UKSC 17
On appeal from:  EWHC 3451 (Admin)
R (on the application of British Sky Broadcasting Limited) (Respondent) v The Commissioner of Police of the Metropolis (Appellant)
James Lewis QC
(Instructed by Metropolitan Police Directorate of Legal Services)
Gavin Millar QC
(Instructed by Goodman Derrick LLP)
(Instructed by McKay Law Solicitors and Advocates)
|Intervener (Media Lawyers Association)
(Instructed by Media Lawyers Association)
LORD TOULSON (with whom Lady Hale, Lord Kerr, Lord Reed and Lord Hughes agree)
The statutory scheme in more detail
"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,
not later than the end of the period of 7 days from the date of the order or the end of such longer period as the order may specify".
"that an indictable offence has been committed;
that there is special procedure material on the premises specified in the application or on premises occupied or controlled by a person specified in the application;
that the material is likely to be of substantial value to the investigation in connection with which the application is made;
and that the material is likely to be relevant evidence."
The judge must also be satisfied that a production order is in the public interest, having regard to the benefit likely to accrue to the investigation if the material is obtained and to the circumstances under which the person in possession of the material holds it.
"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…..;
but for section 9(2) a search of such premises could have been authorised by the issue of a warrant to a constable under an enactment other than the schedule; and
the issue of such a warrant would have been appropriate."
The production order
"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."
He added that the evidence which he heard ex parte did "not detract from or assist the arguments put forward by B Sky B".
"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."
Citing R v Leicester Crown Court ex parte DPP  1 WLR 1371, Bingham LJ referred (at page 67) to a section 9 application as "a lis between the party applying and the party against whom the application was made".