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Judgments - Attorney-General's Reference No. 3 of 1999: Application by the British Broadcasting corporation to set aside or vary a Reporting Restriction Order


SESSION 2008-09

[2009] UKHL 34




Attorney-General’s Reference No. 3 of 1999: Application by the British Broadcasting corporation to set aside or vary a Reporting Restriction Order

Appeal Committee

Lord Phillips of Worth Matravers

Lord Hope of Craighead

Lord Walker of Gestingthorpe

Lord Brown of Eaton-under-Heywood

Lord Neuberger of Abbotsbury



Gavin Millar QC

Anthony Hudson

(Instructed by BBC Litigation Department)

Advocate to the Court:

Lord Pannick QC

David Pievsky

(Instructed by Treasury Solicitors )

Hearing date:

27 APRIL 2009






Attorney General’s Reference No. 3 of 1999: Application by the British Broadcasting Corporation to set aside or vary a Reporting Restriction Order

[2009] UKHL 34


My Lords,

1.  I have had the benefit of reading in draft the opinions of my noble and learned friends Lord Hope of Craighead, Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury in relation to this application. These are in accord and I agree both with their reasoning and with their conclusion that the “anonymity order” made by the House in this case should be discharged.

2.  The order stated that it was made pursuant to section 35 of the Criminal Appeal Act 1968 and the Criminal Appeal (Reference of Points of Law) Rules 1973. In common with your Lordships I question whether the 1973 Rules applied to this reference. I also question whether the order was one that it was appropriate to make in the exercise of the inherent power that this House must enjoy to ensure that its proceedings do not result in an unjustified interference with a party’s article 8 right to respect for his private life.

3.  Rules 3 and 6 of the 1973 Rules related to references to the Court of Appeal of a point of law pursuant to section 36 of the Criminal Justice Act 1972. These rules have now been replaced by similar rules in Part 70 of the Criminal Procedure Rules 2005 (S.I. 2005 no. 384). Rule 70.3(2)(c) requires a reference to exclude any reference to the defendant’s name and any other reference that may identify the defendant. Rule 70.8 provides:

“Where the Attorney General refers a point of law, the court must not allow anyone to identify the defendant during the proceedings unless the defendant gives permission.”

4.  This rule is in conflict with the normal position under which the identity of a defendant in criminal proceedings can be made public. The House was not informed of the reason for the rule, but I suspect that the thinking behind it is that a defendant who has been acquitted should not be subject to publicity that suggests that he may have been guilty after all. While in some circumstances there may be justification for giving anonymity to a defendant who is the subject of an Attorney’s reference on a point of law, I question whether the requirement of rule 70.8 will always strike the correct balance between the competing demands of Articles 8 and 10 of the Convention. Perhaps this case is one where it did not. The Criminal Procedure Rule Committee may wish to give consideration to making the grant to the defendant of anonymity on a reference to the Court of Appeal discretionary rather than mandatory.


My Lords,

5.  I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Brown of Eaton-under-Heywood. I gratefully adopt his account of the background to this case. I am also in full agreement with him, for all the reasons that he gives, that your Lordships should accede to the BBC’s application and discharge the anonymity order which the House made on 23 October 2000 (“the Order”). As the application raises some important issues of principle, however, I should like to explain how I think they should be approached.

The background

6.  At the time of D’s trial in June 1999 on the charge of rape of which he was acquitted by direction of the trial judge there was no statutory restriction on any reporting of the trial which revealed the identity of the accused. In that respect he had no legitimate expectation of privacy. The trial took place in public, and the fact that he was acquitted was a matter of public interest. The principle of open justice which lies at the heart of public confidence in the criminal justice system permits the free reporting of criminal trials and the proper identification of those who have been convicted and sentenced: In re Trinity Mirror plc [2008] EWCA Crim 50, [2008] QB 770, para 33. It permits the proper identification of those who have been acquitted too. The public interest may be as much involved in a remarkable acquittal as in a surprising conviction: In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, para 30, per Lord Steyn. D was, of course, protected against being put on trial again for the same offence by the double jeopardy rule. That protection has now been removed by Part 10 of the Criminal Justice Act 2003. But this change of the law did not of itself impose any restriction on the extent to which the grounds for his acquittal or the reasons for seeking a retrial could be reported by the media.

