R v Horsham Justices, ex parte Farquharson
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE SHAW,LORD JUSTICE ACKNER |
| Judgment Date | 21 December 1981 |
| Judgment citation (vLex) | [1981] EWCA Civ J1221-4 |
| Docket Number | 81/0516 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 December 1981 |
[1981] EWCA Civ J1221-4
The Master of The Rolls
(Lord Denning)
Lord Justice Shaw
and
Lord Justice Ackner
81/0516
QBF 315/81
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (DIVISIONAL COURT)
(FORBES, J. and GLIDEWELL, J.)
Royal Courts of Justice
MR. MICHAEL BELOFF, Q.C. and MR. ANDREW NICOL (instructed by Miss Harriet Harman, National Council for Civil Liberties) appeared on behalf of the Appellants.
MR. SIMON BROWN and MR. E. COLE (instructed by the Solicitor, H.M. Customs & Excise) appeared on behalf of the Second Respondents.
MR. B. LEARY, Q.C. and MR. S. KADRI (instructed by Messrs. Maxwell Gouldman & Co.) appeared on behalf of the Third Respondent.
MR. M. LEVENE (instructed by Messrs. Levene Phillips Swycher) appeared on behalf of the Fourth and Sixth Respondents.
The First and Fifth Respondents were not represented.
Four men are up on charges of gun-running. They were trying, it is said, to export revolvers, pistols and ammunition from Dover by ship and from Heathrow by air. The customs officers were vigilant. They detained the men and charged them with the offence of exporting, or attempting to export, prohibited goods—with intent to evade the prohibition—contrary to section 56(2) of the Customs and Excise Act 1952. Under it they are liable to a penalty in money or to imprisonment not exceeding two years.
The four men were brought before the magistrates at Horsham. They thought that the offence was more suitable to be tried by a jury. So they proceeded to inquire into it as examining justices. The accused were represented by their lawyers. One of them asked for the committal to be in the "old style", that is, with the witnesses being examined and cross-examined so as to see if the evidence was sufficient to commit them for trial by jury.
When the men first appeared before the magistrates, the local newspapers published, as they were entitled to do, the names and addresses of the accused and the charges against them, see section 8(4) of the Magistrates' Courts Act 1980. The newspapers were, however, restricted from publishing anything more (such as the opening speech or the evidence) unless any one of the men asked for restrictions to be lifted. On the 23rd June, 1981 one of the four did so ask. The others objected. But their objections were useless. Under the statute any one of the accused can ask for restrictions to be lifted, see section 8(2) of the Magistrates' Courts Act 1980. If he asks, the magistrates have no option. They have to make an order permitting all the committal proceedings to be reported as against all the accused, see Reg. v. Russell, ex parte Beaverbrook (1969) 1 Queen's Bench 342.
As a matter of interest, I may say that it is different now. When proceedings are commenced after the 2nd October, 1981 the other accused can object to restrictions being lifted: and the magistrates will only lift them if it is in the interests of justice to do so, see section 1 of the Criminal Justice (Amendment) Act 1981. But as the proceedings were started earlier, that provision does not apply.
On appearances in June and July 1981 the case was adjourned and the men were remanded on bail. No speeches were made and no evidence was given. Arrangements were made for a full hearing to be started on the 16th October, 1981. It was expected to last for four days. But then on the 27th August, 1981 there came into force the Contempt of Court Act 1981. The lawyers for the accused read this Act. They saw in it an opportunity of preventing any report in any of the newspapers about the case. But one of the accused (who had previously asked for restrictions to be lifted) changed his mind and asked for there to be no reporting.
Accordingly when the case started on the 16th October, 1981 the lawyer for the accused made an application that there should be no reporting of the case on this ground as stated in his affidavit:
"The basis of the application…was that the details of the case that were going to be aired in the committal were of a highly prejudicial nature and likely to inflame people's feelings because of the political and social implications…of the case, namely, the political assassination side, which was the aspect of the case likely to attract widespread publicity notwithstanding the fact that such matters were not relevant to the actual charges".
