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Cite as: [2005] EWCA Civ 739

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		Neutral Citation Number: [2005] EWCA Civ 739
		A2/2005/0635

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PRESTON DISTRICT REGISTRY
(MR JUSTICE POOLE)

Royal Courts of Justice
Strand
London, WC2A 2LL

22 March 2005

B e f o r e :

LORD JUSTICE AULD
LORD JUSTICE CHADWICK
____________________

	CHIEF CONSTABLE OF GREATER MANCHESTER POLICE	Claimant/Respondent
	-v-
	CHANNEL 5 BROADCAST LIMITED	Defendant/Appellant

____________________

(Computer-Aided Transcript of the Stenograph Notes of
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____________________

MR H TOMLINSON (instructed by Simons Muirhead & Burton) appeared on behalf of the Appellant
MS STUDD (instructed by Sandra Pope, Solicitor for the Greater Manchester Police) appeared on behalf of the Respondent
MR P HAVERS QC (instructed by the Treasury Solicitor) appeared on behalf of the Interested Party
____________________

HTML VERSION OF JUDGMENT
____________________

Tuesday, 22 March 2005

LORD JUSTICE AULD: This is an application by Channel 5 Broadcast Limited for permission to appeal an order of Poole J given today restraining Channel 5 Broadcasting from broadcasting a programme entitled "Gangsters", which is scheduled for broadcast this evening at 11.00 pm. The judge, in a short extempore judgment, was of the view that this was a case where there was a substantial risk that justice would be prejudiced in circumstances that I shall mention.

The matter arises out of the killing Mr Desmond Noonan late last Friday evening some distance from a public house which has resulted in very short order in the arrest of a man who is suspected of his murder but who has not yet been charged, and there are investigations in progress that may or may not result in the charge of that man or his release without charge.

Miss Studd, who appears on behalf of the Chief Constable of the Greater Manchester Police who sought the order from Poole J, submits that the investigation is at a delicate stage. It is delicate because in Manchester it is not unknown for potential witnesses to be interfered with by violent offenders. Mr Desmond Noonan, the person who was killed on Friday night, was a member of a notoriously well known family of violent offenders in Manchester. But he was, in this instance, the victim of violence instead of the perpetrator.

The television programme, which is due to be broadcast, subject to these proceedings, is one in which the victim, Desmond Noonan, and his brother, Dominic, parade their violence, interference with witnesses, their indifference to the law and to the subculture of which they claim to be dominant in the Manchester area.

The Chief Constable, in making his application to Poole J to restrain the broadcast of this programme, was concerned that the effect of this programme on those who might be witnesses either for or against the prosecution would be deterred from coming forward. They would be deterred by the dramatic quality of the programme, its vitality and presentation of violence and the threat of violence, from either assisting in the giving of evidence, or prompted to enhance their evidence in support of the prosecution under threats from the Noonan family. Alternatively, they would be deterred from giving evidence because of the fear and the influence that the Noonan family could bring upon them to leave them, the Noonans, to deal with their own and not rely upon the process of law.

The difficulty in the face of the Chief Constable's application is, as I have already indicated, the notoriety of this sort of behaviour in Manchester in serious criminal offences under investigation and proceeding to trial, and the notoriety, in particular, of the Noonan family. And so the question is whether the "reinforcement" - the word used by Mr Tomlinson and Miss Studd - that this programme might give to those who, for one reason or another, might not want to cooperate with the investigation of the matter, is such as, as provided by section 2(2) of the Contempt of Court Act 1981, would create a substantial risk that the course of justice in the proceedings would be seriously impeded or prejudiced. There is no dispute that this is an active proceeding to which that strict rule applies, the person presently in custody having been arrested.

The burden on the Chief Constable even at this early stage is a heavy one. It has been variously described as requiring a court to be satisfied that there must manifestly be a contempt of court for the publication to take place or as a need to prove the case to the criminal standard. Speaking for myself, I somewhat doubt the aptness of the application of the criminal standard of proof to such an exercise. But, however you describe it, it is one of a high standard of persuasion that there will be substantial risk that the course of the justice in the proceedings in question will be seriously impeded or prejudiced.

There is no suggestion by Miss Studd that the work of the jury would occasion specific concern here. The trial would be some months away and it is not said by the Chief Constable that a British jury could not be expected, with the assistance of proper directions from a judge, to cope with what must be well known to many potential jurors in the Manchester area, that threats and intimidation of witnesses is rife in that city.

A notable feature of this case, apart from the general notoriety of such behaviour and of the Noonan family, is the degree of publicity that has immediately followed the killing of Desmond Noonan last Friday night. There have been articles in the local and national press. There has also been an online entry which puts in words the sort of behaviour and bragging of the sort that is a feature of the television programme about the Noonan family.

The judge, in his short judgment, concluded that there was a substantial risk that the course of justice would be prejudiced. He said that he bore well in mind the high standard of persuasion required and the well known criteria set out by Schiemann LJ giving the judgment of the court in Attorney-General v MGM [1997] 1 ALL ER 459 to 460. But he did not, in a sentence or two, spell out why he took the view that, given the circumstances we have mentioned, the broadcast of this programme would materially add to them so as to create a substantial risk of prejudice beyond that which was already inherent in some of the material in circulation in the city.

In my view, the high test of proof is not satisfied here. This is not a case where it could be said, by reason of the possible effect on witnesses one way or the other, that there was manifestly a contempt of court. It is not a case where the matter was established to a sufficiently high persuasive standard for the judge to take the view he did, nor the "reinforcement" to which both counsel referred was of such a nature as to create a substantial risk where none existed before.

For those reasons, I would allow the application for permission to appeal and I would allow the appeal and I would quash the order made by the judge.

LORD JUSTICE CHADWICK: I agree.

The Chief Constable's concern in this case is that there is a serious risk that potential witnesses to the killing of Mr Desmond Noonan who might otherwise come forward within the next few weeks will choose not to do so if the proposed broadcast is allowed to go out this evening.

Given the notoriety that the Noonan family appear to enjoy in the Mersey Bank area of Manchester and the publicity which the programme and its contents have already received in the press over the past few days, I do not see how it can be said - with the degree of conviction required if an injunction in advance of publication is to be granted - that the showing of this piece of so-called investigative journalism will add substantially to the risk which already exists.

The requirements of the statute are not satisfied. No injunction to restrain publication should have been granted.

(Application allowed; Appeal allowed; Respondents do pay the Appellant's costs, such costs to be the subject of a detailed assessment).