WFZ v The British Broadcasting Corporation [2024] EWHC 376 (KB)
If an individual provides a witness statement for a party in civil proceedings, can a different party to those proceedings use that statement in a parallel criminal investigation? In WFZ v The British Broadcasting Corporation [2024] EWHC 376 (KB), the High Court has said… “it depends”.
In this case, WFZ sought permission to use a witness statement prepared by a journalist for the BBC, the defendant in civil proceedings in which he is the claimant, for the collateral purpose of making representations to the Police/CPS in a parallel criminal investigation. The High Court denied WFZ’s application because the Police/CPS had already expressed its intention to obtain the witness statement via the Police and Criminal Evidence Act 1984 (“PACE”). Therefore, there was not a “good reason” to displace the default rule that a witness statement may be used only for the purpose of the proceedings in which it was served.
This decision provides a useful discussion on the intersection between Civil Procedure Rules (“CPR”) rule 32.12, the similar rule concerning collateral use of disclosed documents under CPR rule 31.22, and the PACE regime.
Background
WFZ is a high-profile public figure. In 2022, he was arrested on suspicion of serious sexual offending against multiple complainants. During this period, the BBC had been conducting a news investigation with a view to publish an exposé report. As part of this investigation, a BBC journalist had spoken with several individuals, including the complainants.
On 5 June 2023, the BBC wrote a letter to WFZ outlining the complainants’ allegations and informing WFZ that the exposé would name him. WFZ promptly sought interim injunctive relief restraining publication of his identity pending the hearing of his claim for final relief. In its opposition to WFZ’s application, the BBC journalist provided a witness statement dated 9 June 2023 (“the Witness Statement”). The Witness Statement contained information about how the journalist became aware of the allegations made against WFZ through discussions with the complainants.
By August 2023, charging decisions had still not been made. On 17 August 2023, WFZ informed the BBC that he intended to use the Witness Statement in representations to the Police and/or CPS. The BBC advised that it did not provide consent for the Witness Statement to be used for this purpose.
The Police contacted the BBC in September 2023 and requested that it disclose material gathered during its investigation, including the Witness Statement. The BBC refused, relying on its editorial guidelines to decline to released “untransmitted journalistic material” without a court order. On 3 November 2023, the Police confirmed that it intended to obtain a production order pursuant to Schedule 1 to PACE for this material, but did not provide a timeline for doing so.
WFZ’s application for permission for collateral use
WFZ applied to the High Court for permission to give the Witness Statement to the police/CPS. The default rule – outlined in CPR 32.12(1) – is that a witness statement may be used only for the purpose of the proceedings in which it was served. However, CPR 32.12(2) provides three exceptions:
- the witness gives consent to in writing to some other use of it;
- the court gives permission for some other use; or
- the witness statement has been put in evidence at a hearing held in public.
Neither (a) or (c) applied. The BBC did not provide consent and WFZ’s claim was heard in a private hearing. Therefore, WFZ requested that the High Court exercise its discretion to give permission under CPR 32.12(2)(b).
There is little direct guidance on the exercise of this discretion in the context of witness statements. The authorities that do exist encourage an analogy with the approach adopted to applications for permission to use disclosed documents under CPR 31.22(1)(b) (see: Rawlinson and Hunter Trustees SA v Serious Fraud Office [2015] EWHC (Comm)). However, WFZ argued this analogy should be “treated circumspectly” and not applied without “careful consideration” of the underlying public policy (at [23]).
In this case, WFZ said that – unlike an application to use disclosed documents –the BBC was not compelled to provide the Witness Statement. Rather, it was an entirely “voluntary act”, made in opposition to his claim for injunctive relief (at [24]). On this basis, WFZ argued that he was not seeking permission for collateral use of compelled material, but rather “permission to use material properly in his own hands for a purpose which was entirely consistent with the injunction he obtained” (at [25]).
BBC’s response
The BBC viewed the case through a different paradigm. It argued that the Witness Statement was “journalistic material” and that the Court should instead apply the legal test within the PACE regime. Under Schedule 1 to PACE, a judge may make a production order on a police application requiring journalistic material to be disclosed if certain specified conditions are met. The BBC argued that this was the appropriate test.
The BBC said that Parliament had already struck a balance between the public interests by enacting the PACE regime. In doing so, it relied on [54] of R (BBC) v Newcastle Crown Court [2019] EWHC 2756 (Admin), which held:
A central reason for protecting journalistic material of the kind at issue in this case from disclosure is the risk that ordering its disclosure to the police would discourage people from speaking freely to the media. In particular, we accept the BBC’s submission that it is critical that the media are able to speak to sources, including alleged victims of sexual abuse, without those individuals fearing that a record made of their account by a journalist can be obtained by the police and made available to defence counsel to attack their credibility at a trial.
High Court Decision
WFZ’s application was heard by Collins Rice J. Her Ladyship was satisfied that the Witness Statement contained material which engaged “the interests of journalism and at least potentially the legal protections for journalism” (at [37]). As a result, WFZ’s application was not just a request for permission for further use of material lawfully in his hands, it was also request for the exercise of legal compulsion over unpublished journalism (at [40]).
Collins Rice J accepted that the PACE regime provided the appropriate forum, as it builds in “careful protections” for journalism, suspects, complainants, and potential witnesses (at [59]). However, the judge refused to apply the PACE test to WFZ’s application – as suggested by the BBC – because she was not familiar with the Police/CPS case against WFZ.
The outcome of this case ultimately turned on its unique facts. By the time WFZ made this application, the Police/CPS were already aware of the existence of the Witness Statement and had expressed an intention to use their statutory powers under PACE to obtain it. As a result, there was no “good reason” for pre-empting the Police/CPS and making an order under CPR 32.12. The problem with WFZ’s application was, therefore, one of “timing” (at [58]). Accordingly, Collins Rice J concluded that was in the interests of justice for the criminal processes to take their course without interference.
Comment
This decision highlights the fact-specific nature of applications under CPR 32.12(2)(b), in respect of which there is relatively limited case law. In most cases, the court will simply exercise its discretion by balancing the interests of justice between the two parties. However, if the witness statement includes journalistic material, courts will be hesitant to grant permission under CPR 32.12(2)(b), as Parliament has specifically enacted the PACE regime to balance these competing interests. And further, if the Police/CPS have indicated that they intend to obtain the witness statement via the PACE regime, it will not be appropriate for the court to pre-empt this decision and make an order under CPR 32.12(2)(b).
Oliver Fredrickson,
