(back to preceding text)

23.  The question then is whether publication of the facts that the BBC wish to publish in the exercise of their right of freedom of expression under article 10 can be justified under article 8(2). The tests that must be applied are well settled. They are whether publication of the material pursues a legitimate aim, and whether the benefits that will be achieved by its publication are proportionate to the harm that may be done by the interference with the right to privacy. Any restriction of the right of freedom of expression must be subjected to very close scrutiny. But so too must any restriction on the right to privacy. The protection of private life has to be balanced against the freedom of expression guaranteed by article 10: Von Hannover v Germany (2004) 40 EHRR 1, para 58. One must start from the position that neither article 8 nor article 10 has any pre-eminence over the other. The values that each right seeks to protect are equally important. The question is how far, as article 8(2) puts it, it is “necessary” for the one to be qualified in order to protect the values that the other seeks to protect.

24.  Further guidance as to the approach that is to be adopted was given in Von Hannover v Germany. In para 60 the European court said that in the cases in which it has had to balance the protection of private life against freedom of expression, it has always stressed the contribution that photographs or articles in the press make to a debate of general interest. In para 63 it pointed out that a fundamental distinction had to be drawn between reporting facts which were capable of contributing to imparting information and ideas on matters of public interest and reporting details of the private life of an individual. In para 76 it said that the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published material makes to a debate of general interest. So the extent to which the programme that the BBC wish to make will satisfy that test must be examined with just as much care as the question whether the broadcast will engage D’s right under article 8.

25.  Lord Pannick suggested it would be open to the BBC to raise the issue of general interest without mentioning D’s name or in any other way disclosing his identity. But I think that Mr Millar was right when he said that the BBC should not be required to restrict the scope of their programme in this way. The freedom of the press to exercise its own judgment in the presentation of journalistic material has been emphasised by the Strasbourg court. In Jersild v Denmark (1994) 19 EHRR 1, para 31, the court said that it was not for it, nor for the national courts for that matter, to substitute their own views for those of the press as to what technique of reporting should be adopted by journalists. It recalled that article 10 protects not only the substance of the ideas and the information expressed but also the form in which they are conveyed. In essence article 10 leaves it for journalists to decide what details it is necessary to reproduce to ensure credibility: see Fressoz v France (1999) 31 EHRR 28, para 54. So the BBC are entitled to say that the question whether D’s identity needs to be disclosed to give weight to the message that the programme is intended to convey is for them to judge. As Lord Hoffmann said in Campbell v MGN Ltd [2004] 2 AC 457, para 59, judges are not newspaper editors. They are not broadcasting editors either. The issue as to where the balance is to be struck between the competing rights must be approached on this basis.

26.  Will the revealing of D’s identity in connection with the proposed programme pursue a legitimate aim? I would answer that question in the affirmative. In Jersild v Denmark, para 31 it was recognised that there is a duty to impart information and ideas of public interest which the public has a right to receive. The programme that the BBC wish to broadcast has been inspired by the removal of the double jeopardy rule. What this means in practice for our system of criminal justice is a matter of legitimate public interest. Among the issues which can be so described are the kinds of offences to which Part 10 of the 2003 Act applies, and the circumstances in which an application for a person who has been acquitted to be retried would be appropriate. These issues could, of course, be discussed in the abstract by reference to hypothetical facts and circumstances. But the arguments that the programme wishes to present will lose much of their force unless they can be directed to the facts and circumstances of actual cases. The point about D’s name is that the producers of the programme believe that its disclosure will give added credibility to the account which they wish to present. This is a view which they are entitled to adopt and, given the content of the programme as a whole, it is an aim which can properly be regarded as legitimate.

27.  There remains the question of proportionality. As against the public’s right to receive information there is D’s right to be protected against publication of details of his private life. But the weight that is to be given to his right has to be judged against the potential for harm if publication does take place. The fact that he was acquitted of the rape is already legitimately in the public domain. He cannot complain of a violation of his rights under article 8 if, as a result of the programme, an application is made for him to be put on trial again for that offence. This is because the statute provides for this, and because the interests of a democratic society in the prevention of crime and disorder lie in the bringing of those who have committed crimes before the courts so that, if convicted, they can be punished for them.

