Jersey Unreported Judgments

Sexual touching - privacy argument

[2023]JRC097

Royal Court

(Samedi)

20 June 2023

Before     :

R. J. MacRae, Esq., Deputy Bailiff

The Attorney General

-v-

Reece Williams

Ms C. L. G. Carvalho, Crown Advocate.

Advocate A. E. Binnie for the Defendant.

Mr A Sibcy for the Jersey Evening Post and Bailiwick Express

JUDGMENT

THE DEPUTY BAILIFF:

1.        The Defendant has been indicted for two offences of sexual touching of an older child, the alleged offences having taken place on public transport in November 2022. 

2.        The Defendant was charged on 23 November 2022, and the case was sent to the Royal Court for indictment on 27 January 2023.  No plea has been entered owing to the Defendant's mental health assessment.  It has been suggested, although not determined, that the Defendant does not have the capacity to participate effectively in any trial.  A consultant psychiatrist has produced a report for the Court dated 30 March 2023, which describes the Defendant as a "vulnerable adult" and says that Court hearings "should be held in private to avoid any further publication on social media" and recommends an admission to a specialised in-patient unit for further assessment of the Defendant's mental health under Article 62 of the Mental Health (Jersey) Law 2016 ("the 2016 Law").

3.        The Defendant was remanded in custody from 23 November 2022 until 24 February 2023, whereupon he was granted conditional bail, later revoked on 17 March 2023.  On 31 March 2023, the Defendant was remanded to an approved establishment under Article 62 of the 2016 Law, and since 13 April 2023 he has resided at a specialist clinic in the United Kingdom for assessment.  His remand status in that unit will be reviewed regularly in accordance with the 2016 Law. 

4.        On 17 March 2023, an Interim Order was made by the Court, absent hearing argument, to the effect that the case be heard in private.  However, that was only a holding order, as it is clear from the Act of Court that counsel were to attend upon the Bailiff's Judicial Secretary to fix a date for the hearing of the application for the matter to be continued to be heard in private.  This hearing took place on 2 and 3 May 2023.  Prior to the hearing, on 1 May 2023, the Court directed the Crown to convene various representatives of the media to attend the hearing, if they wished, in order to make submissions as they wished.  The Court received helpful written submissions from Mr Andy Sibcy and Mr James Filleul on behalf of the Jersey Evening Post and the Bailiwick Express, and Mr Sibcy attended the hearings on 2 and 3 May 2023, made oral submissions and also filed further written submissions.  Crown and defence also filed written and made oral submissions.  The Crown's position, in short, was that all hearings in this matter should take place in public in accordance with the usual rule for criminal proceedings.  This stance was supported by the Jersey Evening Post and the Bailiwick Express.  The defence submitted that all future hearings of this case, including any ultimate trial, should be heard in private, even a trial by jury of the allegations the Defendant faces on indictment.

5.        Bearing in mind the presumption in favour of open justice, which has long been recognised in criminal proceedings in Jersey, it is appropriate to consider the defence arguments on the facts of this case and the relevant legal principles. 

Open justice

6.        As to the starting point, in Jersey Evening Post v Al Thani and Others [2002] JLR 542, Bailhache, Bailiff, giving the judgment of the Royal Court, said in a civil case involving an application under the Trusts (Jersey) Law 1984:

"14  The principle of open justice has not yet found statutory expression in Jersey but we have no doubt that it forms part of our law. Indeed it has been given judicial expression in numerous judgments of the court. Like most great principles, however, it is subject to qualifications. In Scott (or Morgan) v. Scott, Viscount Haldane, L.C. stated ([1913] A.C. at 437-438):

"While the broad principle is that the courts of this country must, as between parties, administer justice in public, this principle is subject to apparent exceptions, such as those to which I have referred. But the exceptions are themselves the outcome of a yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done.....As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration. The question is by no means one which, consistently with the spirit of our jurisprudence, can be dealt with by the judge as resting in his mere discretion as to what is expedient. The latter must treat it as one of principle, and as turning, not on convenience, but on necessity."

15  The speeches of their Lordships in Scott were considered in a recent judgment of this court in G v A where Page, Commr. usefully summarized the general principles (2000 JLR at 59-60):

"(a) The general principle, beyond doubt, is that all proceedings should take place in public in open court.

 (b) The constitutional, legal and practical importance of this principle is such that it should not be displaced except for compelling reasons.

 (c) Whether to order proceedings in camera is something that must be determined in accordance with principle, and not on the basis of what the judge happens to consider convenient or reasonable. Potential embarrassment on the part of those who have to give evidence is not a sufficient reason, of itself, to justify a hearing in camera.

 (d) The question (of principle) that has to be asked can be expressed in various ways but was put succinctly by the Lord Chancellor, Viscount Haldane, in Scott (or Morgan) v. Scott ... as follows ([1913] A.C. at 439): 'I think that to justify an order for hearing in camera it must be shown that the paramount object of securing that justice is done would really be rendered doubtful of attainment if the order were not made.'

