Re B (2006)
| Jurisdiction | England & Wales |
| Judge | THE PRESIDENT OF THE QUEEN'S BENCH DIVISION |
| Judgment Date | 27 October 2006 |
| Neutral Citation | [2006] EWCA Crim 2692 |
| Docket Number | No. 2006/05276/B5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 27 October 2006 |
[2006] EWCA Crim 2692
The President Of The Queen's Bench Division
(sir Igor Judge)
No. 2006/05276/B5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand London WC2A 2LL
A P P E A R A N C E S:
MR A NICOL QC and MR A HUDSON
appeared on behalf of BRITISH BROADCASTING CORPORATION,
TIMES NEWSPAPERS and ASSOCIATED PRESS
MR E LAWSON QC and MR J LAIDLAW
appeared on behalf of THE CROWN PROSECUTION SERVICE
MR P CARTER QC and MR P MYLVAGANAM
appeared on behalf of THE DEFENDANT ZIA UL HAQ
MR E REES QC appeared on behalf of
THE DEFENDANT ABDUL JALIL and OMAR REHMAN
MR D FRIEDMAN appeared on behalf of
THE DEFENDANTS NADEEM TARMOHAMED, JUNADE FEROZE
and QAISAR SHAFFI
Friday 27 October 2006
1. This is an appeal under section 159 of the Criminal Justice Act 1988 by the British Broadcasting Corporation, the Times newspaper and Associated Press against the order made by Butterfield J at the Central Criminal Court (sitting at Woolwich Crown Court) on 12 October 2006, and confirmed on 17 and 18 October. The judge ordered the postponement of reporting in the media of the sentencing hearing against Dhiran Barot until the conclusion of the trial of his co-defendants.
2. This is a very high-profile case. The application is argued before us by Mr Andrew Nicol QC. It is supported by Mr Edmund Lawson QC on behalf of the Crown. His position is that in the particular circumstances of this case there was no basis for concluding that there would be prejudice caused to the future trial by fair and accurate contemporaneous reporting of the sentencing hearing.
3. The appeal is opposed by the co-defendants, some of whom successfully applied to the judge to make the order now under appeal. We hope that we shall be forgiven at this time of the day if we do not set out all the detailed arguments which have been drawn to our attention. We studied the written submissions before we came into court and we have reflected on the oral submissions put before us this afternoon.
4. The appeal is brought against the decision of the trial judge, Butterfield J. He was very familiar with all the issues in the case. We have given close attention to his reasoning and the basis upon which he came to his conclusion. In the end, however, we are not being asked to interfere with the exercise of the judge's discretion. We are invited to the conclusion that, in the particular circumstances of what the judge recognised as a difficult case, his final conclusion was wrong.
5. Mr Nicol invited us to the observations in Ex parte The Telegraph Group plc and others [2001] 1 WLR 1983, 1987, where Longmore LJ giving the judgment of the court said:
"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 �."
That is the test that we shall apply. In doing so we shall not, as was suggested, mechanistically curtail the trial judge's assessment of the possible risk to the integrity of the trial.
6. A further consideration at this stage is that we are not here addressing, nor was the judge, whether there was or had been any abuse of process arising from pre-trial publicity; nor whether the publicity before or during a trial may have produced a miscarriage of justice. In short, we are not looking backwards at facts which can be established, or prejudice which may have materialised, but at a predicted, potential or possible risk of unfairness if publicity of this sentencing hearing were not postponed.
7. We shall explain the facts very briefly. In August 2004 Barot and his co-defendants were arrested in Blackburn, Luton and London. The arrests and subsequent charging of the defendants was extensively reported on 17 and 18 August. The defendants appeared at Belmarsh Magistrates' Court on 18 August. Reports of that hearing were also published in the media. The defendants were remanded in custody. There was a hearing on 25 August by way of video link at the Central Criminal Court. Reports of that hearing were again published in different parts of the media. A preliminary hearing took place at the Central Criminal Court on 3 September 2006. As far as we can gather from the papers reports of that hearing were published less widely, but the British Broadcasting Corporation certainly reported them. Butterfield J was invited to act as the trial judge. He was responsible for case-managing the case to trial and is the trial judge.
