R v Sherwood ex parte The Telegraph Group Plc and Others
| Jurisdiction | England & Wales |
| Judgment Date | 03 May 2001 |
| Neutral Citation | [2001] EWCA Crim 1075 |
| Docket Number | Case No: 2001 01956 S1 |
| Court | Court of Appeal (Criminal Division) |
| Date | 03 May 2001 |
[2001] EWCA Crim 1075
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
The Strand, London, WC2A 2LL
Lord Justice Longmore
Mr Justice Douglas Brown and
Mr Justice Eady
Case No: 2001 01956 S1
Mr Nigel Sweeny QC appeared on behalf of the Crown
Mr Michael Tugenhat QC appeared for the applicantsMr Julian Bevan QC appeared for Det Supt Berton
Mr Jonathan Goldberg QC and Mr John Beggs appeared for Det Insp SiggsMr Stephen Batten QC appeared for Det Insp French
Mr Michael Wood QC appeared for Det Con Sherwood
1. On 6 April of this year, Rafferty J made an order in a murder trial at the Central Criminal Court, under s. 4(2) of the Contempt of Court Act 1981, postponing any reporting of the case until after the conclusion of another trial arising out of the same or closely related facts. She was exercising the jurisdiction conferred by Parliament in the following terms:
"(1) Subject to this section a person is not guilty of contempt of court under the strict liability rule in respect of a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith.
(2) In any such proceedings 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 other 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".
Mr Tugendhat QC applied before this court on 11 April, on behalf of various media groups, for leave to appeal that order under the terms of s.159 of the Criminal Justice Act 1988. On that date, at the conclusion of argument, we indicated that we would give leave but that we would dismiss the appeal (with reasons to follow at a convenient date) . The relevant provisions, so far as material, are as follows:
"(1) A person aggrieved may appeal to the Court of Appeal, if that court grants leave, against –
(a) an order under section 4 or 11 of the Contempt of Court Act 1981 made in relation to a trial on indictment; …"
The background to the enactment was that an application had been made to the European Court of Human Rights complaining that there was no procedure whereby the media could challenge any order restricting court reporting under s.4 or s.11 of the Contempt of Court Act 1981: Hodgson, Woolf Productions and N.U.J. and Channel Four Television (1987) 10 E.H.R.R. 503. Once this complaint had been treated as admissible by the European Commission, the United Kingdom government decided to make statutory provision for a right of appeal by 'persons aggrieved' by any such order. That phrase was intended primarily to embrace the media whose freedom of communication was thereby restricted.
3. It is clear that the duty of the Court of Appeal when exercising this jurisdiction is not merely to review the decision of the trial judge who made the order under challenge, but rather to come to its own independent conclusions on the material placed before it: see Ex parte Telegraph Plc [1993] 2 All E.R. 971, 977 ( per Lord Taylor C.J.) .
The order was made by Rafferty J during a trial which involved a charge of murder against a police officer called Christopher Sherwood. The allegation is that shortly after 4.00 a.m. on 15 January 1998 he shot a naked and unarmed man in the bedroom of his flat. The man who died was Mr James Ashley, a suspected drug dealer. He was shot in the course of a raid on premises in Hastings organised by the Sussex Police Force. It was apparently believed that Mr Ashley had a firearm and would thus present a risk to the lives of the officers concerned. This turned out to be based on inaccurate information. Once this current hearing is concluded, the same Judge is due to preside at the trial of three more senior officers, charged in respect of the same incident with 'misconduct in public office'. Those officers, each of whom has been represented before this court, are Det. Supt. Christopher Burton, Det. Insp. Kevin French and Det. Insp. Christopher Siggs. All have been suspended from the Sussex Police Force since shortly after this tragedy occurred.
