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

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52.  Whether the 1973 Rules are to be regarded as “legislation” sufficiently clearly conferring power to make non-publication orders in respect of open court proceedings contra mundum may be doubted. Although not referred to at the hearing, section 82 of the Criminal Justice Act 2003 provides to my mind an instructive contrast with the 1973 Rules. Section 82 provides for restrictions on publication in the interests of justice with regard to hearings by the Court of Appeal of prosecutors’ applications for orders to quash acquittals and order retrials:

“82(1) Where it appears to the Court of Appeal that the inclusion of any matter in a publication would give rise to a substantial risk of prejudice to the administration of justice in a retrial, the Court may order that the matter is not to be included in any publication while the order has effect.

. . .

(3) The Court may make an order under this section only if it appears to it necessary in the interests of justice to do so.”

Unlike the position regarding the 1973 Rules, no one could question the legitimacy of section 82 and any contra mundum orders made under it.

53.  To my mind, however, for reasons to which I shall shortly come, it is not in fact necessary to resolve any doubts about the vires or scope of the 1973 Rules one way or the other. Similarly it is unnecessary to reach any concluded view upon whether section 11 of the Contempt of Court Act 1981 (the 1981 Act) would have allowed the making of the anonymity order, another question briefly debated before your Lordships:

“11. In any case where a court (having power to do so) allows a name or other matter to be withheld from the public in proceedings before the court, the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purpose for which it was so withheld.”

Here too it may be doubted whether, unless the anonymity order was in any event authorised by rule 6 of the 1973 Rules, section 11 could supply the necessary power.

54.  The reason why all these questions seem to me in the end unimportant is that on any view the House was bound at the time this anonymity order was made (3 weeks after the coming into effect of the Human Rights Act 1998), as it is bound today, to act compatibly with any Convention rights arising (section 6 of the 1998 Act) which in this context involved and involves striking the appropriate balance between D’s article 8 privacy rights on the one hand and the BBC’s (and for that matter everyone else’s) article 10 rights to freedom of expression and communication on the other. This essentially is what the House decided in In Re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593 (“S“) where Lord Steyn, giving the only reasoned speech, said at paragraph 23:

“The House unanimously takes the view that since the 1998 Act came into force in October 2000, the earlier case law about the existence and scope of inherent jurisdiction need not be considered in this case or in similar cases. The foundation of the jurisdiction to restrain publicity in a case such as the present is now derived from Convention rights under the ECHR. This is the simple and direct way to approach such cases. In this case the jurisdiction is not in doubt. This is not to say that the case law on the inherent jurisdiction of the High Court is wholly irrelevant. On the contrary, it may remain of some interest in regard to the ultimate balancing exercise to be carried out under the ECHR provisions.”

Lord Steyn had already described at paragraph 17 what he meant by “the ultimate balancing test” (as to “the interplay between articles 8 and 10”), in the following four propositions derived from Campbell v MGN Ltd [2004] 2 AC 457:

“First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual cases is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each.”

55.  The facts of S were very different from those of the present application but both concerned orders to the world at large forbidding the identification of the defendant in criminal proceedings having regard to the interests of privacy, there for the benefit of the accused’s 8-year old son; here, of course, for the benefit of the respondent to a section 36 reference.

56.  In upholding the trial judge’s variation of his own order in ultimately permitting the defendant’s identification, Lord Steyn at paragraph 30 said this:

“A criminal trial is a public event. The principle of open justice puts, as has often been said, the judge and all who participate in the trial under intense scrutiny. The glare of contemporaneous publicity ensures that trials are properly conducted. It is a valuable check on the criminal process. Moreover, the public interest may be as much involved in the circumstances of a remarkable acquittal as in a surprising conviction. Informed public debate is necessary about all such matters. Full contemporaneous reporting of criminal trials in progress promotes public confidence in the administration of justice. It promotes the values of the rule of law.”

