Judgment

Neutral Citation no. [2003] NICC 17	Ref:	2003NICC17

Judgment: approved by the Court for handing down	Delivered:	23/10/2003
(subject to editorial corrections)

IN THE CROWN COURT IN NORTHERN IRELAND

In the matter of an application by Detective Sergeant Anthony Jordan PSNI,

under para. 5,Sch.5 of the Terrorism Act 2000

JUDGMENT OF

HIS HONOUR JUDGE HART QC

RECORDER OF BELFAST

23 OCTOBER 2003

Appearances:Mr David McAllister of counsel, instructed by the Legal Advisor to the PSNI, for the applicant.

Mr McKee of counsel, instructed by C & J Black, solicitors for the BBC.

[1] Following the application made by Detective Constable Morris in which I gave judgment on 22 August 2003, the matter was adjourned to a later date for further argument and evidence. The hearing resumed on 12 September and as Detective Constable Morris was not available the application was made by Detective Sergeant Jordan who lodged a fresh statement in support of his application, together with draft orders. Mr David McAllister of counsel appeared on behalf of Detective Sergeant Jordan in the absence of Mr Ritchie of counsel.

[2] At the outset of the renewed hearing Mr McAllister requested that the hearing should be held in private. Mr McKee on behalf of the BBC accepted that logically the first step in such circumstances should be for the court to hear the grounds put forward by the PSNI in support of this application in the absence of the BBC. In the absence of the BBC I therefore heard evidence from Detective Sergeant Jordan as to why it was suggested that it was necessary that the hearing should be in private. His reasons may be summarised as being that whilst the broadcast to which this application relates was in the public domain, the police investigation would extend to possible terrorist offences by other individuals shown in the broadcast and to other criminal offences in the Lower Shankill area.

[3] I was satisfied that in the particular circumstances of this case that neither of these reasons was a proper reason for conducting the application in private. First of all the information sought is already in the public domain. Secondly, the suggestion that possible terrorist offences may have been committed by other individuals, as well as a more wide ranging and less specific allegation that other criminal offences may have been committed in the Lower Shankill area of Belfast, goes significantly beyond the scope of the investigation as defined in Detective Sergeant Jordan’s statement in support of his application. The material sought is defined in the application as follows.

“12 The material is sought to further the investigation in relation to the offence of membership of a proscribed organisation, namely the Ulster Freedom Fighters (UFF) contrary to Section 11 of the Terrorism Act 2000 and other related terrorist offences.

13 The material sought includes all film, video tapes and sound tapes of Denis Cunningham, whether such material is broadcast or not, which is in the possession, custody or power of the British Broadcasting Corporation and which relates to his appearance on the Panorama programme broadcast on 22 June 2003.”

[4] Whilst para. 12 also refers to “and other related terrorist offences”, nevertheless the general thrust of paras 12 and 13 of the application, and the tenor of the remainder of Sergeant Jordan’s statement in support of the application, is that the “terrorist investigation” which is being pursued relates to the alleged membership of the UFF of Mr Cunningham. It is not defined as extending to other individuals who may be shown on the programme, nor does it extend to encompass a wider and less precisely defined investigation under the general description of other criminal offences in the Lower Shankill area.

[5] The application may be summarised by stating that the Panorama programme entitled “Gangsters At War” contains footage which purports to show that Mr Cunningham, identified elsewhere in the programme as a West Belfast representative of the Ulster Political Research Group (which is alleged to be the political wing of the UDA), was the masked male who sat at a table at a press conference and read aloud a statement beginning with the words “Tuesday 15 January 2002 the Ulster Freedom Fighters”. During the press conference another terrorist organisation, the Red Hand Defenders, was ordered to stand down. In the Panorama programme the presenter stated that voice analysis had been carried out for the BBC comparing the voice of Denis Cunningham with that of the masked person making the statement at the UFF press conference, and that it was highly probable Denis Cunningham was the masked male who made the statement reporting to come from the UFF.

[6] Section 32 of the Terrorism Act 2000 (the 2000 Act) provides.

“In this Act “terrorist investigation” means an investigation of –

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

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

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

(e) the commission, preparation or instigation of an offence under this Act.”

