BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
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4. The Police and Criminal Evidence Act 1984
121. Schedule 1 of PACE governs the procedure for applying to court
for a production order. It provides, as relevant:
“1. If on an application made by a constable a judge is satisfied that one or other of
the sets of access conditions is fulfilled, he may make an order under paragraph 4
below.
...
4. An order under this paragraph is an order that the person who appears to the
judge to be in possession of the material to which the application relates shall—
(a) produce it to a constable for him to take away; or
(b) give a constable access to it,
not later than the end of the period of seven days from the date of the order or the
end of such longer period as the order may specify.
...
7. An application for an order under paragraph 4 above that relates to material that
consists of or includes journalistic material shall be made inter partes.”
122. Section 78 of PACE permits a court to refuse to allow evidence on
which the prosecution proposes to rely to be given if it appears to the court
that, having regard to all the circumstances, including the circumstances in
which the evidence was obtained, the admission of the evidence would have
such an adverse effect on the fairness of the proceedings that the court ought
not to admit it.
D. IPT practice and procedure
1. RIPA
123. The IPT was established under section 65(1) of RIPA to hear
allegations by citizens of wrongful interference with their communications
as a result of conduct covered by that Act. Members must hold or have held
high judicial office or be a qualified lawyer of at least ten years’ standing.
124. Section 65(2) provides that the IPT is the only appropriate forum in
relation to proceedings against any of the intelligence services for acts
allegedly incompatible with Convention rights, and complaints by persons
who allege to have been subject to the investigatory powers of RIPA. It has
jurisdiction to investigate any complaint that a person’s communications
have been intercepted and, where interception has occurred, to examine the
authority for such interception.
125. According to sections 67(2) and 67(3)(c), the IPT is to apply the
principles applicable by a court on an application for judicial review. It does
not, however, have power to make a Declaration of Incompatibility if it
finds primary legislation to be incompatible with the European Convention