In a previous blog, see here, the initial injunction application restraining the BBC from publishing the identity of a well-known individual accused of serious sexual offences before he was charged.
A part of the initial injunction application was heard in private and there were restrictions put in place preventing access to the witness evidence on the Court file. Notwithstanding the restrictions in place on the Court file, the Civil Court rules provide that a witness statement exchanged in civil proceedings cannot be used for any purpose other than the Court proceedings in which they are served unless:
- The witness consents in writing to the alternate use;
- The Court gives permission for the alternate use; or
- The witness statement has been put in evidence in a hearing held in public.
The Claimant wished to make use of the witness statement deployed by the journalist at the BBC for the purpose of defending the injunction application initially pursued by the Claimant for the purposes of making submissions to the Police and the CPS with a view to deterring a decision to charge him for the offences that he is accused of.
As the initial hearing was heard in private, the third of the criteria set out above does not apply. The BBC was consulted and the journalist refused consent. The Claimant was therefore left with no alternative but to make a Court application for permission to rely upon the said document.
In dismissing the Claimant’s application and therefore refusing permission to rely upon the witness statement for a collateral purpose, Mrs Justice Collins Rice summarised her findings as follows:
“58. The problem with the Claimant’s application in these circumstances is timing, or prematurity. I cannot proceed on the basis that the police/CPS might act unfairly. I have no evidential basis which could possibly support that premise. Nor can I proceed, for the same reason, on the basis that their current timetable for progressing this issue is otherwise than what it properly needs to be. The Claimant’s opportunity to seek to make representations on the basis of the June WS…properly comes after the criminal procedure relating to the June WS has taken its course, and the interests of the criminal law enforcement agencies in having it for their own purposes have been determined.
59. The Claimant’s application is not, on a proper analysis, simply about the removal of a barrier to making representations in the criminal proceedings, that barrier having been imposed in his own interests in the first place. It also necessarily touches on the obtaining by legal compulsion, and use, by the agencies of law enforcement, of the June WS, against the wishes of the journalist who made it, and in circumstances in which journalistic objections, which have prima facie substance, have been raised.
That is a set of circumstances for which Parliament has specifically provided in the PACE production order regime. That is a regime with which the agencies have said they now intend to engage (unless, it may be inferred, they decide for other reasons not to charge the Claimant). That is also a regime which builds in careful protections not only for journalism but also for suspects, complainants and potential witnesses, and in which the fair conduct of continuing and future criminal proceedings is of the essence.
I have been given no good reason to determine the present application in the Claimant’s favour now, while that process remains active. On the contrary, it is plainly in the interests of justice for the criminal processes to continue to take their course without interference. That, as I have already said, was the central pillar and purpose of the decision I took last June, and it should be no surprise that it remains front and centre of this decision.”
Comment
This judgment is a stark reminder that permission will not be given to rely upon witness statements for a collateral purpose without very exceptional circumstances and sufficient evidence being provided in support of the application to persuade the presiding judge that the reasons given are entirely sustainable.
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