7.  The Court of Appeal has power under section 82 of the 2003 Act to order that any matter that would give rise to a substantial risk of prejudice to the interests of justice in the event of a retrial is not to be published. But until the prosecutor has given notice to the Court of Appeal of his application for a retrial under section 80(1) an order restricting publication may be made only on the application of the Director of Public Prosecutions, and then only if an investigation of the commission of the offence by the acquitted person has been commenced: see section 82(6). That stage has not been reached, and it is not yet clear whether it ever will be. So, had it not been for the order that the House made on 23 October 2000 the BBC would have been free to include details of this case in their proposed television programme suggesting that D was wrongly acquitted of the alleged rape and identifying him as the perpetrator. But broadcasting these details will not just be of interest to the public. Revealing D’s name will affect him too. As Lord Hoffmann observed in Jameel (Mohammed) v Wall Street Journal Europe Sprl [2007] 1 AC 359, para 91, the reputation of an individual is part of his personality. It is, as he said, quoting Othello, Act 2 Scene 3, an “immortal part” of himself. So it is right that he should be able to vindicate it. But control under the common law over information which is objectionable and false is one thing. The law of defamation will usually provide a remedy. Not so where information which the individual wishes to screen from others is accurately reported and is true.

8.  The question is whether there is any good reason why the Order should remain in place in these circumstances. As the argument was developed before your Lordships, there are two aspects to this question. The first is whether there was any proper basis on which it could have been granted. The second is whether D is entitled to invoke the protection of article 8 of the European Convention on Human Rights against its being set aside. Mr Millar QC for the BBC devoted much of his argument to the first question. Lord Pannick QC in his helpful submissions as amicus curiae did not seriously contest the first point. He concentrated instead on the second question, having regard to the fact that the House in its judicial capacity is a public authority for the purposes of section 6(1) of the Human Rights Act 1998 and must act compatibly with the Convention rights.

The Order

9.  The circumstances that led to the making of the Order are obscure, as no reasons for its making were given. It bore to have been made pursuant to section 35 of the Criminal Appeal Act 1968 and the Criminal Appeal (Reference of Points of Law) Rules 1973. Section 35(3) of the 1968 Act states that for the purpose of disposing of an appeal the House of Lords may exercise any powers of the Court of Appeal or may remit the case to that Court. The powers to which this provision refers are the powers of disposing of an appeal contained in Part I of the 1968 Act, such as to allow or dismiss an appeal or order a retrial. Rules 3 and 6 of the 1973 Rules were made in the exercise of the rule-making power under section 46 of the 1968 Act as amended. But the 1973 Rules are not concerned with disposal of appeals. They deal with the conduct of references under section 36 of the Criminal Justice Act 1972. I am inclined to think that the correct view of this legislation is that it leaves the House free to deal with references as it thinks fit. The Practice Directions applicable to criminal appeals make no provision for them. Nevertheless it can be assumed that the House will, for obviously good reasons, wish to follow the procedures which the Court of Appeal is required to adopt. Those which are set out in Rules 3 and 6 fall into that category. The fact that D was identified by name on the cover of the bound record and other documents which were before the House in the reference suggests that their provisions had been overlooked. It seems likely that the purpose of the Order was to correct what was thought to have been a deficiency in this respect.

10.  Rules 3 and 6 are designed to ensure that the identity of the respondent to the reference is not disclosed during the proceedings in the Court of Appeal. Their purpose is essentially preventative, bearing in mind that things that are mentioned in open court are normally available for publication by the media. Withholding the name from the public during the proceedings will provide the basis for the making of an order under section 11 of the Contempt of Court Act 1981: R v Arundel Justices, Ex parte Westminster Press Ltd [1985] 1 WLR 708. But the Rules rely instead on non-disclosure, not on the withholding of information that has been disclosed in open court. In any event it was not in the exercise of any power conferred on it by section 11 that the House made the Order. As for the Rules, they do not purport to confer a power to prohibit or restrict publication of information about the respondent’s identity. I agree with my noble and learned friend Lord Neuberger that they are concerned only to prevent the identification of the respondent in the reference documentation and his identification at the hearing of the reference. They do not contemplate the situation that would arise if, contrary to what they provide, the respondent is identified.

11.  It is hard to see therefore how, even on the most generous reading of section 35(3) and the Rules, the House could have reached the view that it had power to make an order under those provisions that prohibited any publication or broadcast of the proper name of any person or place which was likely to lead to D’s identification as having been involved in the proceedings at any stage. The Order could be construed more narrowly, as prohibiting only the identification of D as the respondent to the reference. But even then it is, at best, highly doubtful whether the House had power to make such an order under the provisions referred to.

12.  The fact is, however, that the Order was made. The issue is whether it should now be discharged. Lord Pannick invited your Lordships to regard the question whether the House had power to make the Order as being no longer the primary, or indeed the decisive, consideration. He suggested that, if the position was that by discharging the Order the House would be doing something which was incompatible with D’s article 8 Convention right, the House would want to maintain the Order.