28.  There is a risk, as Lord Pannick has pointed out, of D’s being tried by the media. That, of course, is to be deprecated. If this happens it will add to the effects on his personality that will flow inevitably from the mention of his name in the broadcast. But I do not see this additional feature as a reason for holding that his article 8 right to the protection of his reputation outweighs the right of freedom of expression on a matter of legitimate public interest. It may increase the pressure on the authorities, which will be there anyway as a result of the broadcast, to take steps for him to be retried. If that happens, the system of justice will take its course. Procedures are available for protecting D’s identity so that he can receive a fair trial: section 82 of the 2003 Act: see also Montgomery v HM Advocate [2003] 1 AC 641. The conclusion which I would draw is that the interference with D’s article 8 right will be significant, but that it is proportionate when account is taken of the weight that must be given to the competing right to freedom of expression that the BBC wish to assert.

Conclusion

29.  For these reasons I too agree that the Order should now be discharged.

LORD WALKER OF GESTINGTHORPE

My Lords,

30.  I have had the advantage of reading in draft the opinions of my noble and learned friends Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury. For the reasons which they give I too would allow this application.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

31.  For centuries past it was not possible to re-try a defendant following acquittal on indictment, whatever damning evidence might subsequently come to light. This was the so-called double jeopardy rule. A narrow exception to the rule was introduced by sections 54 and 55 of the Criminal Procedure and Investigations Act 1996, which provide on strict conditions for the quashing of “tainted acquittals” where, for example, a juror or witness has been interfered with or intimidated. On 4 April 2005, however, there came into effect Part 10 of the Criminal Justice Act 2003 which now makes it possible to re-try persons acquitted of specified serious offences where the Court of Appeal is satisfied that there is “new and compelling evidence” available and that a retrial would be “in the interests of justice". Thus far this power has been little used and, indeed, it seems that only the second such retrial is to take place in December 2009.

32.  This is the context in which the BBC are anxious to commission and broadcast a series of programmes designed to explore a number of controversial acquittals which they suggest warrant, at the very least, close consideration of possible retrials. One such acquittal—and that which the BBC wish to use for the pilot episode of their proposed series—was that of the defendant (“D”) who at the Central Criminal Court on 18 June 1999 was acquitted of a most shocking offence: the anal rape of a 66-year old woman in her own home. The acquittal necessarily followed from the trial judge’s ruling that DNA evidence crucial to the prosecution’s case was inadmissible by virtue of section 64(3B) of the Police and Criminal Evidence Act 1984 (PACE).

33.  As matters presently stand, however, the BBC cannot use D’s case for their proposed broadcast, at any rate not as they would wish. D’s acquittal was the subject of an Attorney-General’s reference under section 36(1) of the Criminal Justice Act 1972, initially to the Court of Appeal and then upon further reference to your Lordships’ House. On 14 December 2000 the House decided that the DNA evidence was not after all inadmissible but rather could at the judge’s discretion have been admitted under section 78 of PACE—Attorney General’s Reference (No 3 of 1999) [2001] 2 AC 91 (hereafter “the reference”). Meanwhile, however, at the beginning of the reference hearing on 23 October 2000, their Lordships had made an order:

“that, pursuant to section 35 of the Criminal Appeal Act 1968 and the Criminal Appeal (Reference of Points of Law) Rules 1973, no mention shall be made in any publication or broadcast of the proper name of any person or place which is likely to lead to the identification of the Respondent until further Order.”

That order, so long as it stands, would prevent the BBC from broadcasting the circumstances of D’s acquittal and discussing the possibilities of his future retrial save on an entirely anonymous basis, and it is that order which by the present application to the House the BBC now seek to have discharged.