[7] Under para. 6(2) and (3) of the 2000 Act the court has to be satisfied of a number of matters, namely that the order is sought for the purposes of a terrorist investigation; whether the material sought is likely to be of substantial value to a terrorist investigation; and the benefit likely to accrue to a terrorist investigation if the material is obtained. Whilst there may be many applications in which the terrorist offences being investigated gives rise to a wide ranging or general investigation, where the application itself relates to the actions of a named individual then, in my opinion, the court must consider whether the actions of that individual can be said to come within the ambit of section 32. The court is not, in my opinion, entitled to have regard to allegations that the investigation might extend to include other unnamed individuals unless that is in itself the stated purpose of the application and the conduct being investigated can be shown to come within the definition of a terrorist investigation contained in Section 32. This is to apply what is known as the “dominant purpose” test. As Lord Hutton pointed out in R –v- Crown Court, ex p Bowles [1998] 2 AER 193 at page 202h, “it is the test which the law applies when an issue arises as to the purpose or purposes for which a statutory power is exercised or sought to be exercised.” In a somewhat different context Lord Hutton had earlier quoted with approval the following passage stated in Wade & Forsyth on Administrative Law (7^th Edn1994) page 436:

“Sometimes an act may serve two or more purposes, some authorised and some not, and it may be a question whether the public authority may kill two birds with one stone. The general rule is that its action will be lawful provided that the permitted purpose is the true and dominant purpose behind the act, even though some secondary or incidental advantage may be gained for some purpose which is outside the authority’s powers. There is a clear distinction between this situation and its opposite, where the permitted purpose is a mere pretext and a dominant purpose is ultra vires.”

[8] I consider that this test should be applied to any application under the Terrorism Act to ensure that an order is only granted where the true purpose of the application is to further an investigation into a specified offence or offences committed by either an identifiable individual or individuals, or an unidentifiable individual or individuals whose actions can be shown to amount to specific criminal offences within the ambit of Section 32 of the Act.

[9] However, lest some material might emerge during the hearing which had not been anticipated and which might impede the investigation I ruled that the application should continue in chambers and that there should be no report of the proceedings until the conclusion of the hearing. That order is now revoked and this judgment may be reported.

[10] In his written judgment relating to an application by the RUC seeking production of film relating to public disorder on 12 and 13 July 2001 at Ardoyne, Belfast, His Honour Judge Burgess dealt with the question of whether applications under the 2000 Act should be heard in camera.

“Before turning to the questions raised in this application I should record that this matter had been before another judge some weeks before the matter was brought back to myself. On that occasion none of the matters of substance were opened as there appears to have been some argument as to whether the hearing should be in open court or in chambers. To the best of my knowledge no argument was deployed that the court should be “in camera”. When the matter was listed before me I asked for skeleton arguments to be produced in respect of this aspect of the application. In the event this argument was quickly resolved by the agreement of all parties that the matter should be held in open court.

It is the starting point in any proceedings that they be heard in open court unless some statutory provision, a rule of court or the court itself states otherwise. The basis of course is that the public interest is best served by affording the opportunity to the public and the media of full access to the justice system and to be able to report on all proceedings before any court. There are certain exceptions to that basic tenet, where perhaps the public interest is served by not allowing either at a particular point in time or indeed at any time the disclosure of certain matters into the public arena. This is recognised and has been recognised under our own law for centuries. In addition under European Convention of Human Rights restrictions can be placed on the doctrine of open justice where certain conflicting interests are shown to arise. None of those interests arise in respect of these proceedings. There is also nothing within the Act itself that requires, or even indicates, that the hearing under its provision should be heard in chambers.

In my opinion the parties have rightly come to the conclusion that these matters should be in open court and the court itself fully approves of that procedure.”

[11] As will be apparent from the earlier passages in this judgment that I initially heard evidence in private in order to consider whether or not the hearing should continue in chambers or not. In the event it was not necessary to consider whether it should and therefore I did not hear any argument on the issue. Nevertheless, for my part I wish to reserve for further argument when the issue arises the nature and extent of any power which the court may have to conduct a hearing in chambers, whether, as I have held in the earlier judgment, the application is being contested at the first stage or whether at the second stage where the person against whom the order has been made has applied to the court to discharge or vary it.

[12] I have already set out the basis upon which the application is brought and it is common case that as framed the application is brought for the purposes of a terrorist investigation and I am satisfied that the application is within the terms of section 32(b) of the 2000 Act.

[13] Mr McAllister advanced two grounds why the police wish to have access to the material sought. The first was that because this was a criminal matter the best evidence rule applies and therefore it was necessary for the police and any voice expert that they wish to retain to examine the original material on which this broadcast was recorded.

