Police seeking access to footage obtained by the BBC of the aftermath of the shooting of Mark Duggan – whose death triggered four days of rioting in cities across the country last summer – had failed to make out a clear and compelling case for a production order, a judge said.
There was no overriding public interest which displaced the BBC's concern to protect its journalistic source and its independence from the police, Judge David Radford said yesterday as he rejected two police applications for production orders under the Police and Criminal Evidence Act 1984 (Pace).
The applications, by Metropolitan Police Detective Constable David Jenkins, sought production of two sets of material in connection with the coming trial of a man who denies a charge of supplying a firearm to Mr Duggan.
Duggan died on August 4 last year after being shot by Metropolitan Police officers in an incident which sparked riots across the country.
The BBC obtained video footage showing the scene in Ferry Lane, north London, where Duggan was shot, filmed on a digital camera a few minutes after the shooting, and broadcast part of it on April 26 this year. This material was made available to the prosecution and defence teams in the case relating to the firearms charge.
But the corporation actually had more footage from the material filmed on the digital camera, which included soundtrack of the person who filmed it apparently describing what he had heard and seen earlier.
The same source had also filmed the aftermath some three to five minutes after the shooting on a mobile phone – the BBC bought this footage on the basis of an express assurance that it would do all it could to protect the identities of both the person who filmed the material and the person through whom it was obtained.
Det Con Jenkins made two applications for production orders covering the two sets of material, after having made then withdrawn an earlier "compendious" application for all of it.
Judge Radford said it was accepted by the police and the BBC that the digital camera footage and soundtrack was "journalistic material" which required the "special procedure" under Pace, while the mobile phone footage was "excluded material".
Gavin Millar QC, for the BBC, argued that it was not acceptable for the police to split the original application into two so as to avoid the need to satisfy the two sets of access conditions specified in Schedule 1 of the Act.
Judge Radford said: "It is accepted that a judge must consider any such applications as are made in these proceedings with great stringency."
The judge had personally to be satisfied that the relevant access conditions were fulfilled, and that, even if they were, having regard to all the circumstances, not least the provisions of Article 10 of the European Convention on Human Rights, there was a "proportionate and compelling case" to justify interfering with the media's rights when engaged in public interest journalism, particularly the right to protect sources.
The judge said he accepted the BBC's argument that both sets of access conditions had to be fulfilled before an order could be made, because the totality of the material sought included "excluded material" for which the second set of access conditions had to be met – and he had concluded that that could not be done.
Judge Radford said that although his conclusion was that the applications must fail, he would deal with the public interest arguments which had also been put, as it might be relevant, and failing to do so would also be discourteous.
Both the police and BBC accepted that, for the purpose of the applications, there were reasonable grounds for believing that an indictable offence had been committed, Judge Radford said.
But the BBC disputed that the material it held was likely to be of "substantial value" to the investigation of any such offence. The judge said the BBC's evidence was that it did not hold any footage of the shooting of Duggan itself.
Comments on the soundtrack of the footage were not made contemporaneously with the shooting, and did not corroborate any police witness's account.
In addition, the judge said, he could not conclude that any of the verbal comments made on the footage soundtrack would be admissible at the firearms charge trial.
The judge said he was not satisfied that that digital camera footage had substantial value to the case to be tried at the firearms trial.
"It does not depict the presence of any illegal firearms – let alone the only one of relevance to this case," he said.
"It is not contemporaneous but is taken several minutes later on in the aftermath of whatever had occurred.
"The words heard on it were not said per res gestae* at the time of the shooting but appreciably later by an unidentified and unco-operative source whose account is not corroborated by the account of any of the police witnesses in any witness statement taken from them."
He accepted that it was in the public interest for the jury at the trial to have all the potentially relevant evidence.
But he was not satisfied that the relevance and quality of the material sought outweighed the strong countervailing public interest in not forcing a news gathering organisations of the BBC's repute to hand over material strongly protected from disclosure by Article 10.
"There is in my judgment no clear and compelling case for doing so given that the material does not show the shooting of Mr Duggan or record any contemporaneously expressed words from any witness," Judge Radford said.
"In those circumstances I find that the applicant has not established that there is an overriding public interest that displaces the legitimate concern of the BBC to protect its journalistic sources from identification by voice recognition or otherwise and, in relation to future news gathering in the public interest, its independent from the police authorities."