In my recent Judicial Review challenge the High Court ruled that in the event that the PSNI had corporate knowledge that a person may be in possession of journalistic material, then the enhanced protections apply- even if the police are not seeking journalistic material- and as such they would be precluded from procuring standard warrants under Article 10 of the Police and Criminal Evidence Order 1989 (PACE).
This judgement meant that regardless of whether the alleged offence being investigated related to journalistic material or not, the PSNI would still have to go through the more rigorous procedure of applying to a County Court judge in order to obtain a search warrant. This judgement, the significance of which was denied by the PSNI at the time, broadened the scope of protection of journalistic material and set a significant precedent.
On Friday the PSNI Chief Constable lodged an appeal, claiming that the precedent set by the judgement raised a matter of public importance and as such his legal representatives submitted a question to the United Kingdom Supreme Court.
The Chief Constable’s application (below) if successful would mean that PSNI could seize journalistic material- which falls under ‘excluded and special procedure material’- under the pretence of investigating any offence and the only remedy for the subject of the seizure would be a ‘seize and sift’ procedure whereby PSNI would wade through all seized items, themselves assessing what is journalistic material and what isn't.
This was confirmed by affidavit evidence provided by the PSNI during my High Court case; the officer claimed it wasn’t practical to have any independent assessment of seized material, claiming that it was for investigators to decide what may be covered by journalistic privilege.
The danger of this, especially for all those who may investigate police corruption, is obvious. The police could seize all the journalistic material, wade through it for intelligence purposes and then themselves - without any independent scrutiny - decide what they feel deserves journalistic protection, and what does not.
The PSNI attempt to narrow the protections for journalistic material comes only weeks after the Chief Constable lost another High Court challenged brought by two journalists. It was his second defeat in as many weeks after also losing the challenge I brought earlier in May.
I have alerted the National Union of Journalists to this application by the Chief Constable, which could affect journalists right across the United Kingdom given the Supreme Court decision will be binding.
There may be large sections of the NUJ that despise me, which causes little more than light amusement, but if they look past the person and take a quick look at what is at stake they may realise that the PSNI Chief Constable is launching a full frontal assault on the statutory legal protections for journalistic material.
This assault isn’t a minor little scuffle in a lower court - he is going to the United Kingdom Supreme Court.
The full text of the question the Chief Constable is seeking to be adjudicated upon by the UKSC is as follows:
Is it unlawful to seek a warrant pursuant to Article 10 of the Police and Criminal Evidence (Northern Ireland) Order 1989 in circumstances where a constable does not seek access to special procedure and/or excluded material but where there is a corporate knowledge of a realistic possibility that the materials on the premises may contain special procedure and/or excluded material given the facility for searching and sifting provided by sections 50 and 51 of the Criminal Justice and Police Act 2001 and the statutory obligation to return excluded material under section 55 of the 2001 Act?
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