Crown Court for Northern Ireland Decisions

"The Police and Criminal Evidence Act governs a field in which there are two very obvious public interests. There is, first of all, a public interest in the effective investigation and prosecution of crime. Secondly, there is a public interest in protecting the personal and property rights of citizens against infringement and invasion. There is an obvious tension between these two public interests because crime could be most effectively investigated and prosecuted if the personal and property rights of citizens could be freely overridden and total protection of the personal and property rights of citizens would make investigation and prosecution of many crimes impossible or virtually so.

The 1984 Act seeks to effect a carefully judged balance between these interests and that is why it is a detailed and complex Act. If the scheme intended by Parliament is to be implemented, it is important that the provisions laid down in the Act should be fully and fairly enforced. It would be quite wrong to approach the Act with any preconception as to how these provisions should be operated save in so far as such preconception is derived from the legislation itself.

It is, in my judgment, clear that the courts must try to avoid any interpretation which would distort the parliamentary scheme and so upset the intended balance. In the present field, the primary duty to give effect to the parliamentary scheme rests on circuit judges. It seems plain that they are required to exercise those powers with great care and caution. I would refer to the observation of Lloyd LJ in Maidstone Crown court, ex p. Watt [1988] Crim. L.R. 384 where he said:

"The special procedure under section 9 and Schedule 1 is a serious inroad upon the liberty of the subject. The responsibility for ensuring that procedure is not abused lies with circuit judges. It is of cardinal importance that circuit judges should be scrupulous in discharging that responsibility."

"3. – (1) A constable may, for the purposes of a terrorist investigation, apply to a Circuit Judge for an order under sub-paragraph (2) below in relation to particular material or material of a particular description, being material consisting of or including excluded material or special procedure material.

(2) If on such an application the judge is satisfied that the material consists of or includes such material as is mentioned in sub-paragraph (1) above, that it does not include items subject to legal privilege and that the conditions in sub-paragraph (5) below are fulfilled he may order a person who appears to him to have in his possession, custody or power any of the material to which the application relates, to –

(a) produce it to a constable for him to take away, or

(b) give a constable access to it,

within such period as the order may specify and if the material is not in that person's possession, custody or power (and will not come into his possession, custody or power within that period) to state to the best of his knowledge and belief where it is.

(7) In Northern Ireland the power to make an order under this paragraph shall be exercised by a county court judge.

4. – (1) Provision may be made by Crown Court Rules as to –

(a) the discharge and variation of orders under paragraph 3 above;

and

(b) proceedings relating to such orders.

(2) The following provisions shall have effect pending the coming into force of Crown Court Rules under sub-paragraph (1) above –

(a) an order under paragraph 3 above may be discharged or varied by a Circuit judge on a written application made to the appropriate officer of the Crown Court by any person subject to the order;

(b) unless a Circuit judge otherwise directs on grounds of urgency, the applicant shall, not less than forty-eight hours before making the application, send a copy of it and a notice in writing of the time and place where the application is to be made to the constable on whose application the order to be discharged or varied was made or on any other constable serving in the same police station.

(3) An order of a Circuit judge under paragraph 3 above shall have effect as it is were an order of the Crown Court.

(7) In the application of this paragraph to Northern Ireland for references to a Circuit judge there shall be substituted references to a county court judge and for references to a government department or authorised government department there shall be substituted references to a Northern Ireland department or authorised Northern Ireland department."

Para 5(1) provides

"A constable may apply to a Circuit judge for an order under this paragraph for the purposes of a terrorist investigation."

Para 10 provides

"(1) An order of a Circuit judge under paragraph 5 shall have effect as if it were an order of the Crown Court.

(2) Crown Court Rules may make provision about proceedings relating to an order under paragraph 5.

(3) In particular, the rules may make provision about the variation or discharge of an order."

"18. In the application of this Part to Northern Ireland –

(a) the reference in paragraph 4(a) to section 11 of the Police and Criminal Evidence Act 1984 shall be taken as a reference to Article 13 of the Police and Criminal Evidence (Northern Ireland) Order 1989,

(b) the reference in paragraph 4(b) to section 10 of that Act shall be taken as a reference to Article 12 of that Order,

(c) the reference in paragraph 4(c) to section 14 of that Act shall be taken as a reference to Article 16 of that Order,

(d) the references in paragraph 9(1) and (2) to 'government department' shall be taken as including references to an authorised Northern Ireland department for the purposes of the Crown Proceedings Act 1947,

(e) the reference in paragraph 10(2) to "Crown Court Rules" shall be taken as a reference to county court rules,

(f) the reference in paragraph 17 to sections 21 and 22 of the Police and Criminal Evidence Act 1984 shall be taken as a reference to Articles 23 and 24 of the Police and Criminal Evidence (Northern Ireland) Order 1989, and

(g) references to "a Circuit judge" shall be taken as references to a county court judge."

