The British Broadcasting Corporation For A Warrant For Service Of A Petition To The Nobile Officium
| Jurisdiction | Scotland |
| Judge | Lord Carloway |
| Court | High Court of Justiciary |
| Date | 05 January 2012 |
| Docket Number | XM24/11 |
| Published date | 10 January 2012 |
| HIGH COURT OF JUSTICIARY XM24/11 [2012] HCJ 2 | |
| OPINION of LORD CARLOWAY in the application by The BRITISH BROADCASTING CORPORATION, Applicants; for a warrant for service of a petition to the nobile officium _____________ |
Applicant: Clancy QC, DG Hamilton; Burness LLP
Respondent: Shand QC, AD ; Crown Agent
5 January 2012
[1] On 15 December 2011, after a trial in the High Court in Glasgow, Kimberley Hainey was found guilty of the murder of her infant son Declan. She is due to be sentenced on 12 January 2012. There was considerable public interest in the trial. This was, at least partly, because of the unusual feature that the infant had lain dead at Ms Hainey's house for many months before the discovery of the crime. The applicants aver that they have a duty to report the proceedings at the trial stemming from the content of the Royal Charter establishing them as a public service broadcaster.
[2] In advance of the verdict, the applicants had approached the Crown Office "requesting" four items: (i) a photograph of Ms Hainey; (ii) a photograph of the infant, whilst alive and healthy; (iii) photographs of the inside of the house; and (iv), as an alternative to (iii), video recordings of the inside of the house. Although it is not stated in the petition, the items sought were all productions in the prosecution. What the applicants want are copies of these productions for use in the media. The Crown refused the request stating that it was not appropriate to grant it and claiming a potential infringement of copyright.
[3] The applicants aver that the Crown's refusal infringes their right of freedom of expression contained in Article 10 of the European Convention on Human Rights; notably, presumably, the right to receive and impart information without interference from public authorities. They state that any copyright would rest with the police and that section 30(2) the Copyright, Designs and Patents Act 1988, which does not apply to photographs, would permit publication if it were accompanied by a suitable acknowledgement. The applicants aver that a Devolution Issue arises in terms of section 57(2) of the Scotland Act 1998.
[4] The applicants have presented a petition to the nobile officium of the High Court of Justiciary based upon the refusal of the Crown to provide copies of the items specified. What is sought in the prayer is a declarator that the Lord Advocate's refusal to provide the items is incompatible with Article 10 and hence unlawful under section 57(2). The prayer also seeks an order against the Lord Advocate for the "production" of these items.
[5] The issue for the court is the competency of the petition. Although, on one view, all that the court would have to be satisfied of at this stage is that there is a colourable case for its competency, it was accepted that the arguments presented would not be advanced were they to be rehearsed at a later stage. The court was therefore...
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