At a hearing on 3 April 2017, Mr Justice Mann made an order that the Metropolitan Police Service (“MPS”) provide information about Operation Yewtree to the BBC, the first defendant in to a privacy claim brought by Sir Cliff Richard.
The claim arises out of the publicity given to a police raid on his Sir Cliff’s flat in August 2014. Sir Cliff “formally asked” the BBC whether its source of the story was within Operation Yewtree – which was conducted by the MPS. The BBC sought to resist giving that information on the basis that the pool of officers within Operation Yewtree was small so that answering this question risked disclosing a journalistic source.
In support of its case the BBC sought an order requiring the MPS to disclose a large number of documents in order to show the numbers of people who were aware of the investigation into Sir Cliff and information on an internal investigation to identify a potential source in Operation Yewtree.
The Judge held that the information sought by the BBC related to an important matter and a significant point in the case, namely the extent of its journalistic privilege.
Mann J said that the disclosure order sought went too far and had to be refused. The MPS would have to provide a huge number of possible documents. There was, however, a more efficient way of acquiring the necessary information sought . The information could be obtained via a statement by a responsible, senior police officer, possibly the MPS’s Assistant Commissioner, since he had headed the internal investigation into a possible leak.
The court could create such a mechanism for achieving disclosure by granting the BBC permission to issue a witness summons, but ordering it not to serve it if the MPS provided the necessary information within a certain period of time. There was a parallel to that mechanism in patent actions where a party could provide a product and process description
The questions to be answered in the MPS’s statement concerned two issues. First, the statement had to disclose the approximate number of people (a) inside the MPS with authorised involvement in the investigation into the claimant; (b) inside the MPS with authorised awareness of the investigation; (c) outside Operation Yewtree aware of the investigation, including CPS officers, or very senior police officers. Secondly, the statement had to disclose an outline of the investigation into the leak, and the result of that investigation.
The application had thereby changed from a disclosure order to a statement obligation. The MPS was at liberty to apply if it objected to the technique or scope of the information sought.
There will be a further hearing on 4 May 2017 to determine whether or not the BBC should disclose information as to whether the source was within Operation Yewtree.