"121 Crown Court judges: Northern Ireland

(1) The Terrorism Act 2000 (c.11) is amended as follows.

(2) In paragraph 18 of Schedule 5 (terrorist investigations:

application to Northern Ireland) –

(a) omit paragraph (e);

(b) in paragraph (g) for "county court judge" substitute

"Crown Court judge".

(3) In paragraph 20 of that Schedule (powers of Secretary of State),

in sub-paragraphs (2) and (3)(a) for "county court judge" substitute "Crown Court judge".

(4) In paragraph 3(c) of Schedule 6 (persons by whom financial information orders may be made) for "county court judge" substitute "Crown Court judge".

"27. – (1) Provision may be made by Act of Adjournal as to –

(a) the recall and variation of orders under paragraph 22; and

(b) proceedings relating to such orders.

(2) The following provisions shall have effect pending the coming into force of an Act of Adjournal under sub-paragraph (1) –

(a) an order under paragraph 22 may be recalled or varied by the sheriff on a written application made to him by any person subject to the order;

(b) unless the sheriff otherwise directs on grounds of urgency, the applicant shall, not less than 48 hours before making the application, send a copy of it and a notice in writing of the time and place where the application is to be made to the procurator fiscal on whose application the order was made."

As the sheriff is the equivalent judicial officer of a Crown Court judge in Northern Ireland for the purposes of applications under para. 5 (by virtue of para. 22(1) of Sch. 5), it is difficult to see why, for example, the BBC could apply to a sheriff for the variation or discharge of an order made in Scotland but could not apply for such relief in Northern Ireland. It cannot be suggested that the problems created by terrorism are different in nature in Scotland than elsewhere in the United Kingdom.

"Natural justice requires that the procedure before any tribunal which is acting judicially shall be fair in all the circumstances, and I would be sorry to see this fundamental general principle degenerate into a series of hard and fast rules. For a long time the courts have, without objection from Parliament, supplemented procedure laid down in legislation where they have found that to be necessary for this purpose. But before this unusual kind of power is exercised it must be clear that the statutory procedure is insufficient to achieve justice and that to require additional steps would not frustrate the apparent purpose of the legislation."

"(2) The sheriff may make the order sought in an application under paragraph 22(1) of Schedule 5 to the Act of 2000 before intimation of the application to the person who appears to him to be in possession of the material to which the application relates."

"While we recognise that the sensitive and secret nature of the information available to the constable making the application may create difficulties, we do not consider that the mere change from an inter partes application to one made ex parte can bear the significance that Mr Clarke seeks to put upon it. In applications under the 1984 Act the information and its source may be sensitive, though we accept that it is more likely to be so in a case under the 1989 Act. There may indeed be occasions when the nature and identity of the source of information and perhaps also the information itself in the case of a terrorist investigation is of such a nature that it is not appropriate to disclose it even to the judge. But, even if it is disclosed to him, it will rarely be appropriate or necessary to disclose the nature and identity of the source of information to the recipient of the order; and it is equally inappropriate to disclose it to counsel and solicitors even on an undertaking of confidentiality. Nevertheless the recipient of the order should be given as much information as he properly can as to the grounds upon which the application is made, either at the time the order is served upon him or, if he decides to make an application to discharge or vary the order, before or at the time of the hearing of the application."

"Questions should not be permitted as to the nature or identity of the source of information. If the nature of the information itself is sensitive in the sense that it may compromise the security of the investigation, the judge should not allow the questions. He should tell the respondent, if it be the case, that he has been given information which satisfies him that the conditions are met but that the information cannot be disclosed."

"One might readily agree that it would be desirable that the applicant and his advisers should be able to see these documents, in order to ascertain if they might help their case in setting aside the order for production. It is envisaged, however, that some information may have to be withheld from the person to whom the order is directed, although he should be told of its existence: see Ex p Salinger [1993] 2 All ER 310 at 320 per Stuart-Smith LJ. The withholding is therefore not a sufficient ground of itself for setting aside the order. Much may depend on the circumstances and the effect on the fairness of the proceedings of the withholding. As Stuart-Smith LJ recognised, the withheld information may well be decisive, but the fact that it is withheld will not without more invalidate the proceedings."

"Right to a fair trial

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of public morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."

"The order requiring the giving of such evidence does not involve the determination of any civil obligations of the witness, however, and the position is not different where, as in the present case, the evidence consists of material which has been filmed rather than an individual's oral testimony as to what he witnessed."

