European Court of Human Rights

 


AS TO THE ADMISSIBILITY OF

Application No. 24770/94

by ASSOCIATED NEWSPAPERS LIMITED Stewart STEVEN

and Clive WOLMAN

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 30 November 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 25 July 1994 by

Associated Newspapers Ltd., Stewart Steven and Clive Wolman against the

United Kingdom and registered on 4 August 1994 under file No. 24770/94;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The first applicant is the publisher of the newspaper "The Mail

on Sunday". The second applicant, born in 1935, was the newspaper's

editor at the relevant time, and the third applicant, born in 1956, is

the City Editor of the newspaper. The applicants are represented

before the Commission by Ms. K Sanig, solicitor, of Messrs. Mishcon de

Reya, London, and Mr. D. Pannick, Q.C.. The facts of the case as

submitted by the applicants may be summarised as follows.

The particular facts of the case

On Sunday 5 July 1992 The Mail on Sunday published an article

entitled "Common People ... Common Sense ... Common Justice". The

article had been written by the third applicant and described in some

detail the proceedings in the jury room in the case of R. v. NatWest

Investment Bank Ltd and others ("the Blue Arrow trial"). The Blue

Arrow Trial had been a lengthy and complex fraud trial which had

resulted in suspended prison sentences for four of the individual

defendants and the acquittal of one of the individual defendants. In

the article the comments of three of the jurors were given on a series

of criticisms which had been made of juries in such cases.

The article was prefaced by an introduction in which the third

applicant stated that the newspaper was aware that the Contempt of

Court Act made it illegal to "disclose" a jury's deliberations, but

"...having received the transcripts of the Blue Arrow interviews,

we believe these edited extracts should be published for several

reasons:

FIRSTLY, when the jury foreman in the second Guinness trial

disclosed some details of jurors' opinions in a letter to the

Financial Times ... the Attorney General cited them with approval

in Parliament.

SECONDLY, we believe that publication would be sanctioned by the

European Court of Human Rights, not least because jurors have

felt increasingly angry at being denied the right to reply to the

many public criticisms of them and their capabilities.

But, THIRDLY, and most importantly, at a time when the role of

juries is being investigated by the Royal Commission on Criminal

justice, our transcripts show an intelligence and application

which will surprise the jurors' critics. Far from diminishing

respect for our criminal justice system, which the Contempt Act

seeks to uphold, they enhance it. This report is the first real

look at how juries do their work in this country. We publish it

because it shows that justice is available through the jury

system in our courts - something which in recent months has been

in dispute. That is the public interest argument for

publication."

On 16 July 1992 the Court of Appeal allowed the appeals by the

convicted defendants in the Blue Arrow trial as the judge had been

wrong to sum up in regard to one of the issues only.

On 12 November 1992 the applicants were convicted of contempt of

court contrary to Section 8 (1) of the Contempt of Court Act 1981 and

fined £30,000, £20,000 and £10,000 respectively. The Divisional Court

considered the role of the jury in some depth, finding (according to

the headnote to the case in [1993] 3 W.L.R. 74) "that free, unlimited

and unfettered discussion by a jury during their deliberations, was

essential to the proper administration of justice; that in seeking to

protect the secrecy of that discussion, Parliament had intended

"disclose" in Section 8 (1) of the Contempt of Court Act 1981 to be

given a wide meaning ...; and that, accordingly, the [applicants] had

been in contempt of court ...". It was not contested that the

newspaper had received the transcripts of the interviews from a person

who had contacted the jurors through an advertisement in a newspaper

and had paid the jurors for the information which had been obtained,

ostensibly for research for an American university. It had been

pointed out that information about jurors' deliberations could be

disseminated in the United States of America.

On 3 February 1993 the House of Lords, dismissing the applicants'

appeal, held that Section 8 (1) of the Contempt of Court Act 1981

contained an absolute prohibition upon disclosure of particulars of

what was said in the jury room in the course of the jury's

deliberations, whether those disclosures were made by jury members, or

were made by third parties, such as the applicants, by publishing

information already revealed by a jury. The fines were upheld.

