High Court of Justice in Northern Ireland Queen's Bench Division Decisions

Neutral Citation No. [2010] NIQB 126	Ref:	TRE8017
Judgment: approved by the Court for handing down	Delivered:	24/11/2010
(subject to editorial corrections)*


 


IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND _________ QUEEN'S BENCH DIVISION ________ McLuckie's (Duncan) Application [2010] NIQB 126 IN THE MATTER OF AN APPLICATION BY DUNCAN McLUCKIE FOR JUDICIAL REVIEW _________

TREACY J

[1] The applicant seeks inter alia an order quashing the decision of the Coroner dated 23 November 2010 refusing the applicant's application for a restricted reporting order under s4(2) of the Contempt of Court Act 1981. It was agreed by all of the parties that this matter could proceed as a "rolled up" hearing.

[2] The written ruling of the Coroner records in its opening paragraph that he had been asked to make an order pursuant to s4(2) forbidding the media from publishing any information relating to the applicant being a prisoner in HMP Franklin until after the conclusion of the inquest on the basis that otherwise the jury could be prejudiced.

[3] The applicant is a Category A prisoner in HMP Franklin which is a high security prison. He is serving a life sentence for murder and he is scheduled to be a witness and to give evidence at this inquest as a round discharged by him from his rifle caused the death of Sergeant Major Adamson. According to what the Court has been informed, arrangements have been made for him to give his evidence via video link from the prison and, if he wishes, to view all the inquest proceedings.

[4] Following consideration of submissions, including from the Press Association of Ireland and the BBC, the Coroner decided not to grant the order sought. His reasons for refusing the order are set out at paras.1-5 of his ruling. He expressed himself satisfied that the media reporting that the applicant was a prisoner would not give rise to a substantial risk of prejudice to the administration of justice and that any possible risk of jury prejudice would be overcome by the Coroner and Counsel to the inquest Mr Daly addressing the jury on the issue. He stated that it was important that the jury is made aware that the offence for which the applicant is currently in prison is totally unconnected with the death of the deceased.

[5] At para.4 he said that the fact that the applicant is a prisoner and is scheduled to be a witness at this inquest is already in the public domain. It has been, the Coroner said," widely reported" in the media. He then goes on to say:

"Courts have no power under Section 4(2) to prevent publication of material already in the public domain. See paragraph 4.5 of the second edition of the Guide to Reporting Restrictions in the Criminal Courts October 2009. Whilst no authority, statute or case law is cited in support of this statement I attach considerable weight to a document that carries the imprimatur of the Judicial Studies Board and the Right Honourable Lord Judge, Lord Chief Justice of England and Wales. That being so I have concluded that in any event it would not be appropriate for me to make any order pursuant to that section."

[6] At para.5 of his ruling he notes that the same paragraph of the JSB document refers to a Judge having a discretion and the importance of balancing the competing public interests between protecting the administration of justice and ensuring open justice and the fullest possible reporting of criminal trials. He ruled that those principles can be applied equally to the Coroner's inquest and purported to adhere to that guidance.

[7] In the final paragraph of his ruling he said:

"I observe also that this application was not made until yesterday afternoon, that is 22 November, which was the scheduled opening day of this inquest and after the jury was sworn in. It was made without any prior notice having been given. In my view the applicant's legal representatives had ample time to consider this issue in advance of the opening of the inquest and to ask for it to be addressed at one of the hearings dealing with the preliminary matters."

[8] The information which the applicant seeks to restrain by means of a restriction order under s4(2) is already in the public domain having been given in open court during preliminary hearings including hearings at which the applicant was legally represented in these very proceedings. The fact that the applicant is serving a jail sentence for murder in Franklin Prison was mentioned during a number of hearings including a hearing on 7 November 2009 and was reported upon by the Press Association. Further stories including those facts were done on 24 February and 14 April this year. Counsel for the Coroner also furnished this Court with a BBC news report dated 2 December 2009 of a preliminary hearing on or about that date which was to similar effect.

STATUTORY POWER TO POSTPONE PUBLICATION

[9] Jurisdiction to make orders restricting publication of proceedings in court is contained in the 1981 Act. Section 1 defines the 'strict liability' rule as the rule of law whereby:

"conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular proceedings regardless of intent to do so."

[10] Section 2 concerns the application of the strict liability rule and provides:

"2-(1) The strict liability rule applies only in relation to publications, and for this purpose 'publication' includes any speech, writing, broadcast 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.