The Bench acceded to the application and made an order "prohibiting reporting of any part of the proceedings until the commencement of any trial hearing".
This order is in such wide terms that it prohibits the reporting of anything, not only of the speeches or evidence, but also of the things which are permitted by the Magistrates' Courts Act, such as the names and addresses of parties or witnesses or the charges or the decision of the magistrates. It put a blanket over everything in the case.
This order upset the newspaper reporters greatly. The very respectable and staid West Sussex County Times on its first page said:
"Towards secret courts
"Last week Horsham magistrates used sweeping new powers available under the Contempt of Court Act to prevent the West Sussex County Times publishing all information concerning charges faced by four defendants…
"The public may still sit through and listen to the committal proceedings, although the Press remains gagged…
"The day of the secret court is barely a step away. It could be just a matter of time before we are plunged into a frightening world of justice administered behind a lock and key".
Being so upset, the newspaper reporters sought the help of the National Union of Journalists. Together they applied to the High Court for judicial review so as to quash the order of the Horsham magistrates. The High Court did so and remitted the matter to the magistrates for reconsideration: but meanwhile prohibited any further reporting of the case. The journalists appeal to this court.
Locus standi
No doubt Mr. Farquharson, the reporter for the West Sussex County Times, has sufficient standing to apply for judicial review, see Reg. v. Russell, ex parte Beaverbrook (1969) 1 Queen's Bench 342. But a question was raised as to the National Union of Journalists. I think they have upon the principle I endeavoured to state in the Blackburn case (1976) 1 Weekly Law Reports at page 559 and in the case of the Fleet Street Casuals (1980) 1 Queen's Bench at page 422 which was endorsed by Lord Diplock in the House of Lords (1981) 2 Weekly Law Reports 722 at pages 737 and 740 when he said:
"It would, in my view, be a grave lacuna in our system of public law if a pressure group, like the federation, or even a single public-spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped".
As there with the federation, so here with the National Union of Journalists. They are, in my view, entitled to come to the High Court to see if the magistrates were entitled to make this order.
Section 4(2)
The Horsham magistrates made this order in reliance on section 4(2) of the Contempt of Court Act 1981 which says:
"In any such proceedings" (that is, legal proceedings held in public) "the court may, where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, or in any proceedings pending or imminent, order that the publication of any report of the proceedings, or any part of the proceedings, be postponed for such period as the court thinks necessary for that purpose".
Does it apply to committal proceedings?
Mr. Beloff for the journalist contended that Parliament has considered committal proceedings as a special kind of proceedings and has made special provisions for them in section 3 of the Criminal Justice Act 1967 now replaced by section 8 of the Magistrates' Courts Act 1980 as amended by section 1 of the Criminal Justice (Amendment) Act 1981. He urged that those special provisions should take priority over the general provision in section 4(2) and render that general provision unnecessary and inapplicable on the accepted principle of statute law that generalia specialibus non derogant—general provisions will not abrogate special provisions. That principle has been repeatedly affirmed in the House of Lords, see Seward v. Vera Cruz (1884) 10 Appeal Cases 59 at page 68 by Lord Selborne and Blackpool Corporation v. Starr Estate (1922) 1 Appeal Cases 27 at page 34 by Lord Haldane.
To see if this principle applies I would first describe the origin of the special provisions. In 1957 there was much concern because, when Dr. John Bodkin Adams was charged with murder, evidence was given at the committal proceedings of earlier deaths which was not given at his subsequent trial. This concern led to Lord Tucker's Committee in 1958 (Command 479). Their report was implemented by section 3 of the Criminal Justice Act 1967. Then in 1980 there was much concern because, when Mr. Jeremy Thorpe and others were charged, one of the accused asked for reporting restrictions to be lifted. The others did not. This concern led to an amendment in the Criminal Justice (Amendment) Act 1981 by which the others could be heard to ask that the...
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