There are several classes of case in which it is well established that in camera hearings are often necessary. But they are no more than illustrations of this wider principle.

(e) The test is a strict one and I quote again from Viscount Haldane ([1913] A.C. at 438):

'But the burden lies on those seeking to displace . . . [the general rule as to openness] in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration. The question is by no means one which, consistently with the spirit of our jurisprudence, can be dealt with by the judge as resting in his mere discretion as to what is expedient. The latter must treat it as one of principle, and as turning, not on convenience, but on necessity.'"

16  The aim therefore is to do justice to the parties before the court. That aim must not be stultified by a rigid application of the principle that justice must be done in public. Yet the principle of open justice should not be displaced as a matter of convenience or expedience, or to avoid embarrassment to one or more of the parties, but only if it is necessary to do so in the interests of justice."

7.        Although Al Thani was a civil case, the principles enunciated referred to above plainly apply to criminal proceedings too.  This is a criminal case and the observations made below only extend to criminal cases.  It is not necessary for there to be a revisitation of the particular exceptions identified in case law where civil proceedings may legitimately be determined in private with redacted judgments being, if appropriate, published thereafter, such as directions hearings in trust cases, public law children cases, certain private family proceedings, particularly those involving children, and other exceptions established by case law. 

8.        Al Thani was decided prior to the incorporation into domestic law of Article 6 of the European Convention of Human Rights.  This occurred with the coming into force of the Human Rights (Jersey) Law 2000.  The judgment in Al Thani noted the forthcoming implementation of Article 6 at paragraph 28.  Article 6/1 of the Convention provides:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."

9.        It is noted that Article 6 provides for the right of an individual for their case to be heard publicly and not in secret.  This is particularly important in criminal proceedings.  However, in this case, the Defendant wishes, if he can, to waive that right in favour of his case being determined privately.  Article 6 seems to permit such a course in circumstances where the "the protection of the private life of the parties so require".  Indeed, in Al Thani, the Court held at the end of paragraph 28 of the judgment that that phrase was "sufficient justification, absent any compelling reason to the contrary, for resolving to sit in private to hear this kind of application under art 47 of the Trust Law".  However, as I have observed, these are criminal proceedings. 

This case

10.      Having referred to the principle of open justice, I turn to the facts of this case.  The concerns of the Defendant can be summarised in this way.  There have been various postings and comments on social media connected to this case which have been extremely hostile to the Defendant.  Warnings given by the States of Jersey Police given to one or more persons responsible for posting this material, are said to have been of little or no effect.  Members of the public, hostile to the Defendant, have attended hearings in this case.  Immediately after the alleged assaults, it is said that the Defendant was assaulted by another.  When proceedings against that individual were discontinued by the prosecution in April, there was widespread support for that decision on social media.   The Defendant's mental health has been detrimentally affected by this conduct - this has been independently confirmed by medical evidence.  Dr Briggs, a consultant psychologist, says the Defendant has significant impairment in intellectual functioning, scoring within the extremely low range across assessment, likely meeting the criteria for intellectual disability and for autism.  He is vulnerable.  Similar evidence is given by other medical professionals.  Those responsible for supporting the Defendant, including the Defendant's key worker, social worker and speech and language therapist, all support the view that it is in the Defendant's best interests in respect of his physical and mental health, for hearings to take place in private. 

11.      The Crown argue that this is not the case where it is 'necessary' for the proceedings to be held in private, notwithstanding the concerns ventilated on behalf of the Defendant.

Hearings in private

12.      The Court possesses a power to order that hearings take place in private, both under its inherent jurisdiction and in the exercise of the Court's case management powers.  In respect of the latter, in D v AG [2022] JRC 228, the Court observed at paragraphs 13 onwards:

"13.    However, we are satisfied that the Magistrate's Court does, in the exercise of its case management powers, have the power to order that a sentencing hearing takes place in private.  We make this finding for the following reasons.

14.  First, under the Law, the Magistrate's Court has extremely wide case management powers.  Pursuant to Article 2 of the Law, the 'overriding objective' is to ensure that criminal cases are dealt with 'justly'.

15.      'Justly' is considered in Article 3 of the Law under the title 'Implementation of the overriding objective'.  Dealing with cases justly includes, inter alia, 'recognising the right of a defendant, particularly those granted under Article 6 of the European Convention on Human Rights...'.

16.    Further, under Article 3(2)(c), dealing with a case justly also includes dealing with it in ways that take into account 'the severity of the consequences for the defendant and for others that are affected...'.

17.  The obligation of the Court under Article 7 of the Law is to 'further the overriding objective by actively managing cases in criminal proceedings'.  Pursuant to Article 9, the Court 'may give any direction and take any step actively to manage a case unless that direction or step would be inconsistent with any rule made under this Law or provision of this Law or any other enactment'.  Article 9(2) goes on to provide a number of examples of case management powers including the power on the part of the Court to give directions at hearings 'in public or private'.  Such a directions hearing would not on its face extend to a substantive hearing such as a sentencing hearing, but it is plain from the Rules made under the Law that hearings of application, for admission of bad character or hearsay evidence may take place in private."