At paragraph 34 he added:

“. . . it is important to bear in mind that from a newspaper’s point of view a report of a sensational trial without revealing the identity of the defendant would be a very much disembodied trial. If the newspapers choose not to contest such an injunction, they are less likely to give prominence to reports of the trial. Certainly, readers will be less interested and editors will act accordingly. Informed debate about criminal justice will suffer.”

57.  Whether in the present case the House correctly struck the balance at the time of making the anonymity order in October 2000 is altogether less important than the question whether it is now appropriate to continue it or discharge it and it is upon that question that I propose to focus. Just before doing so, however, I should perhaps note that there can be no question here as to the House’s power to make such an order if the ultimate balancing exercise requires it. Mr Millar QC’s submissions to the contrary—largely based upon an enlarged Court of Appeal’s recent judgment in In Re Trinity Mirror Plc [2008] QB 770—are in my opinion misconceived. In Re Trinity Mirror was concerned with the Crown Court’s powers to make anonymity orders (in particular under section 45(4) of the 1981 Act). As pointed out at para 22 of the Court of Appeal’s judgment, the Crown Court’s powers are more restricted than those of the High Court which arise under section 6 of the 1998 Act read in conjunction with section 37 of the 1981 Act (as in S itself). The full width of the section 37 power, to grant injunctions whenever just and convenient, is no less available to your Lordships’ House than to a High Court judge.

58.  The thinking underlying rules 3 and 6 of the 1973 Rules (whether sanctioned by primary legislation or not) is not difficult to understand. Section 36 of the 1972 Act for the first time enabled the Attorney General to seek clarification of the criminal law by the higher courts, in effect by way of advisory opinions, notwithstanding the accused’s acquittal. Section 36(7) made plain that, whether the ruling in the respondent’s case had been right or wrong, the reference was not to affect his acquittal. The rule-makers clearly thought that this clarification should not be achieved at the defendant’s expense as to an extent it would be if publicity of the reference appeared to bring his acquittal into question. It was therefore to be heard anonymously.

59.  Such an approach, however, seems to me to produce some curious anomalies. Suppose another alleged rapist had been similarly acquitted but not himself made respondent to an Attorney General’s reference. Following the ruling in D’s case there would be nothing to prevent the media from pointing out that it was now perfectly clear that the other acquitted man should in fact have been convicted. Or take, indeed, the quashing of Mr Weir’s murder conviction which, the media are now free to suggest, in the light of the ruling on D’s reference, involved a plain miscarriage of justice. More troubling still, but for the reference in D’s case and the anonymity order made upon it, there would be no bar to the media publicising the full details of D’s Old Bailey trial and acquittal, including his identity. Now, however, if the anonymity order stands, it operates retrospectively to cloak in anonymity even any description of the trial proceedings themselves. The reference, in short, appears to place D actually in a better position in terms of future anonymity than he would otherwise have been in.

60.  Let it be assumed, however, that the anonymity order could be varied to operate on the basis that it attaches only to the reference itself and not to the original trial process. In this event, of course, the BBC would be free to report D’s acquittal and to assert that by virtue of some nameless later authority it now appears that the excluded DNA evidence should after all have been admitted and D therefore convicted. That, submit the BBC, is the very least that they should now be entitled to broadcast.

61.  Lord Pannick, however, submits that the anonymity order was properly made and should remain in full force. What essentially he argues is that the retention of D’s sample and DNA profile was always unlawful under domestic law so as to violate D’s article 8 rights, a conclusion made clearer still by the recent Grand Chamber judgment in S and Marper. There is, he points out, no domestic law now in force such as allows of any article 8(2) justification for the retention and use of samples and, indeed, this will remain so until Parliament legislates to comply with the Court’s judgment. To discharge the anonymity order would, submits Lord Pannick, substantially risk compounding the violations of D’s privacy rights which have already occurred. The whole focus of the proposed broadcast would be on the unlawfully retained DNA and the way it serves to establish D’s identity as the person guilty of the rape. The House should continue to bar it.

