WFZ v The British Broadcasting Corporation EWHC 376 (KB)
The case of WFZ v The British Broadcasting Corporation (BBC) concerned the claimant, WFZ, who sought permanent injunctive relief against the defendant to prevent the publication of a report that would identify him as the subject of active criminal proceedings. The claimant argued that such publication would constitute misuse of private information, contempt of court, and a breach of his Article 6 rights under the European Convention on Human Rights (ECHR) to a fair criminal trial.
The claimant, WFZ, was arrested in 2022 on suspicion of serious sexual offences following allegations made by multiple complainants. While in police custody, he faced further allegations and was subsequently bailed. The police later confirmed they were taking no further action in relation to one of the allegations. The claimant was subsequently interviewed under caution on suspicion of committing a sexual offence against a third complainant.
Meanwhile, a BBC investigation team had been conducting a news investigation, focusing on allegations of sexual and relationship abuse within the sector in which WFZ worked. The BBC intended to publish a report naming WFZ, which prompted his application for an interim injunction to restrain the publication.
The use of witness statements for purposes other than those for which they were made is outlined in Civil Procedure Rule 32.12. This rule provides that a witness statement may only be used for the purpose of the proceedings in which it is served, except in certain circumstances. These exceptions include when the witness gives written consent for another use, when the court gives permission for another use, or when the witness statement has been put in evidence at a public hearing.
In this case, the BBC witness who made the relevant statement (the journalist who investigated the story and prepared the report originally intended for publication) did not consent to the claimant’s proposed use. The statement was put in evidence at the hearing of the claimant’s application for interim relief, but that hearing was not held in public. The statement itself is protected by restrictions on access to it on the court file. Therefore, the claimant applied under CPR 32.12(2)(b) for permission for some other use.
The Court’s power to give permission is discretionary. The basis on which that discretion should be exercised was a matter of legal dispute between the parties, as was its application to the facts of this case.
The Application
The claimant applied for permission to use the witness statement to make representations to the police and the Crown Prosecution Service (CPS) in connection with the ongoing criminal investigation. The defendant opposed this application, arguing that the witness statement contained journalistic material protected under the Police and Criminal Evidence Act 1984 (PACE) and should not be disclosed without a court order.
The claimant’s primary submissions were presented by the claimant’s counsel, who argued that the claimant had the burden of establishing that permission should be given and that he had to show a good reason to depart from the default rule that a witness statement may be used only for the purpose of the proceedings in which it is served. The claimant’s counsel accepted that there was little direct guidance available from the authorities on the exercise of this discretion and suggested that analogy with the approach adopted to applications for permission to use disclosed documents under CPR 31.22(1)(b) might be appropriate.
The claimant’s counsel argued that the key consideration in the protection of disclosed material was that the provider had been under compulsion of law to disclose the material in the first place, in order for the litigation to be fair. He contended that this consideration was not relevant in the present case, as the defendant was under no compulsion to provide the witness statement or to include its contents. The claimant’s counsel also argued that the purpose of the witness statement in the litigation was fully discharged, as it was served for the purpose of resisting the interlocutory injunction application and not as advance notice of trial evidence.
The claimant’s counsel submitted that the only reason the claimant needed permission to make collateral use of the witness statement was that the hearing was held in private. He argued that this was adventitious and that the purpose of the privacy ruling was to protect the claimant’s own interests and enable a fair hearing of the injunction application. The claimant’s counsel contended that the claimant’s interests were stronger than those of the defendant and urged the court to consider the claimant’s Article 10 ECHR rights to impart information and his Article 6 rights to fair criminal proceedings.
The claimant’s counsel drew attention to the claimant’s solicitor’s evidence that it was necessary to show the witness statement to the police and CPS in order to fully exercise his right to make pre-charge representations. He argued that the claimant’s application was not simply a request for permission for the further use of material lawfully in his hands, but also a request for the exercise of legal compulsion over unpublished journalism.