13.      The Court went on to set out the terms of Article 6 and concluded that the Magistrate's Court (the same would apply to the Royal Court), when exercising its case management powers, had the power to order that a hearing, including a sentencing hearing, be heard in private.  The case of D v AG was a case involving a defendant who committed the offence in question when he was a child.  Different principles apply in such circumstances, and reference in D v AG was made at paragraph 26 to 29 of the provisions of the United Nations Convention on the Rights of the Child which were of relevance in that case.  The "General Comment" in respect of children's rights states that every person under the age of eighteen at the time of the alleged commission of offence must be treated in accordance with the rules of juvenile justice and, pursuant to Article 40 of the Convention, such a person must have their privacy 'fully respected at all stages of the proceedings'. 

14.      Those principles have no application on these facts as the Defendant was not a child at the time of the alleged offence.

15.      The defence in this case referred to the Articles of the Criminal Procedure (Jersey) Law 2018 ("the 2018 Law"), referred to in the case of D v AG above, and submitted in reliance upon those and other provisions contained in the same part of the 2018 Law that it is in the interests of justice for future hearings in this case to be held in private.  It was submitted that this was an exceptional case warranting the Court making such a finding.  Further, the risk presented to the Defendant's health and welfare was also said to extend to members of his family; one, in particular, who no longer felt safe in her home owing to the hostility referred to at paragraph 10 above. 

16.      Reference was made to the decision of the Royal Court in L v AG [2019] JRC 223, in which the Court held that the hearing of an application to be removed from the notification requirements under the Sex Offenders (Jersey) Law 2010 ("the 2010 Law") should, if the applicant discharged the burden upon them of showing it was necessary for such an order to be made, be heard in private with a subsequent judgment anonymised.  Having set out the principles in Al Thani, the Court made the following observations:

"12.      The purpose of the Sex Offenders Law is to protect potential victims from sexual harm, and not to further penalise the offender, by ensuring that the police are aware of the whereabouts of all serious sex offenders, knowledge which is of obvious assistance in the detection of offenders and the prevention of crime (see paragraph 25 of AG v Roberts).  Knowledge that a person is registered with the police may also dissuade him or her from committing further offences, and thus the measures contribute towards a lower rate of re-offending in sex offenders (see paragraph 14 of AG v Roberts).

13.      It is no part of the scheme to encourage vigilantism through publicity of applications of this kind, putting the safety of the Applicant and in particular innocent parties at risk; indeed, that would increase the burden upon the paid and honorary police, who have already deployed resources at the time of the Applicant's conviction in regular patrols of the area in which the Applicant's wife lives. It also seems to the Court that in a small community such as Jersey, the potential for vigilantism is greater than otherwise might be the case.

14.      For these reasons, the Court agreed to sit in private, but it accepts that there is a legitimate interest in the public and the legal profession knowing how applications of this kind are treated by the Court, and therefore, this judgment will be issued in an anonymised form."

17.      In the subsequent case of A v AG [2020] JRC 004, the Royal Court reviewed recent decisions of the Court under the 2010 Law, including L v AG.  The Court made the following observations:

"13.      Sexual offences, particularly those involving children, attract a good deal of media attention.  Some of this is not always helpful.   Increasingly, those who have committed sexual offences also come under the scrutiny of self-appointed protectors of the public interest whose focus is perhaps understandably more on the victims of the crimes than on the need to reduce the risk of further offending by the offenders in question.  This risk is not invariably best addressed in our view by publication of the names of the offenders and the fact of their being subject to the notification requirements.  Indeed, it is important that there is some attention given to the need for the community to recognise that once an offender has served his or her sentence, both the community and the offender and his family need to move forward.  The caveat for the Court in relation to applications of the present kind is that it must be satisfied on the balance of probabilities, as the legislation provides at Article 5(6), that the risk to the public or to particular individuals does not justify the continuation of that offender remaining subject to the notification requirements.

14.      The Court cannot disregard this further aspect of these applications.  It has to make an assessment of the facts against the statutory test in the knowledge that if there is further offending of a similar kind, there is a high chance of publicity which might, rightly or wrongly, damage public confidence in the administration of justice, with comments being made on the basis of the facts of the new offending, not recognising that the facts put before the Court on applications of the present kind were very different.  It is desirable that judgments setting out the reasons of the Court when dealing with these applications are published so that the public can understand why the Court makes the order it does.

15.      Although the Practice Direction provides that the Court will consider at the first hearing whether the case should be heard in public or in private, in our view, applications under the Law may be distinguished from the Al Thani approach in this limited respect - the burden should not lie in any sense with the offender seeking an order for a hearing in camera, requiring him to prove that it is the only way in which justice could be done.  The public interest in these cases is wider than those issues which are contemplated by Al Thani and includes the factors we have set out above.  Accordingly, in our judgment, the Court should be more willing than hitherto to sit in private for applications of this kind and although no applicant can be entirely certain that that will be the outcome, it would be unsurprising if sitting in private for these cases became the norm.  That would generally be followed by publication of a judgment in anonymised form."