62.  There is a further reason too, Lord Pannick argues, why the House should not discharge the anonymity order so as to permit the BBC to call into question the correctness of D’s acquittal on the rape charge. This would, submits Lord Pannick, offend against the presumption of innocence enshrined in article 6(2) of the Convention and be irreconcilable with the Strasbourg jurisprudence—reflected, for example, in paragraph 37 of the Court’s judgment in Minelli v Switzerland (1983) 5 EHRR 554:

“In the Court’s judgment, the presumption of innocence will be violated if, without the accused’s having previously been proved guilty according to law and, notably, without his having had the opportunity of exercising his rights of defence, a judicial decision concerning him reflects an opinion that he is guilty. This may be so even in the absence of any formal finding; it suffices that there is some reasoning suggesting that the court regards the accused as guilty.”

A judgment on the present application discharging the anonymity order would, Lord Pannick submits, suggest that your Lordships regard D as guilty of the rape, his acquittal notwithstanding.

63.  In my opinion there is nothing in this article 6 argument: by discharging the order your Lordships would be saying no more than that is it perfectly proper for the BBC if they wish (and no doubt at the risk of a defamation action) to call D’s innocence into question. Indeed it is difficult to see why the position here is any different from that of a court, say, refusing to strike out as hopeless a claim for damages by the victim of a rape against her alleged attacker notwithstanding his acquittal—or, say, the Court of Appeal acceding to a prosecutor’s application under Part 10 of the 2003 Act to re-try an acquitted defendant. Nor is there any sensible risk of the BBC’s proposed broadcast here compromising the fairness of any possible retrial of D even supposing one were eventually to be sought and permitted. One could hardly be further from proceedings which are “active” within the meaning of section 2(3) of the 1981 Act.

64.  The balance to be struck is, I repeat, solely between the respective article 8 and article 10 rights here in play.

65.  What weight, then, should be attached to the BBC’s article 10 right to free expression? Whilst Lord Pannick naturally recognises the high value ordinarily attaching to the freedom of the media to report on court proceedings and to discuss matters of obvious public interest such as arise here, he nevertheless suggests that very little weight should be given to that right in this case. Why, he asks rhetorically, cannot the BBC broadcast their programme simply referring to D as D without actually identifying him?

66.  The short answer to that submission is in my opinion to be found in paragraph 34 of Lord Steyn’s speech in S (quoted at paragraph 56 above): such a programme would indeed be “very much disembodied” and have a substantially lesser impact upon its audience.

67.  As for the possibility of varying the anonymity order to allow D to be named relative to his original trial and acquittal but not as the subject of the reference (the BBC’s fall-back position—see paragraph 60 above), there appears to me little merit in arriving at such a compromise. If D is to be deprived of his favoured position of immunity from all future identification and the BBC are to be permitted to name him relative at least to the unsatisfactory circumstances of his acquittal, then the interests of free expression surely outweigh such limited residual advantage as D would enjoy from being unnamed relative only to the reference.

68.  Indeed, Lord Pannick’s submissions notwithstanding, I have great difficulty in attaching any substantial weight to D’s article 8 rights suggested to arise from the unlawfulness of the process by which he originally came to be identified as the alleged rapist. To say that his article 8 rights were interfered with by the unlawful retention and use of his sample is one thing; to assert that in consequence he must be entitled to anonymity in respect of the subsequent criminal process is quite another. Lord Pannick’s argument comes close to impugning the correctness of the House’s decision on the reference and, indeed, to asserting that, until the UK’s database is compliant with the Grand Chamber’s decision in S and Marper, any use made of it will of itself necessarily constitute an unlawful violation of article 8. That cannot be right. Given, as the House noted on the reference itself, that the Convention does not prohibit the use of unlawfully obtained evidence, it would be inconsistent then to regard such use as compounding the unlawfulness.