13.  I think that this issue has to be approached on the assumption that it is at least arguable that the House had power to make the Order. Section 6(1) of the 1998 Act has an important part to play when a court is considering how it should exercise a power that has been conferred upon it by statute or, in the case of the High Court for example, is vested in it by an inherent jurisdiction. But it cannot confer on a court a power that it does not otherwise have. It would seem therefore that the setting aside of an order that has been made without jurisdiction cannot be said to be incompatible with any Convention right that its preservation might protect, as the assumption must be that the court did not have power to afford it that protection. But the House has an inherent jurisdiction to make such orders as are necessary for the purposes of the proceedings which are before it. It is perhaps worth noting that in Montgomery v HM Advocate [2003] 1 AC 641 the Judicial Committee of the Privy Council ordered that publication of the proceedings in that appeal be postponed until the conclusion of the trial: see pp 643, 675. So I would be reluctant to hold that the House did not have the power to make the Order even if, as seems to be reasonably clear, it did not have power under the Rules to do so. I agree therefore with Lord Pannick that the decisive issue is whether setting aside of the Order would be incompatible with D’s rights under article 8 of the Convention.

The Convention rights

14.  Article 8 provides:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the protection of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

15.  The BBC point to the qualification that article 8(2) sets out where this is necessary for the protection of the rights and freedoms of others. It wishes to assert the right to freedom of expression that is guaranteed by article 10 of the Convention, which provides:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

16.  The BBC claim to assert this right on behalf of the public. Their position is that the information that they wish to broadcast is information which the public has a right to receive. Section 12(4) of the 1998 Act states that the court must have particular regard to the importance of that Convention right and, among other things, to the extent to which it is or would be in the public interest for the material to be published. As Sedley LJ said in Douglas v Hello! Ltd [2001] QB 967, para 136, the court must also bear in mind when it is applying that test that the qualifications in article 10(2) are as relevant as the right set out in article 10(1). The phrase “for the protection of the reputation or rights of others” is the qualification that is in point in this case. Mr Millar for the BBC submits that it is in the public interest that a programme that identifies D in relation to the rape in the context of the removal of the double jeopardy rule should be broadcast. There are two questions, then, that must be answered. Would disclosure of D’s identity in such a programme engage his article 8 Convention right? If so, does his article 8 Convention right outweigh the right of freedom of expression under article 10 which the BBC wish to assert, bearing in mind the qualification in article 10(2)?

17.  As in Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457, these arguments involve the familiar competition between freedom of expression and respect for an individual’s privacy. In that case, at para 12, Lord Nicholls of Birkenhead said:

“Both are vitally important rights. Neither has precedence over the other. The importance of freedom of expression has been stressed often and eloquently, the importance of privacy less so. But it, too, lies at the heart of liberty in a modern state. A proper degree of privacy is essential for the well-being and development of an individual.”

As Lord Hoffmann said in para 55, there is no question of automatic priority. Nor is there a presumption in favour of one or the other. The question is rather as to the extent to which it is necessary to qualify the one right to protect the underlying value that the other seeks to protect. The outcome is determined principally by considerations of proportionality: Douglas v Hello! Ltd [2001] QB 967, para 137, per Sedley LJ.

The article 8 right

18.  The first question, as to whether D’s article 8 right is engaged, requires careful scrutiny. As I said earlier, the common law of defamation offers no assistance where information which the individual wishes to screen from others will be broadcast accurately and is true. But the area of the law to which Lord Pannick’s submissions direct attention is the wrongful disclosure of private information. Like everyone else, there are facets of D’s personality that are unique to him. They include aspects of his identity such as his name, his character and his appearance. In R v Broadcasting Standards Commission, Ex p BBC [2001] QB 885, para 48, Lord Mustill, sitting in the Court of Appeal, said:

“To my mind the privacy of a human being denotes at the same time the personal ‘space’ in which the individual is free to be itself, and also the carapace, or shell, or umbrella, or whatever other metaphor is preferred, which protects that space from intrusion. An infringement of privacy is an affront to the personality, which is damaged both by the violation and by the demonstration that the personal space is not inviolate.”

It has come to be accepted, under the influence of human rights instruments such as article 8 of the European Convention, that the privacy of personal information is something that is worthy of protection in its own right: Campbell v MGN Ltd, para 46, per Lord Hoffmann. As he put it in para 50, human rights law has identified private information as something worth protecting as an aspect of human autonomy and dignity.

