The criminal justice system is now criticised regularly, perhaps daily. One particular area for complaints concerns the length of police investigations, which can last months, if not years. As a consequence, some complainants are turning to other means by which to achieve ‘justice’, be it civil claims or contributing to media exposés on high-profile individuals and celebrities.

The interplay between complainants’ interactions with the media and the ongoing police investigations, and the consequences of these alternate methods, was recently considered by the High Court in WFZ v The British Broadcasting Corporation [2024] EWHC 376 (KB).

BBC in the frame

WFZ, a high-profile individual, is accused of sexual misconduct and subject to a criminal investigation by the Metropolitan Police for alleged serious sexual offences. In June 2023, Mrs Justice Collins Rice made an interim injunction prohibiting the publication by the BBC of a report into the allegations on the basis that it might prejudice the criminal investigation.

The BBC report could not be published the determination of the underlying claim which sought a permanent injunction of the publication of the report on the basis of Article 6 of the European Convention on Human Rights, contempt of court and misuse of private information.

As part of the BBC’s defence to the injunction request, a BCC journalist gave a witness statement in June 2023 with information about how they found out about the allegations against WFZ, i.e. through discussions with the complainants. WFZ wished to use this witness statement in his defence as part of the criminal investigation. However, there is a long-established rule that a witness statement may be used only for the purpose of the proceedings for which it is served save in certain circumstances (see Civil Procedure Rule (CPR) 32.12).

In August 2023, WFZ told the BBC that he wished to use the content of witness statement to draft a letter of representations to the police and Crown Prosecution Service (CPS) on why the investigation should be concluded without a prosecution. The BBC did not consent to the witness statement being used in that way.

One particular quirk to the WFZ case was that, in September 2023, the police had requested that the BBC disclose material gathered during its investigation, which included the said witness statement. The BBC had refused this request, citing its editorial guidelines, in particular, the disinclination to release “untransmitted journalistic material” absent a court order. In November 2023, the police confirmed that it intended to obtain a production order to obtain the material, but did not confirm when¹.

WFZ applied to the court for permission to deploy the statement in the criminal investigation, and, by obtaining the relevant court order, avoid the collateral use issue².

Timing issue

In refusing WFZ’s application, Mrs Justice Collins Rice held the witness statement contained material that engaged journalistic issues. As a result, WFZ’s application amounted to a request to compel the provision of unpublished journalism. In her judgment, a production order under the Police and Criminal Evidence Act 1984 was the more appropriate forum as it had built in protections for all actual and potential parties.

Specific reliance was placed on the indication given by the police that they would obtain the witness statement via a production order. The issue was therefore one of “timing” and there was no good reason for pre-empting the police by making an order under CPR 32.12.

Useful obiter

Much of the consideration of this case has been about the release of journalistic material, and the collateral use rule, i.e. what purposes it can be used for. It is clear that the court considers that if the police and the CPS have indicated that they plan on obtaining the witness statement(s) via a production order, the court will be reticent to make an order under CPR 32.12(2)(b).

However, the case also had the consequence of highlighting the importance of pre-charge engagement in criminal investigations, and ensuring the police are pointed in the right direction of third parties that may hold information that ought to be obtained as part of their obligations to follow all reasonable lines of inquiry capable of impacting the criminal investigation. In paragraph 53, Collins Rice J observed:

“The whole purpose of the injunction which is currently in place is to permit the criminal investigation to proceed, without the prejudice of premature publicity, up to and including the charging decision. The police/CPS have given me to understand they have no present intention to proceed to a charging decision without applying for a production order for the June WS. It is not strictly a matter for me on this application, but there would appear on the face of it to be at least some risk of unfairness, to the Claimant or the criminal proceedings, if the police/CPS were now to proceed to charge the Claimant without doing what they said they were going to do and without warning him of that, knowing as they do that there is more the Claimant wants to say. But the police/CPS have their own obligations of fairness to the Claimant, with which they give every appearance of complying and intending to continue to comply. In any event, I have no basis for working on any other understanding than that the police intend to apply for a production order, and no basis for speculating further.”

(Emphasis added.)

The starting position adopted by the court was therefore to take the police at their word, and give them with the opportunity to obtain and review the material. By doing so, it does not in fact impinge on WFZ’s rights. A wider consideration is that by refusing to allow the use of that information now, it would inhibit the ability of those who act for a suspect to make the fulsome representations that they might otherwise be able to do if they were permitted to use the material.

Ultimately, that is a judgment call for lawyers as to whether to advance representations absent material that appears capable of having an impact on a decision to charge a suspect or not, but that discussion appears to have been overlooked.

In some ways, the court went further than it needed to (albeit inadvertently) by alluding to unfairness when the police or CPS take a decision to prosecute individuals without the full information, particularly where they confirmed they will obtain it.

In any event, the judgment in WFZ is now a powerful authority to deploy in pre-charge correspondence, highlighting the expectations that the court has of the investigations to be undertaken before the start of proceedings against a suspect, and that representations by those acting for suspects cannot simply be ignored.

Moreover, it once again confirms the importance of pre-charge legal work and adopting a proactive approach to criminal investigations from the off.

Footnotes

¹ Schedule 1 Police and Criminal Evidence Act 1984

² CPR 32.12(2)(b)