34.  Before turning to consider the powers under which the order (“the anonymity order", as I shall call it) was made, and the arguments for and against its discharge, it is necessary to set out something more of the circumstances of the offence and how D came to be tried and acquitted of it. Much of this can conveniently be found in Lord Steyn’s opinion on the reference.

35.  The rape occurred in the early hours of 23 January 1997 when a man climbed over a garden wall, forced open a ground floor window and entered the victim’s bedroom. Having threatened her, punched her several times and tied her hands behind her back with flex, he then raped her anally. Afterwards he pushed her into a hallway cupboard and blocked its door shut. He then left, taking with him money and other stolen items. Many hours later, about 7 pm that evening, the police found the victim still tied up in the cupboard. As Lord Steyn observed: “The ordeal of the woman was horrendous and the offence of rape was of the utmost gravity.” On 15 April 1997 a DNA profile, obtained from semen found on swabs taken from the victim, was placed on the national DNA database.

36.  On 4 January 1998 D was arrested and charged with an unrelated offence of burglary. A saliva sample was lawfully taken from him and submitted for DNA profiling. This eventually led to a match being made on 6 October 1998 between D’s DNA profile and that obtained from the semen found on the rape victim’s swabs. Meanwhile, however, on 23 August 1998, D had been acquitted on the unrelated burglary charge so that, in accordance with section 64 of PACE as it then stood, his DNA sample should have been destroyed, and the profile derived from it removed from the database, before the match was made on 6 October. (Such, at least, has always been conceded by the prosecution although it seems that retention of the sample might after all have been lawful: D had given a false name when arrested and tried for the unrelated burglary and had thereby concealed from the police his previous convictions including one for affray which would have justified retention of the sample despite acquittal on the burglary charge. Whatever be the position as to that, however, I shall henceforth consider the case, as did the House on the reference, on the basis that retention of the saliva sample had been unlawful under PACE.)

37.  On 15 October 1998, following the matching of the profiles on 6 October, the police arrested D for the rape and, upon his refusal to consent to the taking of an intimate sample, a police superintendent authorised the taking of a non-intimate sample of plucked head hair. On 18 October a forensic scientist confirmed that the DNA profile obtained from this hair matched that found on the rape victim’s swabs and said that in his opinion the chances of obtaining such a match if the DNA found on the swabs had come from someone unrelated to D was one in 17 million. D was then charged with burglary, assault occasioning actual bodily harm and rape, committed on 23 January 1997.

38.  In June 1999, D was tried before Judge Hitching and a jury at the Central Criminal Court. The Crown’s case depended entirely on the DNA evidence: the match between the profile of the sample taken from D’s hair on 15 October 1998 and the profile obtained from the swabs taken from the victim—"compelling evidence” as it was later described by the Court of Appeal on the reference. The defence, however, successfully submitted to the judge that that evidence was rendered inadmissible by the mandatory terms of section 64(3B) of PACE:

“Where samples are required to be destroyed . . . information derived from the sample of any person entitled to its destruction . . . shall not be used—(a) in evidence against the person so entitled; or (b) for the purposes of any investigation of an offence.”

39.  The judge having ruled the DNA evidence inadmissible, the prosecution offered no evidence and, on 18 June 1999, D was duly acquitted.

40.  Following D’s acquittal, the Attorney General, pursuant to section 36 of the 1972 Act, referred to the Court of Appeal the point of law arising as to whether, notwithstanding the terms of section 64(3B) of PACE, the judge had a discretion to admit the evidence. The Court of Appeal answered the question in the negative but the House of Lords, on a further reference by the Court of Appeal at the Attorney General’s request, on 14 December 2000 reversed the Court of Appeal’s decision and held that section 64(3B)(b) did not involve the mandatory exclusion of evidence obtained as a result of a failure to comply with the prohibition on use of an unlawfully retained sample for the purposes of an investigation. Rather, read with section 78 of PACE, it left the question of admissibility to the trial judge’s discretion. The House held that the admission of the evidence would not breach article 8 of the Convention nor, in the absence of any principle of Convention law prohibiting the use of unlawfully obtained evidence, the defendant’s article 6 right to a fair hearing.

