Re BBC
| Jurisdiction | England & Wales |
| Judge | Lord Burnett of Maldon |
| Judgment Date | 13 June 2018 |
| Neutral Citation | [2018] EWCA Crim 1341 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 201800497/C4 |
| Date | 13 June 2018 |
[2018] EWCA Crim 1341
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WORCESTER CROWN COURT
HHJ Juckes QC
T20170027
Royal Courts of Justice
Strand, London, WC2A 2LL
THE RIGHT HONOURABLE The Lord Burnett of Maldon
LORD CHIEF JUSTICE OF ENGLAND AND WALES
THE HONOURABLE Mr Justice Stuart-Smith
and
THE HONOURABLE Mr Justice Nicklin
Case No: 201800497/C4
and
Ben Silverstone (instructed by BBC Legal Department) for the Applicant
Jacob Hallam QC (instructed by Crown Prosecution Service) for the Respondent
The Defendant did not attend and was not represented
Hearing date: 23 May 2018
This is an application by the British Broadcasting Corporation (“BBC”) (supported by Associated Newspapers, Guardian News and Media, Mirror Group Newspapers, News Group Newspapers, the Press Association and Times Newspapers) for permission to appeal a reporting restriction order imposed by His Honour Judge Juckes QC at Worcester Crown Court on 22 January 2018, the first day of the defendant's trial (“the Order”). The Order was made under section 4(2) of the Contempt of Court Act 1981 (“the 1981 Act”). It prohibited publication of any report of the trial until after the jury returned its verdict. The BBC's application is made under section 159 of the Criminal Justice Act 1988. The defendant has been notified of the BBC's application, but he has not sought to participate in the proceedings.
The jury convicted the defendant on 2 February 2018 following which the judge discharged the Order. Nevertheless, the BBC seeks to challenge the Order as a matter of principle. It is common ground that an appeal under section 159 can be made even after the reporting restriction order has been discharged: ex parte Central Independent Television [1991] 1 WLR 4, at 9E per Lord Lane CJ.
The Criminal Proceedings
The defendant was a surgeon. He was charged with a single count of fraud contrary to section 1 of the Fraud Act 2006. The prosecution alleged that, between 9 May 2011 and 1 September 2011, he had dishonestly exaggerated his professional experience in order to obtain an appointment as a consultant surgeon at the Alexandra Hospital in Redditch (part of the Worcestershire Acute Hospital Trust (“the Trust”)), a post he took up in August 2011. The work he undertook included bowel surgery and the use of keyhole surgical techniques.
Colleagues of the defendant soon raised concerns about his competence. He was said to be performing surgery poorly and there were incidents where procedures went wrong. In 2012, the Trust undertook an initial investigation into events which included six incidents and a death. The results showed stark contrasts in the complication rates for the defendant's patients when compared with other surgeons performing similar operations. Ultimately, the defendant was made subject to an independent surgical review by the Royal College of Surgeons. He was suspended and then dismissed in 2015. There was a police investigation into a number of deaths of his patients.
Concerns over the defendant's competence and the Trust's investigation were reported in the media.
i) On 19 June 2013, a report appeared in the Hereford & Worcester section of the BBC News website under the headline: “Worcestershire surgeon Sudip Sarker investigated by trust”. It quoted a statement from the Trust that the defendant had been suspended in October 2012 after “a number of concerns” had been raised about him and that three deaths had been referred to a coroner.
ii) On 21 February 2014, a Sky News report appeared on its website under the headline: “Surgeon faces police probe over deaths”. It reported that a police investigation had been opened into the deaths of a number of patients under the care of the defendant. A senior police officer confirmed that the families of the patients who were the subject of the inquiry had been informed and would be kept updated on the investigation. The Trust issued a statement indicating that the records of those who had undergone a major operation at the hands of the defendant had been reviewed. Where there were concerns the relevant individual had been recalled for further assessment. The extent of the concern can perhaps be gauged by the fact that a designated telephone number and email address were given for patients to contact the Trust.
iii) On 15 July 2015, an article appeared on the website Worcester News under the headline: “Worcester cancer surgeon Sudip Sarker investigated over patient deaths fired”. The article was accompanied by a large photograph of the defendant with the caption: “Colorectal cancer surgeon Sudip Sarker”. The article contained references to both the police and Trust investigations.
iv) On 1 November 2016 an article appeared on the Birmingham Mail website under the headline: “Scandal-hit Trust accused of death rates ‘cover-up’ at Alexandra Hospital.” Although the article centred on wider issues concerning the Trust, it included the following words which appeared under a large photograph of the defendant:
“… a three-month investigation by the Birmingham Mail has now discovered the [mortality rate] data was potentially flawed as it included patients of Sudip Sarker, a now shamed surgeon who was sacked for having DOUBLE the death rate of colleagues… A police investigation into a number of his patient deaths is continuing.”
The prosecution evidence in the defendant's trial focussed on the representations that he made prior to his appointment and which the prosecution said were false. The subsequent events that had been the subject of media reporting were not relevant. The jury would not learn about the later concerns surrounding the defendant's competence as part of the trial. The defendant's counsel was concerned that knowledge of the inquiry and police investigation would be prejudicial.
That concern led to the defence application to the Judge for reporting restrictions under section 4(2) of the 1981 Act.
Section 1 identifies “the strict liability rule” which treats conduct that tends to interfere with the course of justice in particular legal proceedings as a contempt of court. Section 2 sets out the scope of the rule:
“(1) The strict liability rule applies only in relation to publications, and for this purpose “publication” includes any speech, writing, programme included in a programme service 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.
(3) The strict liability rule applies to a publication only if the proceedings in question are active within the meaning of this section at the time of the publication.
…”
The circumstances in which criminal proceedings are active are set out in Schedule 1. Section 3 provides a defence of innocent publication or distribution. Section 4 is entitled “Contemporary reports of proceedings” and provides:
“(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 part of the proceedings, be postponed for such period as the court thinks necessary for that purpose.
…”
The Reporting Restriction Order
The application for an order was made at the end of general pre-trial ‘housekeeping’ and just before the jury were empanelled. Counsel for the defendant indicated that he would be seeking postponement of reporting. Copies of press reports (including the articles summarised in paragraph 5 above) were handed to the judge. Counsel then submitted:
“…there [was] initially consideration as to whether [the defendant] caused or contributed to the deaths of certain people, so it would have been big news, I would imagine, in this area about the Trust… [T]here's been a drip of press coverage, rightly so, dealing with all the turns and twists of the disciplinary and so on. But what you do find in a lot of these, and you can see it straight away, is these stories that appeared on the internet initially do link immediately to more on the story which is past stories… I know you Honour will give the usual warning [to the jury] about going on the internet, but our fear is if this is published – these proceedings – it will inadvertently link to other stories connected to it, and therefore may prejudice or expose this jury to that”.
We have set out this submission in full because it makes clear the concern: a contemporaneous on-line report of the trial would have links to other stories of the sort illustrated in paragraph 5 above. If the jury clicked through they would encounter prejudicial material.
No immediate ruling was made and the jury were empanelled. Questions had been asked of the jury in waiting to select a jury whose members had no prior knowledge of the defendant. The judge gave conventional opening directions to the jury including an express prohibition on carrying out any research of any kind themselves. The jury were then sent home for the day and the judge returned to the application for reporting restrictions. Counsel for the defendant identified that the application was being made under section 4(2) and from the wording of the section indicated that the test was whether publication would create a...
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