Until quite recently all four defendants were to be tried together. It became inevitable, however, that an order for severance would have to be made after it emerged that Mr Sherwood was going to rely not only on self-defence but also on what are alleged to be wholesale failures on the part of more senior officers in the Sussex Police Force (including the three defendants identified above) with regard to the planning and execution of the operation in which he was ordered to take part. As a matter of strict logic, it may perhaps seem odd that such considerations could be relevant or admissible when the primary defence to the murder charge would be expected to turn upon the events in the bedroom immediately prior to the shooting and the accused's state of mind when he discharged the weapon. Nevertheless, it is accepted on all sides that this material may be legitimately introduced.
These allegations of failure are bound to overlap to a very considerable extent with the Crown's case against the more senior officers and, indeed, it appears that the Crown and Mr Sherwood will in the course of his trial be making, in effect, common cause against those three defendants. This emerges very clearly from the transcript of the opening of Mr Nigel Sweeney QC, who recited a litany of faults and failures said to underlie the preparations for the raid. He would not have been in a position to offer that degree of assistance or co-operation to Mr Sherwood if the other officers were still to be tried alongside him. It was against that background that he conceded that severance was the proper course. Indeed, Mr Tugendhat himself very fairly recognised, in the course of his submissions, that severance had been 'necessary' on the facts of this unusual case.
It is thus obvious that the three senior officers will be comprehensively criticised by both sides in the murder trial without anyone to defend them or put their point of view. This may very well have the effect of leading the jurors to have considerable sympathy with the defendant, since he is likely to appear as someone put into dangerous and difficult circumstances by his superiors without appropriate guidance or support. In argument, it has been put on the basis that he will be portrayed as the 'poor bloody infantry'—thrust forward to take the blame for others. It is accepted by all concerned that these are quite legitimate tactics from his point of view.
On the other hand, the trial of the other officers is due to take place very shortly after the murder count is disposed of. There will be a different venue (in fact Wolverhampton) and obviously a different jury. Yet, if there has been media coverage on a national basis of Mr Sherwood's case, there is a clear danger that an impression will have become irretrievably embedded in the public consciousness as to where the blame lies for a tragic turn of events. Mr Sherwood's superiors will almost certainly have been made to appear, justly or otherwise, as both incompetent and shabby in their treatment of him – as well as liable to be guilty of the offences with which they are charged.
In making her assessment of whether to make a postponement order, the learned Judge had to proceed on the assumption that any media coverage would be responsible, fair and accurate: see e.g. the approach of Sir Nicolas Browne-Wilkinson V.-C. (as he then was) in Barlow Clowes Gilt Managers Ltd. v. Clowes [1990] T.L.R. 82. In the present case, however, even fair and accurate coverage of Mr Sherwood's trial could easily generate a powerful head of steam in the form of public resentment against them. Quite apart from the individuals themselves, their methods of planning and executing the raid, which they wish positively to defend as appropriate, will have been comprehensively denigrated at the hearing (including by unchallenged expert evidence to be called for the defence) .
Often, when it is necessary to have related trials taking place one after the other, the subject-matter will concern the same defendants but different transactions, as for example in the well known case of R v. Beck, ex parte Daily Telegraph Plc [1993] 2 All E.R. 177. That is a very different situation. Here, to adopt a phrase of Mr Julian Bevan QC (appearing for Det. Supt. Burton), the 'actors' will change but the 'plot' remains essentially the same. In practice, it will not be possible to separate out the action so as, for example, to confine Mr Sherwood's trial to the actual shooting and the later one to events at the planning stage. Another significant distinction between Beck and the present situation is that severance was ordered, in that case, for the administrative purpose of efficiently managing a great many allegations (of child abuse) rather than for avoiding unfairness.
Factors of this kind played a large part in the learned Judge's decision to postpone reporting of the murder trial until the later trial is concluded. It is quite clearly not a decision that she made lightly. All judges nowadays are very conscious of the importance of freedom of communication and of the right (and indeed duty) of the media to report court proceedings. It is a very striking set of circumstances that a police officer could be tried for murder, by shooting, and yet the wider public be prevented from receiving information about the trial while it is taking place – and, moreover, not...
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