41.  D’s acquittal was reported by the Evening Standard under the headline “Rape charge man freed by DNA loophole". The article named D—the defendant’s right to anonymity in rape cases having been repealed in 1988—and the London Borough where he lived, and reported the judge as having “called for urgent action to block a legal loophole". So too, following the House’s decision on the reference (and despite the anonymity order of which it appears to have been unaware), The Times on 15 December 2000 published an article under the headline “Spinster, 70, tells of rape ordeal in DNA case", naming D as the man “acquitted of the offence” and naming the victim too (she having waived her statutory right to anonymity), giving her account of the crime and its impact upon her life. Shortly afterwards, on 1 February 2001, a weekly magazine, Take a Break, contained a further interview with the victim, again naming both her and D, the publishers again being unaware of the anonymity order. D brought proceedings against the publishers for breach of confidence and infringement of privacy but on 14 June 2001 his claim was struck out by Eady J on the basis that it had no realistic prospect of success—WB v H Bauer Publishing Ltd [2002] EMLR 145.

42.  It is perhaps worth noting that, at the same time as the Court of Appeal heard the reference in D’s case, it also heard R v Michael Weir (unreported, 26 May 2000), an appeal against a conviction for what Lord Steyn called “a particularly brutal murder” where the prosecution’s case had been similarly based on DNA evidence which should have been removed from the database (but which in Weir’s case the trial judge had admitted). Consistently with its opinion on the reference in D’s case, the Court of Appeal allowed Weir’s appeal, ruling that the DNA evidence in his case should similarly have been held excluded. Most regrettably, the prosecution failed in its attempt to appeal this decision too to the House, missing the deadline for submitting the case papers by 24 hours. Weir of course can never be retried for the murder: his trial had resulted in a conviction, not acquittal. But there can be no inhibition in naming him, subject always, of course, to his right to sue in defamation if so advised.

43.  Finally before coming to the arguments, it is pertinent to note various developments in the law relating to the DNA database since the House’s decision on the reference. On 11 May 2001, by virtue of section 82(2) of the Criminal Justice and Police Act 2001, section 64(1) of PACE was replaced by section 64(1A) which permits samples taken from a suspect (even if not charged or if subsequently acquitted) to be retained and used “for purposes related to the prevention or detection of crime or the investigation of an offence or the conduct of a prosecution".

44.  It was this change in the law in 2001 which was unsuccessfully challenged in R (S) v Chief Constable of the South Yorkshire Police [2004] 1 WLR 2196. Baroness Hale of Richmond alone amongst the Appellate Committee thought that the retention and storage of DNA profiles of samples constituted an interference with the appellants’ rights under article 8. But each member of the Committee, Lady Hale included, was quite clear that, even if it did, it was readily justified under article 8(2).

45.  On 4 December 2008, however, the Grand Chamber of the European Court of Human Rights delivered its judgment in the same case, S and Marper v United Kingdom (at App. Nos. 30562/04 and 30566/04), unanimously holding that the indefinite retention of samples and DNA profiles allowed under English law cannot be justified under article 8. As stated at paragraph 125 of its judgment:

“. . . the Court finds that the blanket and indiscriminate nature of the powers of retention of the . . . DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants’ right to respect for private life and cannot be regarded as necessary in a democratic society.”

Since the hearing of the present application, the government have announced measures to be taken to limit the database so as to comply with the Court’s judgment.

46.  It is against this background that the BBC now apply to have the anonymity order discharged. As will have been noted, it purported 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” (the 1973 Rules). These provisions need to be considered in the context of section 36 of the Criminal Justice Act 1972, the section under which references are made:

“36. Reference to Court of Appeal of point of law following acquittal on indictment.