69.  Thus to my mind D’s best argument for asserting a continuing article 8 right to anonymity is that suggested by my noble and learned friend Lord Hope of Craighead at paragraph 22 of his opinion. I agree with Lord Hope that the presumption of innocence is of relevance not only under article 6 (in respect of which, as stated above, I conclude D can have no complaint here) but also under article 8 insofar as it bears on D’s reputation. That said, for the reasons already given, on the particular facts of this case I find it difficult to regard D’s right to his reputation as outweighing that of the BBC to imperil that reputation by their proposed broadcast, a broadcast of undoubted public interest.

70.  There are other considerations too which broadly favour the BBC’s case. First, that the victim herself waived her right to anonymity. It would seem somewhat odd if a broadcast now at liberty to name the victim (whose identity the legislation would have allowed her to withhold) cannot blame the accused (whose identity enjoys no legislative protection) the merits of whose acquittal the BBC desire and are entitled to put in question. Sadly the victim died in 2002 but there can be little doubt that she would have applauded the BBC’s intention to carry the case further. Secondly, D’s own failure to respond in any way to this application. Thirdly, the fact that, as described above, D’s name has already come to be published on more than one occasion in connection not only with his trial but also with the reference.

71.  For my part, therefore, I have no doubt whatever that the balance here falls in favour of the BBC’s right to free expression. There can be no possible justification for the reference placing D in a more advantageous position as to publicity than he would have been in had the critical point of law been settled in someone else’s case I would accede to this application and discharge the anonymity order.

LORD NEUBERGER OF ABBOTSBURY

My Lords,

72.  I have had the benefit of reading in draft the speeches of my noble and learned friends, Lord Phillips of Worth Matravers, Lord Hope of Craighead and Lord Brown of Eaton-under-Heywood. I agree with them that this application should be granted.

73.  I would like to discuss the meaning and effect of rule 6 and the proviso to rule 3 of the 1973 Rules. For that purpose, I shall assume that those rules apply to an appeal to this House from the Court of Appeal’s ruling on a reference by the Attorney General under section 36 of the 1972 Act, and that this House’s order of 23 October 2000 was made under those rules.

74.  It seems to me that the basis of D’s argument for invoking rule 6 and the proviso to rule 3 of the 1973 Rules is simply not within the meaning and purpose of those rules. In the light of both their language and their context, I consider that the purpose of those rules is relatively limited. In 1973, as now, almost every criminal trial was held in public and the defendant could be identified freely, irrespective of his ultimate conviction or acquittal. If he was convicted and he appealed, his appeal would also normally be in public, and, again, he could be identified freely, irrespective of the outcome of the appeal.

75.  When the Attorney General was given the right to refer to the Court of Appeal a point of law, arising out of an acquittal on indictment, by section 36, the 1973 Rules were introduced to regulate such references. The only explanation for the inclusion of rule 6 and the proviso to rule 3 is that it was thought appropriate to reduce the risk of the defendant receiving further publicity (over and above that resulting from his trial at which he had ex hypothesi been acquitted) as a result of the section 36 reference. However, it cannot have been intended that, in terms of risk of publicity, a defendant would be better off as a result of a section 36 reference than he would have been if there had been no such reference. It was therefore necessary to frame the rules relating to the defendant’s identification with some care. Hence, rules 3 and 6 are limited to prohibiting the identification of the defendant in the section 36 reference itself or “during the proceedings on a reference". In that connection “during the proceedings” must, in my view, refer to the course of the proceedings in court.

76.  If one examines the facts of this case and the purpose of the two rules in that light, it seems to me impossible to justify the continuation of the order made by your Lordships’ House on 23 October 2000, at least as against the BBC in connection with the programme it wishes to broadcast. Although D was apparently identified in the section 36 reference at least when it came before this House, this does not appear to be a case where the defendant’s identity, or indeed the trial, came to the attention of the party seeking to use and disseminate the information as a result of the defendant having been identified either in the reference following his acquittal or in the proceedings pursuant to that reference.

