.	Lord Brown agreed that Parliament alone could sanction a closed procedure of the kind under consideration and roundly condemned the proposition that the court could itself do so (see, for example, paragraphs 85 and 87). Lord Kerr explained in his own words why the closed procedure is unsatisfactory. He said in paragraph 93:
“The defendants’ second argument proceeds on the premise that placing before a judge all relevant material is, in every instance, preferable to having to withhold potentially pivotal evidence. This proposition is deceptively attractive—for what, the defendants imply, could be fairer than an independent arbiter having access to all the evidence germane to the dispute between the parties? The central fallacy of the argument, however, lies in the unspoken assumption that, because the judge sees everything, he is bound to be in a better position to reach a fair result. That assumption is misplaced. To be truly valuable, evidence must be capable of withstanding challenge. I go further. Evidence which has been insulated from challenge may positively mislead. It is precisely because of this that the right to know the case that one’s opponent makes and to have the opportunity to challenge it occupies such a central place in the concept of a fair trial. However astute and assiduous the judge, the proposed procedure hands over to one party considerable control over the production of relevant material and the manner in which it is to be presented. The peril that such a procedure presents to the fair trial of contentious litigation is both obvious and undeniable.”
28.	Mr. Lewis did not feel able to concede that the principle recognised by the majority in Al Rawi applied in this case, because the question in that case was whether a closed procedure could be adopted at trial, whereas here, he submitted, we are concerned only with what is essentially a procedural application for an order in aid of a police investigation. In our view, however, there is no material distinction for these purposes between a trial and any other form of contested proceedings. It is a fundamental principle of fairness at common law that a party should have access to the evidence on which the case against him is based and thus an opportunity to comment on it and, if appropriate, challenge it. Moreover, as Mr. Millar pointed out, from B Sky B’s perspective these are independent proceedings by which the Commissioner seeks to obtain access to private property of a sensitive kind. In R (Malik) v Manchester Crown Court it was assumed without argument that a closed procedure could be adopted on the hearing of an application for a production order under the Terrorism Act 2000, but in so far as that case supports the conclusion that a closed procedure may be adopted on an application of the present kind, we consider that it must be regarded as having been overruled by Al Rawi.
29.	It follows that in our view the procedure adopted in this case was unlawful. Mr. Lewis submitted that, since the judge found that the secret evidence “did not detract from or assist the arguments put forward by B Sky B”, viewed overall there was no unfairness and we should exercise our discretion in favour of refusing relief. In our view, however, that misses the point. Here there was a failure to observe a fundamental principle of law bearing directly on the fairness of the proceedings, a matter which the court should be very slow to condone. Moreover, however carefully the judge considered the secret evidence, that can be no substitute for allowing B Sky B to challenge it, for the reasons given by Lord Kerr in Al Rawi.  For this reason we consider that it would not be a proper exercise of our discretion to allow the order to stand and it must therefore be quashed. 
30.	In those circumstances it is unnecessary for us to consider the other grounds on which B Sky B’s application is based, but we think it might be helpful if we were to make some comments on the argument that the judge failed to give adequate reasons for finding that the sworn information provided reasonable grounds for suspecting that an offence under section 1 of the 1989 Act had been committed.
Evidence of an offence under section 1 of the Official Secrets Act 1989
31.	Although couched in terms of a failure to give adequate reasons, the essence of the submission was that the evidence before the judge was not capable of supporting the findings of fact necessary to give the court power to make the order. Since the judge appears to have taken the view that the secret evidence did not add materially to the evidence contained in the information, the argument can be considered by reference to that document.
32.	An order under paragraph 4 of schedule 1 of PACE may be made in respect of excluded or special procedure material only if there are reasonable grounds for believing that such material is available and if, but for section 9(2) of the Act, a search warrant could have been authorised under another statute. In the present case the relevant statutory provision under which a search warrant could have been issued is section 9 of the Official Secrets Act 1911, which allows a magistrate to issue a search warrant if there are reasonable grounds for suspecting that an offence under that Act has been committed. By virtue of section 11(3) of the 1989 Act the provisions of section 9 of the 1911 Act apply to most offences under the 1989 Act. The Commissioner therefore sought to establish reasonable grounds for suspecting that an offence under section 1(1) or 1(3) of the 1989 Act had been committed.
33.	The information sworn in support of the application did not contain any evidence tending to indicate that either suspect was either a member of the security or intelligence services or had been formally notified that he was subject to the provisions of section 1(1) of the Act and, despite requests from B Sky B for clarification, no case to that effect was ever advanced at the hearing. Nor, despite the references in the information to military operations at home and abroad, did the Commissioner seek to establish that there were grounds to suspect an offence under sections 2 (defence) or 3 (international relations). In the end, therefore, it all came down to section 1(3) and the critical questions were whether there were reasonable grounds to suspect that there had been a disclosure of information relating to security or intelligence that might cause damage to the work of, or to any part of, the security or intelligence services, or a disclosure of the kind of information that would be likely to cause such damage or which fell within a class or description of information the unauthorised disclosure of which would be likely to have that effect. 
34.	The only description of the information said to have been disclosed that was given in the sworn information was that it emanated from high-level Cabinet Office Briefing Room A (“COBRA”) meetings, that it concerned military operations overseas and in the UK, that some of it concerned Special Forces operations and military tactics, and that it was likely to have endangered the lives of military personnel. It is difficult to see what basis that provides for suspecting that any disclosures had caused or might in the future cause damage to the security or intelligence services or to their work. In the information DS Holt did not directly address that question, nor was it addressed in the Commissioner’s skeleton argument. Nor, as far as we can see, was it addressed directly by Mr. Lewis in the hearing before the judge. His argument seems to have been that materials discussed in COBRA meetings often contain security and intelligence material, but that in itself is hardly sufficient. The issue was, however, raised by counsel for B Sky B, who submitted that the evidence was not sufficient to support the necessary finding.
35.	When making his ruling the judge said he was satisfied that the unauthorised disclosure of information from high-level COBRA meetings concerning details of military operations overseas and in the United Kingdom would be likely to cause damage, but he did not find that there were grounds for suspecting that information had been disclosed in this case which was likely to cause or to have caused damage to the security or intelligence agencies as such or to their work. It may be that he thought that any information obtained in discussions in COBRA meetings was of a class or description of information, disclosure of which might be damaging to the security or intelligence services or to their work, but he did not say as much and in any event we doubt whether all information emanating from COBRA meetings could properly be said to qualify for that description. In R (Bright) v Central Criminal Court [2001] 1 W.L.R. 662 the court held that in a case of this kind it is necessary for the judge himself to be satisfied that the relevant access conditions have been met, which in this case includes being satisfied of the existence of reasonable grounds for suspecting that an offence has been committed. Given the rather limited content of the sworn information, we do not think that there was sufficient evidence before the judge to enable him to reach that decision.
36.	For the reasons given earlier we are satisfied that the claim succeeds and that the production order must be quashed. In the circumstances there is nothing to be gained by considering the third and fourth grounds relied on by B Sky B.