[14] Whilst it is not necessary for the original of a recording or a film to be produced in order that the recording or the film may be admitted in evidence as the primary test is whether the material is relevant, nevertheless the court expects that to be done, and it will be concerned to identify the provenance and history of the recording in the event that the authenticity of the recording or film is questioned. In R –v- Murphy and another [1990] NI at 337-345 Kelly LJ considered the relevant authorities on this issue and at page 343 quoted with approval the following passage from Cross on Evidence.

“At a trial by jury the party relying on a recording or film must satisfy the judge that there is a prima facie case that is it authentic, and it must be sufficiently intelligible to be placed before the jury. The evidence must define and describe the provenance and history of the recording up to the moment of its production in court. There is no need to account for the absence of the original if the copy is shown to be authentic.”

The following passage from Murphy, A Practical Approach to Evidence was also cited with approval.

“Questions of authenticity and originality, on the other hand, are those cases in which there is no question that the evidence tendered is admissible from a legal standpoint, but there is a question whether the piece of evidence tendered is what it purports to be, that it is an original piece of evidence and that it has not been tampered with. These cases concern tangible exhibits, such as photographs and tape recordings. There is no doubt that such evidence may be admitted, but there must be some foundational showing that the actual exhibit proffered is what it is represented to be.”

[15] However, at page 342 Kelly LJ also observed.

“Authenticity, in our view, like most facts, may be proved circumstantially. In the case of a video film, the direct way is to call the cameraman who took it and the court will normally expect him to be called. But if he is not available, he need not be called; other evidence will suffice if it is logically probative that the video was authentic. … In the case of a tape recording the evidence of its authenticity will, in almost all cases, be that it is the original recording made at the time. In the context of tape recordings, the word “original” will invariably be a synonym for “authentic” as we consider it was in the context of the three cases relied upon by Mr Tracy and not “original” in contrast to “secondary”. If the original tape is not available, then the “provenance and history” of the copy will be a necessary requirement to prove authenticity.”

[16] I am therefore satisfied that the police are entitled to seek production of the original film and sound track in order to enable it to be examined and if necessary produced in court as evidence, as that is what the court would expect, and if it were not available then they would have to fall back on copies.

[17] The second ground advanced by Mr McAllister was that the original material may have been edited, and that it may be that there is amongst that material unused tapes of Mr Cunningham speaking which might be beneficial for the police to examine. Were this the only basis for the application I consider that it would fall short of the “substantial value” test contained in paragraph 6(2)(b) of Sch. 5 of the 2000 Act. In the absence of some reason to believe that such material exists it would be a speculative enquiry and so would fall foul of the test propounded in Re Moloney’s Application [2000] NIJB at 207 where the Lord Chief Justice observed in a similar situation.

“Naturally a conscientious investigator will want to follow up every possible avenue by which he might be able to obtain information or indications which could take forward his task of finding and producing evidence against those who committed a serious crime. But in order to satisfy the condition laid down by para 3(5) of Sch 7 to the 1989 Act the police have to show something more than a possibility that the material will be of some use. They must establish that there are reasonable grounds for believing that the material is likely to be of substantial value to the investigation.”

However, so far as the first ground is concerned, Mr McKee candidly accepted that the BBC had to recognise that the material sought is of substantial value given the significance the BBC itself has attributed to the results of the tests preformed by its own voice analyst. I am therefore satisfied that the material sought would be of substantial value to this investigation.

[18] This brings me to the next issue, namely is it in the public interest that the material should be produced. Paragraph 6(3)(a) of sch. 5 states.

“The second condition is that there are reasonable grounds for believing that it is in the public interest that the material should be produced or that access to it should be given having regard –

(a) to the benefit likely to accrue to a terrorist investigation if the material is obtained, and

(b) to the circumstances under which the person concerned has any of the material in his possession, custody or power.”

[19] Counsel were in agreement that when considering this question the court has to perform a balancing exercise. However, Mr McKee argued on behalf of the BBC that there is a distinction between what he termed “straight reporting” and “investigative journalism”, and that were the BBC to be seen to be or perceived to be collecting information for the police then that may place journalists at risk and so in turn discourage investigative journalism, something which he submitted was not in the public interest.

