Scottish High Court of Justiciary Decisons

PETITION TO THE NOBILE OFFICIUM BY THE BRITISH BROADCASTING CORPORATION [2001] ScotHC 23 (2nd May, 2001)

[1] The British Broadcasting Corporation appeal by way of petition to the nobile officium against an order under Section 4(2) of the Contempt of Court Act 1981 ("the 1981 Act"). The relevant provisions of that Act are familiar indeed. Section 1 defines a "strict liability rule" whereby conduct may be treated as a contempt of court if it tends to interfere with the course of justice in particular legal proceedings, regardless of intent to do so. In terms of Section 2(1) that rule applies only in relation to publications which create a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced. For these purposes "publications" include written or broadcast material (Section 2(1)). Subsections (1) and (2) of Section 4 enact an important qualification:

[2] The particular order under Section 4(2) with which we are concerned was pronounced by Lord Osborne in the trial of the second respondent, Graeme John Donaldson ("the accused"), in the High Court at Glasgow. The charge in the indictment alleged that

Before the trial the agents for the accused lodged a special defence of incrimination which alleged that the crime libelled, if committed, was not committed by the accused but was committed by one, William Ward, who is the third respondent to this petition. As we shall explain in more detail, the order made by the trial judge required that any reporting of any matter showing or tending to show the participation of Ward in the events leading to the death of the deceased should be postponed until twenty-four hours after the conclusion of the accused's trial.

[3] It is necessary at this point to explain a little of the background. On 6 March 2000 Ward appeared on petition in the Sheriff Court at Airdrie on a charge that

As can be seen, Ward was at that stage charged with the murder for which Donaldson eventually stood trial in the High Court. On 6 March Ward was committed for further examination and remanded in custody. On 14 March 2000, however, on the instructions of Crown Counsel the procurator fiscal ordered the release of Ward. We were informed that Crown Counsel had considered that there was insufficient evidence to proceed against Ward at that time. None the less investigations continued and further reports in relation to him were submitted to Crown Office. Eventually, on 2 October 2000 the accused appeared before the Sheriff Court at Airdrie on a petition containing a charge in identical terms to the charge on which Ward had appeared on 6 March. On 9 October the accused was fully committed. He was indicted for trial at sittings of the High Court in January and February 2001 but the trial was unable to proceed at those sittings. On 16 February 2001 the procurator fiscal applied under Section 65(3) of the Criminal Procedure (Scotland) Act 1995 for an extension of the twelve-month period for commencing any trial on indictment of Ward in respect of the murder charge in the petition on which he had appeared on 6 March 2000. The Sheriff refused the application but indicated that, if so advised, the Crown could return later and ask for an extension of the period if they decided that they wanted to indict Ward on that charge. The Crown did not appeal that decision, since they took the view that, if necessary, they could indeed apply for a retrospective extension of the twelve-month period.

[4] On 17 April 2001, at the start of the accused's trial and before he was asked to plead, the Advocate Depute moved the court to grant an order under Section 4(2) of the 1981 Act to postpone publication of any report of the proceedings for a specified period. In the ensuing discussion defence counsel, Mr. Findlay, Q.C., adopted a neutral stance, but indicated that he intended to "prosecute" Ward in the trial. In particular he indicated his firm intention to lead evidence to show that Ward had murdered the deceased. The trial judge pronounced an order in these terms:

The form of the order, providing for it to become final only at five p.m. on the second working day after it was pronounced, had been adopted by the High Court in the light of the submissions made on behalf of the media in Galbraith v. H. M. Advocate 2001 S.L.T. 465, in order to give the media and other interested parties an opportunity to move for the recall or variation of the order if they considered that it should not have been pronounced or should not have been pronounced in the terms adopted by the court. We should add that, under the system now in operation, copies of orders pronounced by courts under Section 4(2) are sent immediately by e-mail to various newspapers and broadcasting organisations and to their agents. The fact that an order has been made is also published on the Scottish Court Service web site.

[5] At first sight, the period of the order seems somewhat strange, since, if Ward were to be indicted for trial, any trial would inevitably take place later than twenty-four hours after the end of the accused's trial. But, as we understand it, the trial judge deliberately chose to limit the duration of the order so that it would come to an end shortly after the trial so as to give the Crown that limited time in which to decide whether they intended to proceed against Ward. If they decided not to do so, then the order would expire and the media would be free to publish an account of the evidence at the trial. If on the other hand the Crown decided to proceed against Ward, then they could, before the expiry of the order, apply for it to be extended so as to postpone publication until after Ward's trial. In the event the Crown did not move for such an extension.