18.      These decisions related to certain civil proceedings and, in my judgment, have no read across to criminal proceedings.

Restrictions on publication

19.      The power of the Court under Article 89 of the Criminal Procedure (Jersey) Law 2018, to postpone publication of criminal proceedings, is limited.  So far as it is relevant, it provides:

"89      Contemporary reports of criminal proceedings

(1)     In criminal proceedings, the court may, where it appears to the court to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, or in any other criminal proceedings pending or imminent, order that publication in Jersey of the proceedings or of any part of the proceedings, be postponed for any period that the court thinks necessary for that purpose.

(2)     A court may make an order under paragraph (1) of its own motion or on application by any of the parties and, where a court makes an order under paragraph (1), it may give any directions that appear to the court to be necessary for the purposes of the order.

.....

(5)     Where a court has made an order under paragraph (1), if a report is included in a publication or relevant programme in contravention of that order the following shall be guilty of an offence and liable to a fine -

(a)     where the publication is a newspaper or periodical, any proprietor, editor or publisher of the newspaper or periodical;

(b)     where the publication is a relevant programme, any body corporate which provides the service in which the programme is included and any person having functions in relation to the programme corresponding to those of an editor of a newspaper;

(c)     in the case of any other publication, the person who publishes it.

(6)     This Article shall be in addition to, and not in derogation from, any other enactment or rule of customary law with respect to the publication of reports and proceedings of any court."

20.      Accordingly, although without prejudice to the Court's power to make an order for hearing(s) to take place in private in exceptional cases where it is necessary to do so, the statutory power under Article 89 is limited to making such an order where it is 'necessary for avoiding a substantial risk of prejudice to the administration of justice' in the proceedings or other criminal proceedings.  A common example of this is the Court making an order preventing any publication in relation to the first trial in the case of a defendant facing two or more trials until the conclusion of the final trial.  However, such trials are still held in public - it is merely that publication of the proceedings is postponed.

21.      I note the recently published English guidance on Reporting Restrictions in the Criminal Courts published in September 2022, which provides a helpful structured approach for judges, which requires the judge to:

(i)        check the nature of the proposed restriction and its legal basis;

(ii)       consider whether the proposed restriction is necessary in the interests of justice;

(iii)      if restrictions are necessary, consider how far should they go;

(iv)      invite representations from the media;

(v)       commit any order, which may be given orally, into writing;

(vi)      notify the media of any restrictions imposed; and

(vii)     keep the matter under review - and hear any representation made by the media if the media were not heard before the order was made.

This guidance should be adopted, particularly in respect of the representations by the media.

22.      The guidance in respect of criminal trial says:

"The court has an inherent or implicit power to regulate its own proceedings, however, and may hear a trial or part of a trial in private, but this is the most extreme measure, to be adopted only in exceptional circumstances, where the hearing of the case in public would frustrate or render impractical the administration of justice.  The test is one of necessity. The fact, for example, that hearing evidence in open court will cause embarrassment to witnesses does not meet the test for necessity."

23.      The guidance gives examples of circumstances which might justify hearing a criminal case in private, which include situations where the nature of the evidence, if made public, would cause harm to national security, e.g. by disclosing sensitive operational techniques, or identifying a person whose identity ought to be protected, e.g. an undercover police officer.  The application should be supported by evidence and the test to be applied in all cases is the same.  Disorder in Court may justify the clearance of the public gallery, but representatives of the media, who are unlikely to have participated in such a disorder, should normally be allowed to remain.

24.      Mr Sibcy observed that, although the Court has an inherent jurisdiction to sit in private, which is well established, it does not have inherent jurisdiction to restrict reporting.  Such a power, it if exists, can only be found in statute.  There, of course, are other statutory provisions not referred to above, which prevent reporting which may identify complainants in sex cases and children, e.g. the Criminal Justice (Anonymity in Sexual Offence Cases) (Jersey) Law 2002, which prima facie provides that complainants in sexual offence cases are entitled to lifelong anonymity.  In Khuja v Times Newspapers Limited and Others [2017] UKSC 49, Lord Sumption, giving the judgment of the majority (five of the seven Law Lords) said:

"14. The principle of open justice has, however, never been absolute. There have been highly specific historic exceptions, such as the matrimonial jurisdiction inherited from the ecclesiastical courts, the old jurisdiction in lunacy and wardship and interlocutory hearings in chambers, where private hearings had become traditional. Some of these exceptions persist. Others have been superseded by statute, notably in cases involving children. More generally, the courts have an inherent power to sit in private where it is necessary for the proper administration of justice: .... Traditionally, the power was exercised mainly in cases where open justice would have been no justice at all, for example because the dispute related to trade secrets or some other subject-matter which would have been destroyed by a public hearing, or where the physical or other risks to a party or a witness might make it impossible for the proceedings to be held at all. The inherent power of the courts extends to making orders for the conduct of the proceedings in a way which will prevent the disclosure in open court of the names of parties or witnesses or of other matters, and it is well established that this may be a preferable alternative to the more drastic course of sitting in private: see R v Socialist Worker Printers and Publishers Ltd, Ex p Attorney General..... But the court retains the power which it has always possessed to allow evidence to be given in such a way that the identity of a witness or other matters is not more widely disclosed in open court, if the interests of justice require it. Where a court directs that proceedings before it are to be conducted in such a way as to withhold any matter, section 11 of the Contempt of Court Act 1981 allows it to make ancillary orders preventing their disclosure out of court. Measures of this kind have consistently been treated by the European Court of Human Rights as consistent with article 6 of the Convention if they are necessary to protect the interests of the proper administration of justice: Doorson v The Netherlands (1996) 22 EHRR 330, para 71; V v United Kingdom (1999) 30 EHRR 121, para 87; cf A v British Broadcasting Corpn [2015] AC 588, paras 44-45 (Lord Reed). But necessity remains the touchstone of this jurisdiction.

15. More recently, two factors have combined to broaden the scope of the exceptions to the open justice rule and the frequency of their application. One is the growing volume of civil and criminal litigation raising issues of national security. This calls for no comment on the present appeal. The other is the recognition of a number of rights derived from the European Convention on Human Rights, which the courts as public authorities are bound by section 6 of the Human Rights Act 1998 to respect. The Convention right most often engaged in such cases is the right under article 8 to respect for private and family life. Article 8 rights are heavily qualified by the Convention itself, and even when they are made good they must be balanced in a publication case against the right to freedom of expression protected by article 10. But other Convention rights may occasionally be engaged which are practically unqualified, such as the right to life under article 2 and to protection against serious ill-treatment under article 3: A v British Broadcasting Corpn [2015] AC 588. These countervailing interests have become significant, not just because they have come to be recognised as legal rights, but because the resonance of what used to be reported only in the press and the broadcasting media has been greatly magnified in the age of the internet and social media."

25.      Lord Sumption went on to consider balancing the claimants' Article 8 rights in that case against the Article 10 rights usually asserted by the media.  At paragraph 16, in respect of the media, he said:

"It has been recognised for many years that press reporting of legal proceedings is an extension of the concept of open justice, and is inseparable from it. In reporting what has been said and done at a public trial, the media serve as the eyes and ears of a wider public which would be absolutely entitled to attend but for purely practical reasons cannot do so."

26.      At paragraphs 17 and 18 he observed:

"17. The limits on permissible reporting of public legal proceedings are set by the law of contempt, the law of defamation and the law protecting the Convention rights.

18. The inherent power of the Court at common law to sit in private or anonymise material deployed in open court has never extended to imposing reporting restrictions on what happens in open court.  Any power to do that must be found in legislation."

27.      However, such legislation includes consideration, where appropriate, of Convention rights enshrined into domestic law.  Lord Sumption went on to set out the terms of Articles 8 and 10 of the European Convention on Human Rights, namely the right to respect for private and family life and freedom of expression respectively.  He noted at paragraph 21 of the judgment that the English Courts had now effectively recognised a qualified common law right of privacy, and at paragraph 22 that the cause of action for invasion of a claimant's right to private and family life was relatively new to the common law and originated from the incorporation of the Convention into domestic law.  The same principles apply in Jersey and may be a significant factor to take into account when considering applications such as these.  At paragraph 22, Lord Sumption went on to consider what Lord Steyn said in Re S [2004] UKHL 47, in respect of the Articles 8 and 10 of the Convention:

"First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test."

28.      Lord Sumption's following observation is germane to this case:

"23. These two decisions [Re S and Campbell v MGN [2004] AC 457] are the principal English authorities for an approach to the balancing exercise which is fact-specific rather than being dependent on any a priori hierarchy of rights. On some facts, the claimant's article 8 rights may be entitled to very little weight. On some facts, the public interest in the publication in the media may be slight or non-existent. Nonetheless, in deciding what weight to give to the right of the press to publish proceedings in open court, the courts cannot, simply because the issues arise under the heading "private and family life", part company with principles governing the pre-emptive restraint of media publication which have been accepted by the common law for many years in the cognate areas of contempt of court and defamation, and are reflected in a substantial and consistent body of statute law as well as in the jurisprudence on article 10 of the Human Rights Convention."

29.      Nonetheless, it is clear from the authorities, including the decision in Khuja, that it will be a rare case where a claimant's Article 8 rights result in non-publication of proceedings or (as any relief would need to be proportionate) the specific aspects of proceedings which infringed the claimant's rights.

30.      In Re Trinity Mirror and Others [2008] EWCA Crim 50, the English Court of Appeal said that an anonymity order made to protect a defendant who had admitted child pornography offences, because of the risk that his children would suffer bullying, was "inapt".  It is clear from the decision in Trinity Mirror that the inability of the Crown Court to grant injunctive relief in most circumstances does not extend to the English High Court which, of course, has a similar broad jurisdiction of the Royal Court and is entitled to grant injunctive relief wherever it is just and convenient to do so.  As the President of the Queen's Bench Division, Sir Igor Judge, said at paragraph 22 in that case:

"The essential question would not be the existence of the power, but the very limited and exceptional circumstances in which it may be appropriate for it be exercised."