[20] I fully accept that there are considerable risks to journalists from terrorists or other criminals if those terrorists or criminals consider that they have been exposed, and experience has shown in Northern Ireland that the risks are particularly grave. I also recognise that what has been referred to in a number of authorities as the “chilling effect” of orders directed towards the media must be given particular weight. These are both individually and collectively considerations of great weight when the balancing exercise is being carried out. As Lord Nicholls observed in Reynolds –v- Times Newspapers [1999] 4AER at 622E

“… it should be kept in mind that one of the contemporary functions of the media is investigative journalism. This activity, as much as the traditional activities of reporting and commenting is part of the vital role of the press and the media generally.”

[21] Nevertheless, important though these considerations are, the maintenance of the rule of law is also of great importance. The rule of law means that those who may be guilty of serious crimes are brought to justice and that may mean journalists handing over material that is vital to the prosecution, as was directed in R –v- Murphy and Maguire. What the police seek in the present application is the production of material to enable them to unmask the individual identified by the BBC as a member of a terrorist organisation giving a direction to another terrorist group to stand down, in this context “standing down” clearly contains an implied threat of violence if this command were not complied with. In Northern Ireland many terrorist organisations are still in being and committing murder and other serious crimes. As a means of furthering their aims such organisations often emerge into the limelight to extol their supposed cause and to threaten others. As the BBC’s programme seeks to demonstrate, the unmasking of terrorists and bringing them to justice is of importance to the community. In Reynolds –v- Times Newspapers at page 622 Lord Nicholls, in the context of freedom of speech, observed.

“To be justified, any curtailment of freedom of expression must be convincingly established by a compelling countervailing consideration, and the means employed must be proportionate to the end sought to be achieved.”

[22] I am satisfied that the application brought by the police and the material sought is proportionate to the end sought to be achieved and that the balancing exercise which I am required to perform comes down in favour of granting the application. I am satisfied that in view of the nature of the investigation and the importance of the material sought to that investigation it is in the public interest that the material sought be produced and I grant the application.

[23] Mr McKee raised two issues as to the form of the order itself. The first was that it should record that the police return all material produced on foot of the order at the conclusion of their enquiry. This is a proper limitation and the order will include a term to that effect. The second application was in relation to the question of costs. I raised the apparent absence of a power under the 2000 Act to make any order as to costs but I do not need to address that matter further in view of Mr McAllister’s acceptance on behalf of his client that what he referred to as the “extraction” costs will be met.

[24] The order will therefore be in the form annexed to this judgment.

Terrorism Act 2000

Schedule 5, Paragraph 5

ORDER

IN THE CROWN COURT IN NORTHERN IRELAND1

In the County Court Division of Belfast

WHERAS it appears from the application on Oath of Anthony Jordan, Constable of the Police Service of Northern Ireland, that journalistic material and other material in respect of the broadcast by the BBC of 22 June 2003 on Panorama entitled “Gangsters At War”, namely all film, video tapes and sound tapes of Denis Cunningham, whether such material was broadcast or not, which is in the possession, custody or power of the British Broadcasting Corporation and which relates to his appearance on the Panorama programme broadcast on 22 June 2003, whether whose records are in written form or are kept on microfilm, magnetic tape or any other form of mechanical or electronic data retrieval mechanism, or which may be expected to come into existence or become available to the BBC in the period of twenty eight days beginning with the date of this order.

AND WHEREAS I am satisfied as to the matters specified in Schedule 5, paragraph 5 of the said Act and that this material consists of or includes such material as mentioned in sub-paragraph (2) of paragraph 5 of Schedule 5 and that the access conditions specified in paragraph 6 of Schedule 5 are fulfilled in relation thereto.

I HEREBY ORDER, in exercise of the powers conferred on me by Schedule 5 paragraph 5 of the said Act;

(1) the BBC to produce the said material to a constable for him to take away not less than seven days after the day of service upon them of this Order; and

(2) that the applicant return to the respondent any material delivered to him pursuant to this order as soon as reasonably practicable after the conclusion of the investigation or criminal proceedings as the case may be, or as soon as practicable after it is apparent to the applicant that this material or any significant part of it will be of no value to the investigation; and

(3) that the material is only used for the purposes of the applicant’s terrorist investigation and any resulting criminal proceedings.

This Order is directed to:

Andrew Colman

British Broadcasting Co-operation, Broadcasting House, Ormeau Avenue, Belfast BT2 8HD

Dated this day of October 2003

____________________________________________

Crown Court Judge for the said County Court Division

NOTES: Where the material consists of information contained in computer the material shall be produced in a form which it can be taken away and which it is visible and legible. [Terrorism Act 2000, Schedule 5, Paragraph 5.]