[6] On Wednesday 18 April Mr. Bonnington, the Solicitor to BBC Scotland, wrote to the Clerk of Court, Mr. Ian Martin, to intimate that BBC Scotland wished to make representations to the court for the recall or variation of the order. A hearing was fixed for the following day at which Mr. O'Neill, Q.C., appeared for the BBC. Having heard submissions, the trial judge accepted that the order pronounced on 17 April had been unnecessarily wide and he accordingly pronounced this order:

The trial judge issued an opinion explaining his reasons for pronouncing the order.

[7] That evening the BBC broadcast a report of the trial. It did not mention Ward by name but counsel for the accused, with whom the Advocate Depute concurred, contended that the broadcast had constituted a prima facie contempt of court under the strict liability rule set out in Section 1 of the 1981 Act. Pending the resolution of this question, on Friday 20 April, the trial judge made a new order under Section 4(2) in these terms:

The effect was to reinstate an order in the broad terms of the original order pronounced on 17 April.

[8] Also on 20 April the agents for the BBC presented this petition to the nobile officium craving the court to "recall and reduce the Order made by Lord Osborne on 19 April 2001 ... or to do further or otherwise in the premises as to your Lordships shall seem proper."

[9] On Monday 23 April, having heard further representations by the Advocate Depute and Mr. Findlay, the trial judge held that there had been a prima facie contempt of court and ordered the appearance before the court of the representatives of the BBC who had been responsible for broadcasting the news item in question. On 24 April Mr. Keen, Q.C., appeared on behalf of the representatives of the BBC, Mr. Blair Jenkins and Mr. Robert Wylie. Having heard counsel and the Advocate Depute, the trial judge held that the publication and the broadcasting of the news item did not constitute a contempt and discharged Mr. Jenkins and Mr. Wylie from the court. At that point Mr. O'Neill made certain submissions on behalf of the BBC, in relation to the order pronounced by the trial judge on 20 April. The Advocate Depute indicated that, in light of the order which the court had pronounced, finding that there had been no contempt of court, the Section 4(2) order of 20 April "would," in the words of the Minute Book, "no longer be required". The trial judge accordingly "withdrew" the order made on 20 April. The effect was to reinstate the more limited order pronounced by the trial judge under Section 4(2) on the previous Thursday, 19 April. That order is the subject of this petition.

[10] On 25 April the Advocate Depute informed the court that the Crown was not ready to proceed with the hearing of this petition and the court agreed to postpone the hearing until the following day. When the petition called before the court the next day, the court had only a limited amount of time available for the hearing. The court accordingly asked counsel to address them on only one issue. After a short hearing, the court decided that it could not decide that point without fuller argument and continued the hearing. It was in these circumstances that the matter came before us on 2 May.

[11] At the start of the hearing the Advocate Depute informed us that the trial judge was charging the jury in the accused's trial that morning and that it was anticipated that the trial would conclude during the day. He also told us that no new evidence had emerged in relation to Ward and that, although the decision was one for a Law Officer to take, it was anticipated that instructions would be given to take no further proceedings against him. The Advocate Depute anticipated that one of the Law Officers might be in a position to give that instruction during the course of the morning. In that event the subject-matter of the petition would become academic and the order would expire twenty-four hours after the end of the trial. We none the less decided to hear the submissions of Mr. Keen on behalf of the BBC and, when the Advocate Depute rose to reply on behalf of the Crown shortly before 1 p.m., he told us that the Lord Advocate had instructed the procurator fiscal to attempt to precognosce the accused about a certain change in his position which appeared to have emerged in the course of his evidence at the trial. In these circumstances the Advocate Depute was not in a position to argue that the order could simply be allowed to expire after the accused's trial was over. At that point the court adjourned for lunch. When the hearing resumed, the Advocate Depute informed us that in the meantime the jury had returned a verdict, finding the accused guilty of the charge of murder. At the same time, the Advocate Depute told us that, having considered the submissions advanced on behalf of the BBC, he could not support the order pronounced by the trial judge. In these circumstances the court passed the prayer of the petition and recalled the order of the trial judge. Since, however, the matter is of some general importance and we had the benefit of Mr. Keen's submissions, we consider it appropriate to indicate why, in our view, the Advocate Depute was correct to say that the order should be recalled.