The Commission concluded that the proceedings did not determine the BBC's civil rights or obligations within the meaning of Article 6(1) and I consider that the reasoning in the extract just quoted is equally applicable in the circumstances of the present proceedings. An order made following a para 5 application is analogous to a witness summons in criminal proceedings, the difference being that the material which has to be produced in compliance with the order is to be produced at the investigative rather than the trial stage. I therefore conclude that an ex parte application would not involve a contravention of any Article 6(1) Convention right of the BBC.

"Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

For the purposes of the present application I am prepared to accept that an order to produce the material concerned may involve an interference with the BBC's correspondence. However, Article 8(2) provides that there should be no interference "except such as is in accordance with the law and is necessary in a democratic society" on the grounds specified in Article 8(2). Since I have already held that the BBC has the right to challenge such an order by applying to have it discharged or varied, at which stage the BBC can argue whether it was proper to make the order, I am satisfied that to have an ex parte procedure in the first instance does not involve a contravention of any Article 8 right.

"Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

Whilst I accept that a production order may well impinge upon the right conferred upon the BBC by Article 10 to "impart information and ideas without interference by public authority", this freedom in not unqualified as can be seen from the provisions of Article 10(2). However, it is not possible at this stage of the proceedings for the court to determine whether or not there would actually be an infringement of the BBC's Article 10 rights and I consider that this is an issue which should be determined in the normal way at the ex parte stage and by an application to discharge or vary any order which might be made. At the ex parte stage, and at the hearing of any application to discharge the order, the court is required to consider whether the requirements of paragraph 6 have been satisfied, and this process necessarily involves a consideration of the freedom of the press, both at common law, as in Moloney's case, and now under the European Convention.

"Protection of Property

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."

"12. Freedom of expression

(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.

(2) If the person against whom the application for relief is made ('the respondent') is neither present nor represented, no such relief is to be granted unless the court is satisfied –

(a) that the applicant has taken all practicable steps to notify the respondent;

or

(b) that there are compelling reasons why the respondent should not be notifed.

(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that the publication should not be allowed.

(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to –

(a) the extent to which –

(i) the material has, or is about to, become available to the public; or

(ii) it is, or would be, in the public interest for the material to be published;

(b) any relevant privacy code.

(5) In this section –

'court includes a tribunal; and

'relief' includes any remedy or order (other than in criminal proceedings).

"In this Act "terrorist investigation" means an investigation of –

(a) the commission, preparation or investigation of acts of terrorism,

(b) an act which appears to have been done for the purposes of terrorism,

(c) the resources of a prescribed organisation,

(d) the possibility of making an order under section 3(3), or

(e) the commission, preparation or investigation of an offence under this Act."

"Terrorism" is defined in S.1 of the 2000 Act and I am entirely satisfied that an application under para 5 in an application in relation to "criminal proceedings" within the meaning of S.12(5) of the Human Rights Act. It is an application for an order to assist in the investigation of criminal offences, just as a search warrant under para 11 of Sch 5 of the 2000 Act is plainly an order in criminal proceedings. I am therefore satisfied that to hear an application ex parte would not contravene the provisions of S.12 of the Human Rights Act.

"I would only add this. Even though an accused person such as the applicant has no statutory right to be given notice or to be heard, it may sometimes be that in a situation of this kind the judge, to whom application is made, may think it helpful to hear what such a person might wish to say before he decides whether to make an order or not. That would not be an appropriate course where notice to the defendant might impede the process of investigation, but might be appropriate in a case like this where no conduct by the defendant would be at all likely to affect the availability of the bank records. Whether to adopt this course would in any case be very much a matter for the judge's judgment. It would not be something he could be compelled to do but something he might find helpful to do in appropriate circumstances."

"In the circumstances of the present case I was satisfied that it was appropriate to permit Mr Weir to take part in the application and to make submissions for three reasons. First of all, the police had given notice of the intention to make this application to the defendant's solicitors, which would suggest that they recognised that the application was an unusual one. Secondly, by doing so they could be taken as recognising that there was no danger that the defendant could interfere with the material sought and thereby frustrate the progress of the investigation. Thirdly, it was apparent that it would be desirable to hear argument on the merits of the application itself. In order that Mr Weir could fully represent his client's interests, and as there was no suggestion that to do so would in any way impede the investigate, I directed that he be provided with copies of the notice of application, complaint and draft order submitted by the police, and that he be given a copy of D/Inspector Templeton's statement in support of the application, and he was permitted to cross-examine the Inspector when he gave brief evidence to supplement his statement."