Attorney General v Random House Group Ltd
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE TUGENDHAT,Mr Justice Tugendhat |
| Judgment Date | 15 July 2009 |
| Neutral Citation | [2009] EWHC 1727 (QB) |
| Docket Number | Case No: IHJ/09/0621 |
| Court | Queen's Bench Division |
| Date | 15 July 2009 |
[2009] EWHC 1727 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Honourable Mr Justice Tugendhat
Case No: IHJ/09/0621
Mr Richard Whittam QC and Mr Clive Sheldon (instructed by the Treasury Solicitors) for the Attorney-General
Ms Catrin Evans (instructed by Group Legal,Random House Group Limited) for the Defendant
Hearing dates: 9 July 2009
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Tugendhat :
Her Majesty's Attorney General applies for an injunction to restrain the further sale of a book entitled “The Terrorist Hunters – the ultimate inside story of Britain's fight against terror” (“the Book”). She does so on the ground that such publication would create a substantial risk that the course of justice in a criminal trial currently proceeding (“the Trial”) will be seriously impeded or prejudiced, within the meaning of the Contempt of Court Act 1981 s.2(2) (“the Act”). The Defendants in the Trial are Abdulla Ahmed Ali and seven co-accused (“the accused”). The Trial is proceeding before Henriques J (“the Trial Judge”) and a jury at Woolwich Crown Court.
The Defendant is the publisher of the Book (“the Publisher”). It opposes the application on the ground that the Book does not create any substantial risk of prejudice to the Trial, and an injunction would be an unnecessary and disproportionate interference with the right of freedom of expression (Art 10 of the European Convention on Human Rights (“the Convention”)). Alternatively, such risk as there may be can be sufficiently addressed by directions to the jury, such as the Trial Judge gave on 24 February, at the start of the Trial, and on 30 June, and any further directions he may gave in the future.
The circumstances of this application include a number of significant matters which together, and in some cases separately, are so unusual that it is difficult to imagine a comparable case happening again. Of particular significance is the timing of the publication in question, just at the close of speeches for the defence, the authoritative position of the author and the scale and gravity of the Trial, involving as it does so many accused on such serious charges.
The trial is a retrial. The accused were arrested in a police investigation called “Operation Overt”. I have been told that it was the largest investigation ever conducted by the police. The investigation was into a plot, known as “the airline plot”, allegedly to use on aircraft improvised explosive devices, some concealed in soft drink bottles. The main count on the indictment is count 1: conspiracy to murder by detonation of improvised explosive devices on board transatlantic passenger aircraft. The first trial lasted from April to September 2008. On 8 September 2008 the jury acquitted Mohammed Gulzar. Ali, Sarwar and Tanvir Hussain were convicted of conspiracy to murder (Count 1A, not involving aircraft). The jury failed to agree on Count 1 in respect of these three accused, and failed to agree on any verdict in respect of the other four accused. The jury was discharged.
That outcome attracted vast publicity in and after September 2008. Much of that publicity is still easily accessible on the internet, including at the most popular websites, such as that of the BBC. On the basis of the publicity the accused sought a stay of proceedings on the ground that they could not have a fair trial. Further details of these matters are set out below.
The Book is written by Andy Hayman “with Margaret Gilmore”, as it is put on the title page. Mr Hayman was the police officer in charge of Operation Overt. He has since retired. At the time he was Assistant Commissioner in the Metropolitan Police Service (“MPS”). His responsibilities included management of the Counter Terrorism Command in London. Of all people, he might be thought the least likely to intend that the trial be impeded or prejudiced. It is not suggested that he has any such intention. It is accepted that the Book has been written and published in good faith. However, the fact that he had those responsibilities means that anything written by him has the credibility of someone at or close to the original source of the information he gives. The weight a reader will accord to anything he says will be much greater than the weight accorded to an author who was not personally involved in the events he recounts.
