Attorney-General's Reference (No 3 of 1999), Re British Broadcasting Corporation

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD WALKER OF GESTINGTHORPE,LORD PHILLIPS OF WORTH MATRAVERS,LORD BROWN OF EATON-UNDER-HEYWOOD,LORD HOPE OF CRAIGHEAD,LORD NEUBERGER OF ABBOTSBURY
Judgment Date17 Jun 2009
Neutral Citation[2009] UKHL 34

[2009] UKHL 34

HOUSE OF LORDS

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

Appellants:

Gavin Millar QC

Anthony Hudson

(Instructed by BBC Litigation Department)

Advocate to the Court:

Lord Pannick QC

David Pievsky

(Instructed by Treasury Solicitors)

LORD PHILLIPS OF WORTH MATRAVERS

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 These rules have now been replaced by similar rules in Part 70 of the Criminal Procedure Rules 2005 (S.I. 2005 no. 384).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.

LORD HOPE OF CRAIGHEAD

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...

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