Because Section 8 (1) was not ambiguous, and contained an absolute

prohibition on publication of jury deliberations, the House of Lords

did not consider whether Section 8 (1), as applied to the applicants,

contravened Article 10 of the Convention.

Relevant Domestic Law

Section 8 (1) of the Contempt of Court Act 1981 ("the 1981 Act")

provides as follows:

"... it is a contempt of court to obtain, disclose or solicit any

particulars of statements made, opinions expressed, arguments

advanced or votes cast by members of a jury in the course of

their deliberations in any legal proceedings."

COMPLAINTS

The applicants allege violation of Article 10 of the Convention.

They accept that the interference with the rights set out in paragraph

1 was prescribed by law and was for a legitimate purpose, namely the

maintenance of the authority and impartiality of the judiciary, but

consider that it was not necessary in a democratic society. They point

out that Section 8 provides for an absolute offence in the sense that

there is no "saving" for disclosures which are, for instance "necessary

in the interests of justice or national security or for the prevention

of disorder or crime" (wording from Section 10 of the 1981 Act). Even

Section 5 of the Official Secrets Act 1989, which penalises publication

of information from a person who has made an unauthorised disclosure

has requirements that the publisher has criminal liability only if the

information is in fact damaging and he knows or has reasonable cause

to believe that it would be damaging.

They further point out that the question of whether there should

be trial by jury in serious jury trial is a matter of considerable

public concern and debate, and has been so since the 1989 Roskill

Report concluded that complex fraud trials should be tried not by a

jury but by a tribunal composed of a judge and two expert members

because "we do not find trial by a random jury a satisfactory way of

achieving justice in cases so long and complex as we have described.

We believe that many jurors are out of their depth ..." (para. 8.35 of

the Report). The applicants submit, and point to a report of the Royal

Commission on Criminal Justice (July 1993) in support, that Section 8

prohibits research into juries' reasons for their verdicts. The Royal

Commission recommended that research should be permitted by amendment

to the Act.

The applicants underline that the article contained information

which was of considerable importance in enabling people to assess

whether a jury is capable of fairly deciding the issues of fact in a

serious fraud trial. They accept that it is permissible for the United

Kingdom to maintain provisions which penalise the publication of

details of jury deliberations, but contend that there must first have

been a judicial assessment, by reference to criteria prescribed by law,

that the public interest in publication (according to the principles

of freedom of expression set out in Article 10) is not sufficiently

strong to outweigh the public interest in imposing a criminal penalty.

In this case, they consider that the United Kingdom must establish a

pressing social need for the absolute bar on publication of information

about jury deliberations irrespective of the public interest in

publication.

Finally, the applicants note that Section 8 has its absolute

character as a result of amendments made in the House of Lords and

which the Government unsuccessfully opposed.

THE LAW

The applicants allege violation of Article 10 (Art. 10) of the

Convention which provides, in its relevant parts, as follows:

"1. Everyone has the right to freedom of expression. This

right shall include freedom ... to receive and impart information

and ideas without interference by public authority and regardless

of frontiers. ...

1. The exercise of these freedoms, since it carries with it

duties and responsibilities, may be subject to such formalities,

conditions, restrictions or penalties as are prescribed by law

and are necessary in a democratic society ... for the protection

of the reputation or rights of others, for preventing the

disclosure of information received in confidence, or for

maintaining the authority and impartiality of the judiciary."

The Commission agrees with the applicants that the fines imposed

in the present case amounted to an interference with the applicants'

freedom of expression, and also agrees that the interference was

"prescribed by law". In connection with the question whether the

interference pursued a legitimate aim, the Commission finds, as indeed

the applicants accept, that the aim was to maintain the authority and

impartiality of the judiciary. It would add that the term "judiciary"

comprises the entire machinery of justice, including the proper

functioning of the jury system (cf., Eur. Court H.R., Sunday Times

judgment of 26 April 1979, Series A no. 30, p. 34, para. 55). It is

an important element of that system that jurors should express

themselves freely in the jury room without fear of outside disclosure

of their views and opinions. To this extent the law may also serve to

protect the rights of individual jurors themselves.