[12] In Britain the general rule is that trials take place in public. This promotes not only the interests of the individual accused by ensuring that others can see whether he is being tried fairly but also the interests of the wider public who can see and, if appropriate, "endorse, criticise, applaud or castigate the conduct of their courts": The State v. Mamabolo 11 April 2001, unreported, at paragraph 29 per Kriegler J. writing for the majority of the Constitutional Court of South Africa. The reporting of court proceedings in the media serves these two important but separate purposes. Not surprisingly, therefore, the need for the public to have access in this way to court proceedings is reflected in the terms of Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms which provides that the press and public may be excluded from a trial only "to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice". Similarly, Article 10, on freedom of expression, provides in paragraph (2) that the exercise of the right to freedom of expression may be "subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for maintaining the authority and impartiality of the judiciary."

[13] As this court has recalled on a number of occasions, the 1981 Act was enacted to bring our law into line with the requirements of the European Convention and, in interpreting and applying its provisions, we must bear in mind not only the terms of the Convention but also the jurisprudence of the European Court of Human Rights. A convenient summary of that Court's application of Article 10(2) is to be found in their judgment in Observer and Guardian v. United Kingdom (1992) Series A No. 216 at paragraph 59:

[14] In enacting the provisions of the 1981 Act which we have quoted and which we have to apply, Parliament recognised the need for the press and media to be able to impart to the public information about proceedings in our courts. In particular, to allow this to be done, Section 4(1) contains an exception to the strict liability rule. The effect is that, even where the contemporaneous publication of a fair and accurate report of court proceedings creates a substantial risk that the course of justice will be seriously impeded or prejudiced, the publisher is not to be guilty of contempt of court under the strict liability rule. This exception in favour of the freedom of the media to report proceedings is not unlimited, however. For one thing, it applies only to the contemporaneous publication of reports of proceedings and only to reports which are fair and accurate. It does not apply, for instance, to delayed reports or to comments about the proceedings - where appropriate, they are covered by the strict liability rule. Parliament also recognised that, in certain circumstances, the interests of justice would require the balance to be struck in favour of restricting publication, even of a fair and accurate report of public court proceedings. So, in Section 4(2), the courts are given the power to make an order requiring that publication of the report of proceedings, or of a particular part of the proceedings, should be postponed. Where such an order has been pronounced, publication during the period of postponement constitutes contempt of court in terms of Section 1. See paragraphs 8 and 9 of the opinion of this court delivered by the Lord Justice General in Galbraith 2001 S.L.T. at p. 468 A - E. Of course, a court which is called upon to make an order under Section 4(2) must bear in mind that restrictions on the publication of the proceedings of our courts are exceptions to the general rule in favour of publication. As we have explained, in part at least, that public interest is distinct from the interest of the parties in having the proceedings conducted under the eyes of the public. A court must be careful to bear that wider public interest in mind, especially in those cases where - for whatever reason - the parties themselves would wish the court to make an order postponing publication, or where, as here, one of the parties adopts a neutral stance. Even in these situations, the court must consider not only whether such an order is "necessary" but also what the appropriate scope of any order might be.

[15] In the present case the Advocate Depute asked for the order to avert what she saw as a risk of prejudice to any proceedings that the Crown might take against Ward. She apparently contended that those proceedings were "pending" even though, as we have explained, the sheriff had refused to extend the twelve-month period for bringing Ward to trial on indictment and that period had run out. The trial judge rejected that argument. In our view he was correct to do so. The Advocate Depute's alternative contention was that the proceedings against Ward were "imminent" since, if they took place at all, they would be likely to take place as soon as convenient after the accused's trial. The mere fact that the Lord Advocate might decide not to proceed did not mean that such possible proceedings were not "imminent" for the purposes of Section 4(2). The trial judge acceded to that argument, holding that "imminent"

This approach would seem to be in line with the view of Shaw L.J. that the words "pending or imminent" would include "the possible (not necessarily the inevitable) outcome of legal process": R. v. Horsham Justices, ex parte Farquharson [1982] Q.B. 762 at p. 797 E. As in Galbraith (2001 S.L.T. 468 J - K), we prefer to reserve our opinion on this point, since we are able to decide the appeal on the basis of the other arguments advanced by counsel.