8. The indictment contained 23 counts. It was severed for practical management reasons in July 2006. At that stage Barot was due to be tried first, with his co-defendants' trial to follow. Almost exactly three months after that order, on 12 October 2006 Barot pleaded guilty to count 1. The count alleged conspiracy to murder. The particulars of offence alleged that between 1 January 2000 and 4 August 2004 Barot and several identified co-defendants conspired together and with other unidentified persons to commit murder. It was emphasised in the course of his written basis of plea that, in pleading guilty as he did, Barot was making no admission that he had conspired with any of the other named defendants. The Crown made clear that it did not accept what was accurately (if inelegantly) described as the "non-admission". Nevertheless (lest there be any doubt about it), the Crown did not suggest that Barot's plea did anything to interfere with the presumption that the remaining co-defendants were innocent and would remain innocent until proved guilty.
9. The hearing on 12 October turned to the issue of publication and publicity: How much of the proceedings involving Barot either on that day, or at any later date, should be subject to reporting restrictions designed to protect the integrity of the trial of the co-defendants? The judge accepted a submission on Barot's behalf, supported by the Crown, that, Barot having pleaded guilty, he should be sentenced as soon as possible and that sentence should not be postponed until the conclusion of the trial of the co-defendants, which would undoubtedly have been the more normal practice.
10. That decision cannot be, and has not been, impugned. It is suggested that if it had not been made, the issue which arises now would not have arisen. That is the fact, but it does not advance the argument. Its impact is that the sentencing decision was fixed for 1 November and, although it may be postponed for a few days yet, it will take place in the immediate future. That process will involve three interlinked but distinct features. The Crown will open the case against Barot and set out the facts against him in the familiar way. Counsel for Barot will then present his submissions in mitigation. Having reflected on all the material, the judge will then pass sentence. He will explain the basis for his sentencing decision in reasoned observations, capable of being understood by Barot himself and the public at large. All this will now happen before the start of the trial of the co-defendants.
11. On 12 October it was thought that the trial would begin in January 2007. As it happens, Butterfield J was subsequently persuaded (for reasons unconnected with the issues now before us) that the trial should revert back to its original starting date, 17 April 2007. This was the context that it was submitted on behalf of the co-defendants that any reporting in the media of the sentencing hearing should be postponed until after the conclusion of their trial. Butterfield J concluded that there was no substantial risk of prejudice if the fact of and the basis of Barot's plea were reported following the end of the hearing on 12 October. Inevitably, and with every justification in the present circumstances, those facts and the proceedings themselves (save those with which we are now concerned, that is the order prohibiting publication in relation to the sentencing hearing) attracted a great deal of media interest.
12. On 17 October Butterfield J said that he had no concerns arising from the way in which the proceedings on 12 October had been reported. On the other hand, we bear in mind that those proceedings did not extend to a detailed opening of the case against Barot.
13. In a short, concise judgment on 12 October Butterfield J explained his concern about the risk of substantial prejudice to the trial of the remaining co-defendants if his sentencing remarks and the proceedings which culminated in his sentencing decision were to be reported. He explained that Barot would be the first Muslim to be sentenced in the United Kingdom for terrorist crime involving plans to commit mass murder of innocent civilians. As part of a very well understood obligation, now enshrined in statute, he would have to explain the reasons for his sentencing decision. As he correctly noted, none of those observations could provide evidence admissible against any co-defendant. He also recognised that both the sentence and his reasons for it, whatever they were and however expressed, would be likely to be productive of a huge amount of legitimate public discussion and debate �a debate that might well continue for some time �and, depending on future events, might revive from time to time. That consideration provided the critical factor in his decision.
15. As we have emphasised, the judge was plainly familiar with all the essential facts of the case. He recorded in his judgment that the...
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