In any event, the legislative power permitting injunctive relief to be granted so as to restrict reporting would, in most circumstances, arise by virtue of alleged breaches of rights protected by Article 8 of the Convention. 

31.      As to the interplay between the various relevant rights provided for under the Human Rights legislation, the practice guidelines issued in September 2022 referred to above, provides:

"As public authorities under the Human Rights Act, courts must act compatibly with Convention rights, including the right to freedom of expression under Article 10 ECHR and the right to a public hearing under Article 6 ECHR. However, both Article 10 and Article 6 permit of exceptions. In some cases, the right to privacy under Article 8 may be engaged and need to be weighed in the balance. However, any restriction on the public's right to attend proceedings in the courtroom and the media's ability to report them must fulfil a legitimate aim under these provisions and be necessary, proportionate and convincingly established.  It is for the party seeking to derogate from the principle of open justice to produce clear and cogent evidence in support of the derogation. (R v Central Criminal Court ex parte W, B and C [2001] 1 Cr. App. R 2)."

32.      The submission made on behalf of the media in this case was that, for better or worse, in a free and open society in the digital age, run of the mill commentary on social media regarding Court proceedings is inevitable.  However, as identified on behalf of the media, adverse comment by ordinary members of the public directed at the Defendant can tip into vigilantism which may lead to criminal conduct and, depending upon the orders made by Court, may amount to contempt of Court.  Further, there were no concerns ventilated by the defence in relation to the established Jersey media, who generally understand the need for fair and accurate reporting.  Mr Sibcy argued that there was nothing exceptional about the Defendant's vulnerabilities, and that many defendants suffered from challenges to their mental health which may be exacerbated by adverse attention on social media.  It was said on behalf of the media that allowing a derogation from a principle of open justice in this case would open the floodgates to others to make similar applications, with a consequent risk to the principles of open justice.

33.      All parties drew my attention to the decision of the English Court of Appeal in ex parte British Broadcasting Corporation [2016] EWCA Crim 12, a judgment given by the President of the Queen's Bench Division, Sir Brian Leveson.  The first two paragraphs of the judgment provide the background to that case and, in some respects, this case:

"It is beyond argument that members of the public have long held and expressed views about all aspects of the criminal trial process, including the guilt of those facing trial, the gravity of the offending and the appropriate sentence. In the privacy of their homes, or in social gatherings, expressions of such views are part of the discourse of life. What passes in such discussions does not in any way affect the trials about which comment is made and those who might be affected (such as jurors) are unlikely to be involved. In any event, all jurors receive a warning in every trial not to discuss the case they are trying outside their number or allow anyone else to discuss it with them. In that way, the integrity of the process is protected.

The world has now changed and observations which were previously communicated orally or had the most limited publication now appear on social media sites and are readily accessible by a potentially vast audience. In that regard, what is published can extend beyond the reach of the traditional media (whether newspaper or television). Everyone is bound by the common law of contempt, but, as regards the traditional media, in order to ensure the fairness of the trial and to protect those whom the law has considered deserving of protection, there are further real constraints on what can be reported: these are contained within the Contempt of Court Act 1981 ("the 1981 Act"). This case, for the first time, raises the issue of how critical fair trial protections can be extended to prevent or control communications on social media."

34.      In that case, the two defendants, both children, were charged with the murder of a woman.  They pleaded not guilty to murder and, during the trial, the defence became aware of numerous adverse comments posted about the defendants by members of the public on the Facebook link to a newspaper local to the proceedings, namely the Hartlepool Mail.  At paragraph 8, the Court said:

"Without giving further unwarranted prominence to them, they fell into one of three categories: there were those that were threatening to the accused, those which were derisive of their not guilty pleas, and those which were dismissive of the court process."

35.      There were also comments on the Facebook pages of various national newspapers and other media organs.  The judge (Globe J) observed that no one had suggested that the news reports themselves, issued by the media outlets, were other than fair, accurate and reasonable, but the comments left by members of the public were 'extreme'.  The judge made an order under the 1981 Act directing the media, inter alia, to remove any posted comments on any media reports, prevent the ability to leave posted comments upon such reports from any website under the control of the media organisations and, inter alia, prohibit the publication of posted comments on any media report of the trial on websites under their control.

