Special Procedure Production Orders - How practice has not caught up with the law

Applications for special procedure production orders are some of the most common applications before the Crown Court. Many Crown Courts will hear a few applications in a 9:30am list before trials or case management hearings and each numbered application can contain any number of substantive sub-applications against different institutions.  Most applications for special production orders are not opposed as they are made as against financial or other institutions who will not produce material without such an order and will not oppose the order being sought.

What is clear is that practice and procedure for the making of such applications not caught up with the law in recent times. The law has moved on considerably in the past year with two significant authorities, from the Supreme Court and the Divisional Court, tightening up the procedure and clarifying the obligations upon both the prosecution applicant and the Court when making and considering such applications.

Special procedure production orders are made under s9 and schedule 1 of PACE 1984.  A judge may issue an order under Schedule 1 of PACE 1984 requiring the production of special procedure material if he is satisfied that the documents are likely to be relevant evidence or of substantial value to an investigation into an offence.

The definition of Special Procedure Material can be found within section 14 of PACE 1984. It includes:

material acquired or created in the course of any trade, business, profession or other occupation for the purpose of any paid or unpaid office which is held:

-          subject an express or implied undertaking to hold it in confidence, or

-          subject to a restriction or obligation such as those mentioned in section 11 (2)(b) for example a legislative obligation of secrecy.

journalistic material that is not excluded material under section 11.

Special procedure does not include material that is subject to legal professional privilege or excluded material, excluded material is however dealt with in schedule 1 of PACE.

An application for a s9 and Schedule 1 warrant is subject to a ‘very vigorous procedure’ as outlined in R (on the application of S and others) v Chief Constable of the British Transport Police and another [2014] 1 All ER 268. In the course of judgement the Court noted that the information in support of the application must be drafted ‘with scrupulous care’ and must contain ‘all relevant matters’. The British Transport Police authority goes on to explain the various requirements placed upon the Crown by schedule 1 of PACE and the manner in which they must be fulfilled when applying for a s9 order.  The requirements are as follows:

The first set of access conditions is fulfilled if—

(a)there are reasonable grounds for believing—

(i)that an indictable offencehas been committed;

(ii)that there is material which consists of special procedure material or includes special procedure material and does not also include excluded material on premises specified in the application 

(iii)that the material is likely to be of substantial value (whether by itself or together with other material) to the investigation in connection with which the application is made; and

(iv)that the material is likely to be relevant evidence;

(b)other methods of obtaining the material—

(i)have been tried without success; or

(ii)have not been tried because it appeared that they were bound to fail; and

(c)it is in the public interest, having regard—

(i)to the benefit likely to accrue to the investigation if the material is obtained; and

(ii)to the circumstances under which the person in possession of the material holds it,

that the material should be produced or that access to it should be given.

The second set of access conditions is fulfilled if—

(a)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 (including all such premises on which there are reasonable grounds for believing that there is such material as it is reasonably practicable so to specify);

(b)but for section 9(2) above a search of such premises for that material could have been authorised by the issue of a warrant to a constable under an enactment other than this Schedule; and

(c)the issue of such a warrant would have been appropriate.

Crucial to the application itself is the information in support- as stated in British Transport Police the information must be as full as possible and must specifically meet all of the statutory criteria outlined above. For example it is not enough for the information to say that there are reasonable grounds for belief- it must go further and say what those reasonable grounds are and upon what evidence they are based.

In a further development if there is any supporting evidence to the application that has not been supplied on the face of the information this cannot be cannot be given orally by the applicant (as has been the tradition) but must be contained within a written further information or witness statement so that the party responding knows exactly what is to be responded to.

One crucial element to the law is the requirement for disclosure, I  have lost count of the number of times that investigating authorities have refused to hand over Informations in advance of the hearing for an order. This is not legitimate and refusal to hand over relevant information with adequate time for the Respondent to consider it can give grounds for challenge by way of Judicial Review.

This is due to the fact that the order sought by the Crown is applied for under paragraph 1 of schedule 1 of PACE 1984; paragraph 1 relates to the ultimate power of the Court to make an order under paragraph 4 of schedule 1. It is a requirement for an application for an order under paragraph 4 to be made inter partes- paragraph 7 of schedule 1 PACE states ‘an application for an order under paragraph 4 above shall be made inter partes’ as the hearing is inter partes disclosure duties arise.

The question of the duty of disclosure upon the Crown in such a situation was considered by the Supreme Court in Regina (British Sky Broadcasting Ltd.) v Central Criminal Court (B and another intervening) [2014] AC 885). Toulson LJ delivering the judgement of the Court found that an application under  paragraph 4 is to be made inter partes due to the statutory application of paragraph 7.  This gives rise to a lis between the applicant and the person against whom the application is made. Therefore the Court found that the proceedings are deemed to be subject to the general common law principle of fairness which requires that a party should have access to the evidence upon which the case against him is based and should be given a fair opportunity to respond to it.

Following the logic of the ruling there is a duty upon the Crown to provide the Respondent with a copy of the evidence upon which the application is based and the Respondent should be given a fair opportunity to respond to it.

The combination of British Transport Police and British Sky Broadcasting means that an application for a warrant under schedule 1 is now a tight, evidence based procedure which is to be placed under considerable judicial scrutiny and not just ‘given the nod’.

With this in mind it is worth noting that British Transport Police stresses that the Court is under a duty to give reasons for its determination, historic criticisms of Circuit Judges have been the very brief time that the Court have spent in coming to a decision on matters that have many points to be decided; brief deliberation and reasons can give rise to challenge on the basis that the application was granted ‘on the nod’.

An interesting piece of dicta from the British Sky Broadcasting decision was the observation of the Court that the prosecution can no longer give redacted informations to the respondents, if the prosecution wish to withhold information from the respondent they must do so via a Public Interest Immunity application, they do not have the right to make a unilateral decision to withhold relevant information.

There are no statutory appeal procedures against the granting of an order once it has been made, even if the order has been made on the basis of misleading or false information. The only course of redress is challenge by way of Judicial Review with the accordant strict time limits that apply.

It is clear from the authorities that the law has moved on considerably over the last year, most applications of this sort are drafted and sought by officers without the guidance of lawyers and can be easily picked apart. It remains to be seen how quickly both the Courts and the investigating authorities adapt and tighten their procedure in light of the recent changes.   

Quentin Hunt is a Barrister Practising at 2 Bedford Row Chambers, please contact Quentin if further information is required about any area touched upon by this article.