(1) Where a person tried on indictment has been acquitted (whether in respect of the whole or part of the indictment) the Attorney General may, if he desires the opinion of the Court of Appeal on a point of law which has arisen in the case, refer that point to the court, and the court shall, in accordance with this section, consider the point and give their opinion on it.

(2) For the purpose of their consideration of a point referred to them under this section the Court of Appeal shall hear argument—

       (a) by, or by counsel on behalf of, the Attorney   General; and

       (b) if the acquitted person desires to present any   argument to the court, by counsel on his behalf or,   with the leave of the court, by the acquitted person   himself.

(3) Where the Court of Appeal have given their opinion on a point referred to them under this section, the court may, of their own motion or in pursuance of an application in that behalf, refer the point to the House of Lords if it appears to the court that the point ought to be considered by that House.

(4) If a point is referred to the House of Lords under subsection (3) of this section, the House shall consider the point and give their opinion on it accordingly; and section 35(1) of the Criminal Appeal Act 1968 (composition of House for appeals) shall apply also in relation to any proceedings of the House under this section.

(5) Where, on a point being referred to the Court of Appeal under this section or further referred to the House of Lords, the acquitted person appears by counsel for the purpose of presenting any argument to the court or the House, he shall be entitled to his costs …..

. . .

(7) A reference under this section shall not affect the trial in relation to which the reference is made or any acquittal in that trial.

47.  Section 36(4), it will be noted, expressly applies section 35(1) of the Criminal Appeal Act 1968 to the hearing of references by the House of Lords: the House is to be composed in the same way as when hearing appeals. Nothing, however, in section 36 applies to section 35(3) of the 1968 Act which allows the House of Lords, on appeal, to exercise any powers of the Court of Appeal or to remit the case to them.

48.  As for the 1973 Rules (made under section 46 of the 1968 Act and now superseded by comparable provisions in Part 70 of the Criminal Procedure Rules 2005), rules 3(1) and 6 are in point:

“3(1) Every reference shall be in writing and shall (a) specify the point of law referred and, where appropriate, such facts of the case as are necessary for the proper consideration of the point of law; (b) summarise the arguments intended to be put to the court, and (c) specify the authorities to be cited;

Provided that no mention shall be made in the reference of the proper name of any person or place which is likely to lead to the identification of the respondent.

. . .

6. The court shall ensure that the identity of the respondent is not disclosed during the proceedings on a reference except where the respondent has given his consent to the use of his name in the proceedings.”

49.  It is not possible to say now whether or not D’s identity was in fact revealed in open court during the hearing of the reference. However, the bound record of the reference before the House, both on its face and within the petition, named D. And the judgments on the reference, both of the Court of Appeal and of the House of Lords, by fully describing the facts of the case and the date when and court where D had been acquitted, enabled anyone interested to discover with ease the identity of the accused whose acquittal had been the subject of the reference. I turn now to the arguments.

50.  Although D had been represented throughout the reference proceedings and was served with notice of the present application, he was not present or represented upon it. The House was, however, greatly assisted by both written and oral arguments from Lord Pannick QC acting as amicus curiae.

51.  There was some discussion before your Lordships as to whether the 1973 Rules have any application to a reference hearing before the House. On their face they apply only to the Court of Appeal and, despite the implication arising from the anonymity order itself, section 35(3) of the Criminal Appeal Act 1968 has no apparent application to a reference before the House. There was discussion too as to whether the duty purportedly imposed on the court under rule 6 extended beyond the conclusion of the reference proceedings themselves. Rather more fundamentally, there was consideration of whether such duties (or powers) purportedly arising under the 1973 rules were lawfully imposed (or conferred) on the court. Where was the authority to make such rules? On this latter question it is important to have in mind the detailed legal analysis and clear conclusion arrived at by the Judicial Committee of the Privy Council in Independent Publishing Co. Ltd v Attorney General of Trinidad & Tobago [2005] 1 AC 190—see paras 21-68 and in particular para 67:

“Their Lordships … conclude that if the court is to have the power to make orders against the public at large it must be conferred by legislation; it cannot be found in the common law.”