36.      Such was the nature of the widespread discussion on social media that defence counsel submitted that the content was so prejudicial that the fairness of the trial was imperilled and there was a real risk of injustice to the defendants.  The judge noted he had given the usual warnings to the jury about not researching the case online and being wary of the possibility of inaccurate reports.  But he had not foreseen the 'avalanche of public outrage recorded on social media in reaction to media reports' and, accordingly, he discharged the jury and a new trial was ordered at a different Crown Court.  The judge then received submissions from a number of media organisations in respect of the orders that he had made, which were said to be disproportionate and unworkable.  The judge then made an order restraining the publication of any report of any part of the proceedings until the fresh trial had concluded or further order of the Court.  The media organisations appealed to the Court of Appeal.  The Court of Appeal made the following observations:

"35.    In relation to modern social media, comments are immediately available at the click of a mouse and although we recognise that the printed pages of comments which have been put before us are not reflective of what would be seen by searching a computer, we do not accept (as was argued) that those trawling the internet would not go beyond the first page. There is a real risk that those interested in the subject matter would continue to scroll down comments, or potentially worse, search out the most 'likes' which are themselves likely to be the most inflammatory.

36.      Suffice to say, we have no doubt that the publication on social media of comments of the type which caused Globe J to discharge the jury in Teesside would create a substantial risk of serious prejudice which could easily threaten a second trial as it undermined the first. Testing it another way, it is inconceivable that a responsible media organisation would allow comments on their own websites of the type of which complaint is made: even if comments of any sort were permitted (which we doubt) they would be moderated and excluded. We saw no reason why the approach should be different when the report is copied onto the media organisations' Facebook or other social media site."

37.      At paragraph 39, the Court held that an order preventing any publication of the trial was a 'disproportionate interference with the Article 10 ECHR rights of the press and the importance rightly attached to contemporaneous reporting of criminal proceedings which attract considerable entirely legitimate public interest'.  The Court went on to note that although it had received submissions from the media organisations, the Director of Public Prosecutions and the individual defendants, there were wider issues involved than encompassed by the particular litigation, and the Court noted:

"We have no doubt that the Attorney General (as guardian of the public interest in this area) should be involved in the general analysis of the overall position in order that a wider consultation can take place and appropriate guidance issued."

38.      This is a matter which I invite the Attorney General to consider as it will be his responsibility, in the first instance, to bring persons before the Court who may have impeded or prejudiced the course of justice by their actions.

39.      In its conclusions, the Court of Appeal observed that it was 'beyond doubt' that the particular Facebook material did 'contain material which potentially prejudiced the rights of [the defendants] to a fair trial and creates a substantial risk in relation to the trial which is about to commence.  Those responsible for the website risk proceedings for contempt of Court unless it is immediately removed....'.  The Court ordered the link to be removed, giving Facebook the opportunity to apply to the Court within seven days to discharge the order.  It needs to be clearly understood that any posting of material which may impede or prejudice the course of justice in Jersey may amount to a contempt of Court which could give rise to criminal sanctions, including imprisonment.  It might also, depending upon the circumstances, give rise to investigation and prosecution for the offence of attempting to pervert the course of justice.  It may be that inaccurate, hostile and / or inflammatory contributions on social media may be more likely to prejudice the course of justice in Jersey as such comments are more likely to come to the attention of jurors and potential jurors. 

40.      The Court of Appeal went on to say:

"43. In that regard, we ought to underline that anyone posting a comment on a publicly available website which creates a substantial risk of causing serious prejudice faces the potential prospect of proceedings for contempt of court and we anticipate that the authorities will be alert to inform the Attorney General should such circumstances arise. This does not just apply to the appellant or any other media organisations: it applies to individuals who run the risk of causing real difficulty to the smooth progress of a fair trial for these defendants."

In my view, the same principles apply in Jersey.  It is the police who should, in the first instance, notify the Attorney General of such circumstances. 

41.      The Court of Appeal went on to make a limited order preventing the media organisations from placing any report of the criminal trial on their Facebook profile pages, and to disable the ability of users to post comments on their respective news websites on any report of the criminal trial published by the media organisations on such websites. 

42.      I note that it is already the practice of, I believe, all media organisations in Jersey to prevent comments being made on criminal proceedings reported on their websites, and if it is not the practice of any news / media organisations of which I am unaware, then it should be.

43.      Finally, the Court of Appeal noted that they had 'no doubt that the police will take appropriate steps to support witnesses and discourage them from researching the trial on the internet.  Those responsible for the custody and care of [the defendants] must take steps to isolate the defendants from potentially prejudicial material which could divert their attention from the exceptionally important issues that will be ventilated at trial'.

Conclusion

44.      Many of the principles set out by the Court of Appeal in ex parte BBC are of obvious relevance to the circumstances of this case.  I also agree with what Sir Igor Judge said in Trinity Mirror Plc [2008], at paragraph 32:

"In our judgment it is impossible to over-emphasise the importance to be attached to the ability of the media to report criminal trials.  In simple terms this represents the embodiment of the principle of open justice in a free country.  An important aspect of the public interest in the administration of criminal justice is of the identity of those convicted and sentenced for criminal offences should not be concealed.  Uncomfortable though it may frequently be for the defendant that is a normal consequence of his crime."