The defendant’s counsel argued that the claimant’s application was highly unusual, as it sought to use CPR 32.12(2)(b) to put journalistic material into the hands of the police and CPS, which they would otherwise only be able to obtain through the PACE regime. The defendant contended that the witness statement contained material acquired or created for the purposes of journalism and was therefore protected as “special procedure material” under PACE.
The defendant’s counsel emphasised that the PACE regime provided a specific legal framework for obtaining journalistic material, which included stringent conditions to protect the public interest in maintaining the confidentiality of journalistic sources and material. He argued that allowing the claimant’s application would undermine the protections afforded to journalistic material and set a dangerous precedent for circumventing the PACE regime.
The defendant also argued that the claimant’s application was premature, as the police and CPS had already indicated their intention to apply for a production order under PACE to obtain the witness statement. The defendant’s counsel contended that the appropriate course of action was for the criminal law enforcement agencies to pursue their application under PACE, rather than for the court to grant the claimant’s application under CPR 32.12(2)(b).
The defendant’s counsel further argued that the claimant’s application failed to demonstrate a good reason for departing from the default rule that a witness statement may only be used for the purpose of the proceedings in which it is served. He emphasised the importance of protecting journalistic material and the public interest in maintaining the integrity of journalistic investigations.
Judge’s Decision and Reasoning
Mrs Justice Collins Rice considered the application and the arguments presented by both parties. She acknowledged the claimant’s right to make representations to the CPS but emphasised the importance of protecting journalistic material. The judge noted that the police and CPS had indicated their intention to apply for a production order under PACE to obtain the witness statement from the defendant. She concluded that it was premature to grant the claimant’s application and that the appropriate course of action was for the criminal law enforcement agencies to pursue their application under PACE.
The judge highlighted the balance between the claimant’s interests in making representations and the public interest in protecting journalistic material. She emphasised that the criminal investigation should proceed without interference and that the claimant’s opportunity to make representations would arise once the criminal procedure had taken its course.
Mrs Justice Collins Rice’s reasoning was detailed and multifaceted. She began by considering the nature of the witness statement in question and the collateral purpose for which the claimant wanted to use it. The judge noted that the witness statement was created for the purposes of litigation, specifically for defending an interlocutory application in civil proceedings. However, she acknowledged that the content of the witness statement included material acquired and created for the purposes of journalism.
The judge recognised that the defendant’s opposition to the claimant’s application was based on the protection of journalistic material. She agreed with the defendant’s characterisation of the content of the witness statement, noting that it contained information about the journalist’s investigative methods, relationship with sources, and editorial analysis. Mrs Justice Collins Rice emphasised that the protection of journalistic material was a matter of public interest and that the police and CPS had indicated their intention to apply for a production order under PACE to obtain the witness statement.
The judge also considered the claimant’s proposed purpose of making representations to the police and CPS. She acknowledged the claimant’s right to participate fully in making pre-charge representations that might assist him, consistent with the opportunity provided in the Code for Crown Prosecutors. However, she emphasised that the claimant’s application was premature and that the appropriate course of action was for the criminal law enforcement agencies to pursue their application under PACE.
Mrs Justice Collins Rice concluded that the claimant had not discharged his burden of showing a good reason for the court to make the order he sought. She emphasised that the criminal investigation should proceed without interference and that the claimant’s opportunity to make representations would arise once the criminal procedure had taken its course. The judge highlighted the importance of protecting journalistic material and the public interest in maintaining the integrity of journalistic investigations.
Conclusion
The judgment is useful in exploring the circumstances under which a witness statement can be deemed journalistic material, stressing the difference between the civil framework of CPR 32.12 and the criminal framework of PACE. Currently, non-parties need court permission to access witness statements, but this might change with the ongoing consultation to revise CPR Part 5.4C, which could make witness statements accessible to non-parties without requiring court approval.