19.  In Von Hannover v Germany (2004) 40 EHRR 1, para 50 the European court said that the concept of private life extends to aspects relating to personal identity, such as a person’s name or a person’s picture, and that it includes a person’s physical and psychological integrity. As Clayton and Tomlinson, The Law of Human Rights, 2nd ed (2009), para 12.288, put it, identity involves the manner in which a person presents himself to the state and to others. So there is a zone of interaction of a person with others, even in a public context, which may fall within the scope of private life. The issue in this case is about the publication of a name, linked to an allegation that the person is guilty of the crime of rape. In Burghartz v Switzerland (1994) 18 EHRR 101 it was about the use of name as a means of personal identity and of linking it to a family: see para 24. It is not about whether the article 8 right is engaged by the publication of a photograph. So the familiar trilogy of cases that have addressed that issue - Campbell v MGN Ltd [2004] 2 AC 457 (Naomi Campbell), Von Hannover v Germany (Princess Caroline of Monaco) and Murray v Express Newspapers plc [2008] EWCA Civ 446, [2008] 3 WLR 1360 - offer no direct assistance. It has been suggested that the European court in Von Hannover v Germany took a wider view of what falls within an individual’s private life than Campbell v MGN Ltd: see Murray v Express Newspapers plc, para 43 (viii). But it is not necessary to resolve that issue in this case. The principles on which all those cases proceed indicate that the publication of D’s name will engage article 8 if this is done in circumstances where D has a reasonable expectation of privacy. This, as Lord Nicholls said in Campbell v MGN Ltd, para 21, is the touchstone of what falls within the ambit of “private life".

20.  The fact that D was acquitted of the rape is not of itself private information the publication of which would be incompatible with his right to privacy. This has nothing to do with his private life. The trial was held in public, and the media were at liberty to publish D’s name along with other details of the case other than the identity of the complainant. But the point to which the BBC wish to draw attention is not confined to his acquittal. At the heart of the broadcast will be the fact that a DNA profile obtained from a saliva sample that was taken from him when he was arrested for an offence of burglary was matched with the DNA profile obtained from swabs taken from the rape victim. The judge’s ruling that the DNA evidence was inadmissible having been held to have been wrong in Attorney General’s Reference (No 3 of 1999) [2001] 2 AC 91, it is arguable that it is available as new and compelling evidence for the purpose of a retrial within the meaning of section 78 of the Criminal Justice Act 2003. What the BBC wish to do is to undermine his acquittal and to campaign for his retrial. Lord Pannick’s response is that if the keeping and storing of his DNA sample was an interference with the right guaranteed to D by article 8(1), so too must be the programme that the BBC wish to make which will refer to him by name and to the circumstances of his acquittal on the assumption that his DNA profile is available as new and compelling evidence.

21.  D was acquitted of the burglary, and it was conceded in that case that his DNA profile ought to have been removed from the database before the match was made under section 64(1) of the Police and Criminal Evidence Act 1984, as it was prior to the substitution of section 64(1A) by section 82 of the Criminal Justice and Police Act 2001. In R (S) v Chief Constable of the South Yorkshire Police [2004] UKHL 39, [2004] 1 WLR 2196, differing views were expressed as to whether retention of fingerprints or samples amounted to an interference with the right to respect for private life. In para 31 Lord Steyn said that he inclined to the view that article 8(1) was not engaged and that, if he was wrong in this view, any interference was very modest indeed. Baroness Hale of Richmond disagreed. In para 78 she said that it would be surprising if Strasbourg were not to consider it incumbent upon the state to justify its retention and storage of DNA samples and profiles. Her prediction was borne out by the court’s decision in S and Marper v United Kingdom, Application Nos 30562/04 and 30566/04, 4 December 2008. In that case the Grand Chamber drew attention in para 122 to the risk of stigmatising those who have not been convicted of any offence and are entitled to the presumption of innocence. It held that the blanket and indiscriminate nature of the power of retention under the substituted section 64(1A) of PACE failed to strike a fair balance between the competing public and private interests, and that there had been a violation of article 8: para 125.

22.  As the indiscriminate retention of samples of a person’s DNA must now be held to be incompatible with his rights under article 8(1), so too must be the publication of the fact that his retained DNA has been used to link him to the commission of a crime of which he has been acquitted. I think that it must follow that the test as to whether this was information in respect of which D had a reasonable expectation of privacy is satisfied. He was acquitted of the burglary in connection with which his DNA samples were taken. He has been acquitted of the rape too. The double jeopardy rule has been abolished but the Attorney General has not taken steps to seek his retrial for that offence. He remains entitled to the presumption of innocence. This is not just an article 6 point. It has a direct bearing on the approach that must be taken to his article 8 right. The link that his DNA sample provides to the commission of the rape is personal information. The giving of publicity to the link will inevitably suggest that he is guilty of the offence. Lord Pannick described this as the jigsaw effect. His reputation, his personality, the umbrella that protects his personal space from intrusion, will just as inevitably be damaged by it. The conclusion that broadcasting this information will engage his right to respect for his private life seems to me to be inescapable.

The article 10 right