77.  The evidence shows that D’s case was identified by Mentorn Media, the independent production company commissioned by the BBC to look for criminal cases which had resulted in “controversial acquittals” and which might be the subject of a TV programme. D’s case was selected as promising material. This was said in the evidence in support of this application to have been in the light of “the very serious nature of the offence which had been committed", “the fact that the crime remained unsolved", and “the media coverage that the case received” both “at the time of [D’s] acquittal” and “at the time of the publication of the judgment of the House of Lords in the case". It therefore does not appear that Mentorn Media came to know, or were even reminded, of this case as a result of D having been named in the section 36 reference or having had his identity disclosed during the hearing of the reference or the appeal. So the mischief against which rules 3 and 6 are directed simply does not seem to be in play here.

78.  Having said that, I accept that the attraction of making a programme about D’s case has been enhanced as a result of the decision of this House in December 2000. Accordingly, it can be said that the section 36 reference has increased the likelihood of D being identified more widely as the possible perpetrator of the crime in question. However, I do not consider that such an argument brings D’s case within the scope of rules 3 and 6. As already mentioned, those rules are concerned with the identification of a defendant in the reference documentation and at the hearing of the reference. So far as the section 36 reference is concerned, it was the media coverage of the decision of this House to which the BBC’s evidence refers, and no mention of D’s identity was contained in the opinions or the report see Attorney General’s Reference (No 3 of 1999) [2001] 2 AC 91.

79.  It was a combination of (a) the appalling nature of the crime, (b) D’s trial and acquittal in June 1999, (c) the contemporaneous media coverage including the description of the crime and the identification of D, (d) the December 2000 decision of this House, and (e) the resultant further media coverage of that decision, all of which were perfectly properly in the public domain, which led to the conclusion that it was worth making a programme about D’s case. Quite apart from the wording of rules 3 and 6, the 1973 Rules cannot have been intended, in my view, to protect a defendant on facts such as these. There would have been no protection if the December 2000 decision of this House had been on precisely the same point but in a different case (which could easily have happened). The fact that this House reached its decision on the facts of D’s case does, I accept, make his case a slightly more promising subject for a TV programme, but that must have been very marginal factor, if it counted at all.

80.  Even without taking article 10 into account, it seems to me that it is wrong to treat rules 3 and 6 as having a particularly wide reach. In general, an alleged criminal who is involved in proceedings, of whatever nature in whatever court, is subject to the risk of publicity. That is an inevitable consequence of the administration of justice being public and transparent. The protection which can and should be afforded to an acquitted defendant whose case leads to a section 36 reference is, therefore, of necessity, limited. It is understandable and practicable to stipulate that he should not be identified in the written and oral aspects of the reference, but it would be wrong in principle and practice to go much further. It cannot be right that a defendant can avoid being named in connection with a crime of which he has been acquitted simply because part of the reason the case is of interest is that it included a successful section 36 reference following his acquittal. Indeed, in my view, it cannot be right that he can avoid being named in such circumstances where the section 36 reference was partly responsible for the case coming to the attention of the media or anyone else.

81.  Quite apart from the limited effect of the language of rules 3 and 6, this conclusion accords with principle and practicality. The notion that justice should be administered publicly is well established, and its effectiveness should not be constrained save for compelling reasons. To defeat the present application, D would, I think, have to establish that it was enough that the report of the section 36 decision enabled him to be identified as the acquitted defendant in the particular case, and/or that the publication of the section 36 decision brought his case to the BBC’s attention. Neither proposition can be right in principle, as, once the decision on the section 36 reference was reported, the information was in the public domain. Anyway, neither proposition is within the natural meaning of the 1973 Rules. The second proposition would also be very difficult to establish in many cases, and could lead to arguments both as to the facts and as to the degree to which it would have to be established that the section 36 reference, as opposed to other aspects of the case, brought the case to the attention of the person who wishes to publicise it.

 
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