(4) Schedule 1 applies for determining the times at which proceedings are to be treated as active within the meaning of this section."

[11] Section 4(1) limits the circumstances in which the publisher of a report of legal proceedings will be held liable. Its effect is that, even though a publication may create a substantial risk that the course of justice will be seriously impeded or prejudiced, a person who comes within s4(1) will not be held liable. Section 4(1) provides:

"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."

[12] Section 4(2) then confers a means of protection against prejudice to the administration of justice by providing for postponement of a reporting. This provision, under which the judge made the order the subject of the present appeal, reads:

"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 any part of the proceedings, be postponed for such period as the court thinks necessary for that purpose."

[13] Thus under s4(2) the court may order the postponement of publications of a fair, accurate and contemporaneous report of its proceedings where that is necessary to avoid a substantial risk of prejudice to the administration of justice in those or other proceedings. The parties were agreed that this section applied to proceedings before the coroner.

[14] Reflecting the decisions in Galbraith and R v B the JSB guidance points out that trial judges have no power under s4(2) to postpone publication of any other reports eg in relation to matters not admitted into evidence or prejudicial comment in relation to the proceedings - Galbraith v HM Advocate High Court of Justiciary, 7.9.2000 adopted by the Court of Appeal in R v B [2006] EWCA Crim 2692. Accordingly, if such reports did create a substantial risk that the course of justice would be seriously impeded or prejudiced, the s2(2) strict liability rule would apply and the publisher would not enjoy the benefit of the exception in s4(1). Likewise, courts have no power under s4(2) to prevent publication of material that is already in the public domain. Such publications may incur liability for contempt of court under the strict liability rule and the media bear the responsibility for exercising their judgment in such cases – see R v B [2006] EWCA 2692 a case where the DPP supported the media's appeal against reporting restrictions imposed in a terrorism case.

[15] As the JSB guidance points out the appellate courts have also emphasised that newspapers and broadcasters should be trusted to fulfil their responsibilities to accurately inform the public of court proceedings and to exercise sensible judgment about the publication of comment which may interfere with the administration of justice. The media have access to legal advice and have their own judgments to make. The risk of being in contempt of court for damaging the interests of justice is not one any responsible editor would wish to take. In itself this is an important safeguard and it should not be overlooked because there are occasions in which there is ill-judged publicity in the media – see R v B [2006] EWCA 2692, para.25

[16] Whether or not the court has power to make a restricted reporting order under s4(2) when the information is already in the public domain that fact is a matter which would be plainly relevant to the exercise of any discretion to make the order sought.

[17] Central to the applicant's challenge is the contention that publication of the conviction will prejudice the administration of justice as it may influence the jury's assessment of the evidence. This submission overlooks the safeguards which exist and the robustness and independence of juries. In R v B (a judgment in which the court lifted a reporting restriction order postponing publication of the hearing), Sir Igor Judge, delivering the judgment of the court, stated at paras.31-32:

"There is a feature of our trial system which is sometimes overlooked or taken for granted. The collective experience of this constitution as well as the previous constitution of the court, both when we were in practice as the bar and judicially, has demonstrated to us time and time again that juries up and down the country have a passionate and profound belief in and commitment to the right of a defendant to be given a fair trial."

The context in that case of course being a criminal context.

"They know that it is integral to their responsibility. It is when all is said and done their birthright. It is shared by each one of them with the defendant, they guard if faithfully. The integrity of the jury is an essential feature of our trial process. Juries follow the directions which the judge will give them to focus exclusively on the evidence and to ignore anything they may have heard or read out of court. No doubt in this case Mr Justice Butterfield will give appropriate directions tailor made to the individual facts in the light of any trial post the sentencing hearing after hearing submissions from counsel for the defendants. We cannot too strongly emphasise that the jury will follow them not only because they will loyally abide by the directions of law which they will be given by the judge but also because the directions themselves will appeal directly to their own instinctive and fundamental belief in the need for the trial process to be fair. In this case there are at least two safeguards against the risks to which our attention has been directed. There is the responsibility of the media to avoid inappropriate comment which may interfere with the due administration of justice in this case and there is the entire trial process including the integrity of the jury itself." [emphasis added]

[18] There is no reason in principle why such considerations should not apply to inquest juries. One need also bear in mind that such juries do not determine liability – criminal or civil.

[19] In light of the above I have not been persuaded that the purported exercise of the coroner's discretion to refuse the order sought in his proceedings should be quashed and accordingly the judicial review is dismissed.