was a 2014 judgment of the
Supreme Court of the United Kingdom. The court held that as ''inter partes'' proceedings created a ''lis'' between the parties (per ''Lewes''), equal treatment (per ''Al Rawi'') meant that ''ex parte'' evidence in general could not be adduced.
Facts
Two army officers, B and D had been passing information from the
COBRA committee to
British Sky Broadcasting Ltd (B Sky B) in the person of
Sam Kiley
Sam Kiley (born 1964, Kenya) is a Senior International Correspondent at CNN. Prior to CNN, he was the Foreign Affairs Editor of Sky News. He is a journalist with over twenty years' experience, based at different times of his career in London, Los ...
.
The
Commissioner of the Metropolitan Police
The Commissioner of Police of the Metropolis is the head of London's Metropolitan Police Service. Sir Mark Rowley was appointed to the post on 8 July 2022 after Dame Cressida Dick announced her resignation in February.
The rank of Commissioner ...
(the Commissioner) had made an ''
'' application for a
production order, to the circuit judge. Certain evidence was offered ''
ex parte
In law, ''ex parte'' () is a Latin term meaning literally "from/out of the party/faction of" (name of party/faction, often omitted), thus signifying "on behalf of (name)". An ''ex parte'' decision is one decided by a judge without requiring all ...
'' over the objections of B Sky B. The judge granted the order, and B Sky B applied to the
Administrative Court
An administrative court is a type of court specializing in administrative law, particularly disputes concerning the exercise of public power. Their role is to ascertain that official acts are consistent with the law. Such courts are considered s ...
for a judicial review. The Administrative Court quashed the production order (
011
The following is a list of different international call prefixes that need to be dialled when placing an international telephone call from different countries.
Countries by international prefix
Countries using optional carrier selection code ...
EWHC 3451 (Admin)).
Proceedings against the officers were dropped, but because of the importance of the legal argument, the Commissioner appealed.
Judgment
In the Supreme Court, arguments were heard from the parties to the case.
Lord Toulson, with whom the other members agreed, said that the general power of a magistrate to issue a search warrant on ''ex parte'' application of a police officer, given reasonable belief that an indictable offence had taken place and that there was material likely to be of substantial value to the investigation on the premises, section 14 of the Police and Criminal Evidence Act 1984 mean that journalistic material was classed as "special procedural material" and did not fall under the general power. Application had been made under both the general and the "special material" sets of access conditions, and only the "special material" set was applicable.
Special material, fell under section 9 and Schedule 1, and the application consequently had to be made ''inter partes'' and to a circuit judge.
The issue was whether the court might have regard evidence given by the applicant but not disclosed to the respondent.
The principle in ''Al Rawi'' that, as a general rule, a respondent should have access to evidence on which the case was based applied to criminal and civil trials, did not extend to applications to obtain evidence from a third party whose substantive legal rights were not involved.
However, since the hearing was ''inter partes'' a discrete, substantive legal issue arose. Equal treatment meant that the crown court judge should not have taken into account the ''ex parte'' evidence.
Therefore the Divisional Court was correct to quash the order, and the appeal was dismissed.
Solicitors
Directorate of Legal Services,
Metropolitan Police;
Goodman Derrick LLP
References
UKSCblog* ''Procedure for seeking disclosure of journalistic material'', The Times, 17 March 2014
Supreme Court press summaryOfficial text of the judgment (UKSC website)
{{Supreme Court of the United Kingdom
2014 in case law
2014 in British law
Supreme Court of the United Kingdom cases
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History of the Metropolitan Police