The Commission recalls that the European Court of Human Rights

has summarised the major principles of its case-law on the "necessity"

test in Article 10 (Art. 10) of the Convention as follows:

"(a) Freedom of expression constitutes one of the essential

foundations of a democratic society ... Freedom of expression,

as enshrined in Article 10 (Art. 10), is subject to a number of

exceptions which, however, must be narrowly interpreted and the

necessity for any restrictions must be convincingly established.

(b) These principles are of particular importance as far as the

press is concerned. While it must not overstep the bounds set,

inter alia, ... for `maintaining the authority of the judiciary',

it is nevertheless incumbent on it to impart information and

ideas on matters of public interest. Not only does the press have

the task of imparting such information and ideas: the public

also has a right to receive them. Were it otherwise, the press

would be unable to play its vital role of `public watchdog'.

(c) The adjective 'necessary', within the meaning of Article 10

para. 2 (Art. 10-2), implies the existence of a 'pressing social

need'. The Contracting States have a certain margin of

appreciation in assessing whether such a need exists, but it goes

hand in hand with a European supervision, embracing both the law

and the decisions applying it, even those given by independent

courts. The are therefore empowered to give

the final ruling on whether a 'restriction' is reconcilable with

freedom of expression as protected by Article 10 (Art. 10).

(d) The [Convention organs'] task, in exercising [their]

supervisory jurisdiction, is not to take the place of the

competent national authorities but rather to review under Article

10 (Art. 10) the decisions they delivered pursuant to their power

of appreciation. This does not mean that [their] supervision is

limited to ascertaining whether the respondent State exercised

its discretion reasonably, carefully and in good faith; what

[they have] to do is to look at the interference complained of

in the light of the case as a whole and determine whether it was

'proportionate to the legitimate aim pursued' and whether the

reasons adduced by the national authorities to justify it are

'relevant and sufficient'."

(Eur. Court H.R., Sunday Times (No. 2) judgment of 26 November

1991, Series A no. 217, p. 29, para. 50).

These principles have been re-confirmed by the Court recently in

its judgment in the case of Jersild v. Denmark (Eur. Court H.R.,

judgment of 23 September 1994, Series A no. 298).

The applicants lay great stress on the "absolute" nature of

Section 8 (1) of the 1981 Act in that it does not permit the domestic

authorities to undertake a balance between the different interests.

The Commission recalls that the European Court of Human Rights

has pointed out that the supervision of the Convention organs extends

not merely to the decisions of the domestic courts but also to the law

which they apply. In the context of the present case, this means that

the Commission cannot look solely at the "absolute" nature of the

offence created by Section 8 (1) of the Contempt of Court Act, but must

also consider the reasons for the passing of that provision. The

"absolute" nature of the offence must be considered in the context of

the State's margin of appreciation in setting up its legislation,

subject always to the Convention organs' supervision.

In connection with the legislation as such, the Commission notes

that the jury system in the United Kingdom is founded on the premise

that jurors will express themselves freely in the jury room in the

knowledge that what they say will not be used outside. If a juror

thought that what he said could subsequently be made public, it is

possible that he would bear in mind the future use to which his words

might be put, and not just the case in hand. The unlimited prohibition

on disclosure is then seen to be an inevitable protection for jurors

and can therefore be regarded as "necessary" in a democratic society

which has decided to retain this particular form of jury trial.

In connection with the application of the legislation to the

applicants, the Commission notes that the Royal Commission on Criminal

Justice has recommended that research should be permitted, and accepts

that it must be difficult to evaluate a jury's contribution to serious

fraud trials when no form of research can be made into a jury's

methods. The Commission is not, however, called on in the present case

to assess the compatibility with Article 10 of Section 8 in

circumstances involving a conviction for research into jury methods as

such; nor is the Commission concerned with a case where the interests

of justice could be said to require the disclosure of the jury's

deliberations. The present case relates rather to revelations of the

jury's deliberations in one specific case of considerable public

interest, including statements by the jurors concerned about the

opinions and attitudes of other members of the jury. The applicants

were well aware that the information they published was sensitive, and

should have been aware that its disclosure could put other individual

jurors in an invidious position.

The Commission finds, in the circumstances of the present case,

that the interference with the applicants' freedom of expression did

not take the State beyond the margin of appreciation which it enjoyed.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)