Global media continues to be at the centre of the controversial debate between the competing interests of national security and freedom of information. The Minister of State Oliver Letwin's Deregulation Bill 2013-214 (the "Bill") has been lauded as the "end of red tape" marking efforts by the Government to streamline services and cut down on bureaucracy. However, there are suggestions that the Bill poses a serious threat to freedom of information through the erosion of safeguards for journalistic material when requested by the police in connection with criminal offences . If the Bill comes into force the ability of the press to investigate and uncover details of matters involving crimes within the public interest could be severely hampered.

Current legislative framework

The protection of journalistic sources is widely recognised as a fundamental condition for freedom of the press. Without it, sources might be deterred from informing the press about matters in the public interest. Under the existing legislative framework a "production order" may be made against a journalist to produce material which is required as part of any investigation into a serious criminal offence. However, the current position confers a certain amount of protection on journalists (and others who are the subject of such an application) by statute, under the Police and Criminal Evidence Act 1984 ("PACE").

Schedule 1 of PACE ensures that any application for a production order to obtain journalistic material is made "inter partes" . This means that whilst the person required to produce documentation may be given notice of the application against him (there is no express requirement to do so), the court must nevertheless convene a hearing for both parties to attend. Thus journalists have the opportunity in open court to respond to any arguments made in favour of a production order and can attempt to protect their material from disclosure.

However, the Bill now proposes to change this.

Changes proposed by the Bill

Clause 47 of the Bill proposes to make two changes to the current application process for a production order under Schedule 1 of PACE. It proposes to:

  • allow the Criminal Procedure Rules to govern applications made under Schedule 1 . The Criminal Procedure Rules are rules of procedure prepared by the Criminal Procedure Rules Committee (an independent committee established for this purpose) (the "Committee"); and
  • remove provisions in Schedule 1 relating to the procedure for obtaining a production order, including the requirement for an "inter partes" hearing .

Unsurprisingly these proposals have been met with some opposition by media groups. These groups argue that the hard won freedom of the press should not be placed beyond Parliamentary scrutiny and any rules which may potentially erode fundamental free speech protection should derive authority from statute and not from delegated rules. However, the Committee's rule-making powers are not limitless as any proposed rules must be approved by both the Lord Chancellor and Parliament.

Furthermore, the wholesale removal of the procedural protections conferred by Schedule 1, in particular, the requirement for an open court hearing and its replacement with an as yet undefined and more easily amended process is concerning. In the absence of an open court hearing, journalists contend that limitations of the reporting power of the press may be carried out in silent court rooms without public knowledge. The fear is that without present and vocal opposition to an application for a production order, the court may be more easily persuaded to allow the disclosure of journalistic material.

Potential impact of the Bill

Parliament's stated intention behind placing production orders within the scope of the Criminal Procedure Rules was to allow simpler, more functional procedures to apply to an application for a production order and for rules which strike the right balance between the importance of investigating serious crime and the rights and duties of people in possession of information that may assist any investigation. For example, it is proposed that holders of information may waive the right to attend a court hearing of an investigator's application for a production order, thus allowing the matter to be dealt with expeditiously and with minimal cost.

Ostensibly aware of the threat to journalistic freedom, the Committee has put forward proposed rules (the "Draft Rules") which provide for a special provision for journalists ensuring that, in any application for a production order, journalists must always be provided with advance notice in addition to a court hearing.

Undoubtedly, the risk remains that the Draft Rules may in the future be subject to review and change and journalistic freedom may come under threat in light of increasingly cited "national security concerns." Certainly, until the final form Draft Rules are presented and implemented, no concrete assessment can be made of the impact on journalistic freedom. However, at the present time it appears that both the Government and the Committee are alive to the potential dangers of the Bill's enactment and are currently making efforts to ensure that the freedom of the press remains relatively secure.

Consultation on the Bill

It appears that, for now at least, media outlets' and individual journalists' concerns over the Bill have been noted by the Government. The Government ran a consultation on the proposed amendment to Clause 47 of the Bill to exclude journalistic material from the Criminal Procedure Rules. This Consultation closed on 11 April 2014 and the Government is currently considering the responses.