Margaret Gilmore is a Senior Research Fellow with the Royal United Services Institute. She specialises in homeland security. Before taking that position she was a very experienced journalist
The Book is over 300 pages in length. The Publisher states that it is “the story of how UK police are hunting a new and lethal threat … Commissioner Andy Hayman, CBE, QPM, was … at the centre of every major terrorist investigation – overt and covert – during the dramatic events of 2005 to 2007… [including] the 7 July bomb attacks in London, the attempted bombings of 21 July … and many other cases…” The Book was sent in draft in advance of publication to MI5 and to the Metropolitan Police Authority (“the MPA”). The MPA is separate from the MPS, but is the former employer of Mr Hayman. Changes to the draft were made as a result, and no objection to the book going on sale was outstanding from these two organisations. These matters are referred to on a page at the front of book headed “Acknowledgement”. The references to MI5 and the MPA must add to the weight which a reader will give to the contents.
There are just five pages in chapter 9 of the Book which give rise to this application. Those pages describe events that in fact occurred as part of Operation Overt, although that is not expressly stated, and none of the accused is expressly identified. Before it went on sale, chapter 9 of the Book was not seen by the MPS or the Crown Prosecution Service (“CPS”). The reasons for this are set out in the evidence before me. The parties are not agreed on this point. But that issue is not material to anything that I have to decide.
It is an accident that when copies of the Book were sent to booksellers for sale on 25 June, in the normal course of book publishing, that happened to be just days before evidence in the trial closed on 29 June 2009. Speeches started on 30 June. At the date of the hearing one speech for the defence was being delivered, and two speeches for the defence remained to be made. It was expected that the summing up by the Trial Judge would commence in the week beginning 13 July, and that the jury would retire during the week of 27 July. Verdicts may be expected at some time in August.
The period during which the injunction is sought to run would expire at, or shortly after, the date of the verdicts. Thus it is a period which is not expected to last longer than about 8 weeks.
A copy of the Book was obtained by the MPS and brought to the attention of the prosecution team on Monday 29 June. The Attorney-General's office approached the Publisher. The Publisher explained that by then a number of copies of the Book had been sold by retailers (about 800 as it is now understood), 10,461 had been sent to retailers in preparation for the publication date of 2 July and 3,430 had been sent to export markets. The Publisher was not willing to take voluntary steps to halt sales of the Book. Late on Wednesday, 1 July 2008 Saunders J granted an interim injunction to preserve the position, so far as possible, pending the hearing before me. The terms of that order are not material. Following that, all copies of the Book were removed from sale as required by the Order.
The Trial Judge was informed. On 30 June he reminded the jury of a direction he had given earlier (that their duty was to decide the case only on the evidence), but he did not refer to the Book. The Trial is proceeding. There is no suggestion that any copy of the Book so far sold has come to the notice of any juror. Extracts from the Book were serialised in The Times on 20, 22 and 23 June, and attracted some publicity. But there was no reference to the passages which have given rise to this application.
THE ORDER SOUGHT
The injunction sought is an order to restrain the Publishers from distributing the Book or publicising the contents of pages 258–262.
CONTEMPT OF COURT – THE STRICT LIABILITY RULE
The applicable law is substantially in statutory form. The Act provides, so far as material:
“1 The strict liability rule
In this Act “the strict liability rule” means the rule of law whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so.
2 Limitation of scope of strict liability
(1) The strict liability rule applies only in relation to publications, and for this purpose “publication” includes any …, writing,.. or other communication in whatever form, which is addressed to the public at large or any section of the public.
(2) The strict liability rule applies only to a publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced….
5 Discussion of public affairs
A publication made as or as part of a discussion in good faith of public affairs or other matters of general public interest is not to be treated as a contempt of court under the strict liability rule if the risk of impediment or prejudice to particular legal proceedings is merely incidental to the discussion.”
Injunctions to restrain a contempt of...
To continue reading
Request your trial
-
Attorney General v Associated Newspapers
...the omission of a 'not' in the third sentence of the paragraph after the third break at page 920) was endorsed by Tugendhat J in Attorney General v Random House [2009] EWHC 1727 (QB), [2010] EMLR 9, para.25. 50 But we need not resolve the controversy for this reason. We are sure that, even ......
-
WFZ v The British Broadcasting Corporation
...it. The authorities more generally indicate the criminal standard of proof: see for example Attorney-General v Random House Group Ltd [2009] EWHC 1727 per Tugendhat J at [43], and it appears to have been common ground in Attorney-General v BBC [2007] EWCA Civ 280 that the criminal standard......