45.      The Court's duty in criminal proceedings is not to protect the reputation or feelings of defendants and other third parties.  It is to protect the administration of justice.  As Lord Read said in AG v Times Newspapers [1974] AC 273 at page 294:

"The law on this subject is and must be founded entirely on public policy.  It is not there to protect the private rights of parties to a litigation or prosecution.  It is there to prevent interference with the administration of justice and it should, in my judgment, be limited to what is reasonably necessary for that purpose.  Public policy generally requires a balancing of interest which may conflict.  Freedom of speech should not be limited to any greater extent than is necessary but it cannot be allowed where there will be real prejudice to the administration of justice."

46.      In the circumstances, I have no doubt, and I find, that any trial of these proceedings must be heard in public in the usual way.  The same applies to any determination, if the Defendant is unfit to stand trial by jury, as to whether or not he did carry out the acts alleged to constitute the offences with which he is charged.  Such a hearing is sometimes required under the provisions of the 2016 Law.  As Sir Michael Birt, Commissioner, recently determined in AG v Nicolle [2022] JRC 268:

"There is a very strong public interest in criminal proceedings taking place in public. 

Furthermore, there is now the issue as to whether the defendant should be held criminally responsible.  In my opinion a matter such as this cannot be held behind closed doors, so that the public do not know what has been said and what the evidence is.  I find that the public interest in criminal proceedings being held in public, particularly of this gravity, outweigh any risks to the mental health of the defendant."

47.      It was accepted, certainly on behalf of the media, that it was arguable that different principles perhaps applied to hearings such as this, namely hearings to determine whether or not a defendant should be remanded to a specialist unit for assessment for the purposes of the provisions of the mental health legislation, from that which may apply to a trial.

48.      Certainly, the public interest in such hearings will be less and, arguably, there is a risk that such hearings may involve the ventilation of private details about a defendant's mental health which might, if widely publicised, prejudice a future jury from considering the evidence fairly if, ultimately they are found to be fit to stand trial and evidence in relation to their mental health is irrelevant to determination of their guilt or innocence.  However, I remind myself of the strong presumption in favour of open justice, the fact that departures from that principle can only be justified on the grounds of necessity, and that all those reporting and commenting on such matters, whether by way of the accredited media or otherwise, must be fully aware of the need not to report any matters that would cause prejudice to the course of justice, which would give rise to possible proceedings for contempt of Court.  Such proceedings are summary proceedings which, by their very nature, need to be resolved quickly in order that the course of justice is not prejudiced.  In R v Griffin [1989] 88 Cr App R 63 at page 67, Mustill LJ said: 

"In proceedings for criminal contempt there is no prosecutor, or even a requirement that a representative of the Crown or of the injured party should initiate the proceedings. The judge is entitled to proceed of his own motion.

There is no summons or indictment, nor is it mandatory for any written account of the accusation made against him to be furnished to the contemnor.

There is no preliminary enquiry or filtering procedure, such as a committal.

Depositions are not taken. There is no jury. Nor is the system adversarial in character. The judge himself enquires into the circumstances, so far as they are not within his personal knowledge. He identifies the grounds of complaint, selects the witnesses and investigates what they have to say (subject to a right of cross-examination) decides on guilt and pronounces sentence. This summary procedure, which by its nature is to be used quickly if it is used at all, omits many of the safeguards to which an accused is ordinarily entitled, and for this reason it has been repeatedly stated that the judges should choose to adopt it only in cases of real need."

49.      In Alan Wilkinson v The Lord Chancellor's Department [2003] EWCA Civ 95, Hale LJ said at paragraph 20:

"Once a judge has decided that it is proper to invoke the summary procedure, she has to secure that the process is as fair as possible for the alleged contemnor, consistent with its being a summary procedure.  Arrangements must be made for him to be legally represented.  A short period of reflection is valuable.  The contemnor is given the opportunity to contain his anger, consider the situation, apologise to the Court and assure it of his good behaviour in future."

50.      Accordingly, I order that all proceedings in this case take place in public, but that the publication of this judgment be postponed (although it must be communicated to the relevant representatives of media) until any trial of the Defendant has concluded.

Authorities

Mental Health (Jersey) Law 2016. 

Jersey Evening Post v Al Thani and Others [2002] JLR 542. 

Trusts (Jersey) Law 1984. 

Human Rights (Jersey) Law 2000. 

D v AG [2022] JRC 228. 

Criminal Procedure (Jersey) Law 2018. 

L v AG [2019] JRC 223. 

Sex Offenders (Jersey) Law 2010

A v AG [2020] JRC 004. 

Criminal Procedure (Jersey) Law 2018. 

Criminal Justice (Anonymity in Sexual Offence Cases) (Jersey) Law 2002. 

Khuja v Times Newspapers Limited and Others [2017] UKSC 49. 

Re S [2004] UKHL 47. 

Re Trinity Mirror and Others [2008] EWCA Crim 50.  

British Broadcasting Corporation [2016] EWCA Crim 12. 

AG v Times Newspapers [1974] AC 273. 

AG v Nicolle [2022] JRC 268. 

R v Griffin [1989] 88 Cr App R 63. 

Alan Wilkinson v The Lord Chancellor's Department [2003] EWCA Civ 95