[16] As Lord Taylor L.C.J. observed in Ex parte Telegraph p.l.c. [1993] 1 W.L.R. 980, Section 4(2) contains two requirements for the making of an order. The first is that publication would create "a substantial risk of prejudice to the administration of justice" and the second is that postponement of publication "appears to be necessary for avoiding" that risk. He continued ([1993] 1 W.L.R. at p. 984 D - G):

We respectfully incline to share the view of the Court of Appeal, Criminal Division, as to the appropriate analysis of the subsection but, in any event, as they point out, in considering whether it is "necessary" to make an order a court will inevitably have regard to the competing public considerations of ensuring a fair trial and of open justice. It is by considering these rival considerations that the court determines, in terms of the Convention jurisprudence, whether there is a "pressing social need" to make the order.

[17] Even where publication of a report of proceedings would give rise to a substantial risk of prejudice to proceedings which are pending or imminent, there may be other means of eliminating or reducing the risk. In former times moving any trial in the other proceedings to a different part of the country might usually have been an effective way of ensuring that potential jurors were drawn from an area where a local newspaper did not circulate and where the matter would, accordingly, have gone unreported or would have been reported to only a lesser extent. In an era of radio and television broadcasts covering the whole of Scotland, however, that remedy by itself may often not be effective. And Mr. Keen specifically acknowledged that it would not have been effective in the present case. Mr. Keen also accepted that the Crown could not be expected to delay any trial in this case, where the events in question were already almost eighteen months old. On the other hand, it will be relevant for a court to consider whether the usual directions to a jury to proceed simply on the evidence led before them would be sufficient to deal with any prejudice arising out of a report of the proceedings. Even if they would not, the court would have to ask itself whether the risk of prejudice could be avoided by giving the jury special directions tailored to deal with the particular circumstances. It would only be if the court concluded that these or similar measures would not be adequate to deal with the risk of prejudice that the court could conclude that a Section 4(2) order might be necessary. In pondering these issues, the court can draw upon the experience of judges in our own system and in other systems in which juries play a similar role. That experience suggests that jurors understand and apply the directions which are given to them and that they can successfully concentrate on the evidence led in court, while excluding extraneous material from consideration. We refer to the discussion in paragraph 13 of the opinion in Galbraith and to the authorities cited there (2001 S.L.T. at p. 469 C - E), as well as to the subsequent decision of the Privy Council in Montgomery v. H. M. Advocate 2001 P.C. 1, especially per Lord Hope of Craighead at pp. 30 C - 31 B and per Lord Clyde at pp. 35 F - 36 F.

[18] The trial judge explained why he had concluded that he should make an order in this case:

We accept that, for the reasons which the trial judge gives, the reporting of the accused's trial was likely to be more extensive and more intense than in the average case. We were not given any detailed account of the evidence about Ward's role which it was anticipated would be heard in the accused's trial, nor yet of the evidence which had actually been led. We are prepared to accept, however, that the conduct of both the Crown and the defence cases was likely to result in the leading of a considerable amount of evidence suggesting that Ward had been involved in the offence. We are further prepared to assume that at least some potential jurors at any possible trial of Ward might notice the reports of that evidence and might recall it at the time of that trial.

[19] For our part - unlike the trial judge - we have no real difficulty in envisaging stronger cases for the exercise of the Section 4(2) power. But that is really beside the point. More importantly, we simply find ourselves unable to agree with his conclusion that an order should be made in the circumstances of this case. We have to consider both the interests of justice in any proceedings against Ward and the public interest in having fair and accurate reports of the proceedings in the accused's trial. Both these interests are substantial. But, having regard to the circumstances of this case, we are not satisfied that an order was "necessary" to deal with the risk of prejudice to the course of justice in any trial of Ward. In saying this, we have in mind, in particular, the experience of the judges in Scotland and elsewhere who have found that, when evidence is led at a trial, jurors concentrate on that evidence, on the submissions of counsel and on the directions of the judge in the trial. When they come to consider their verdict, they do so on that basis, rather than on the basis of what they may have read, heard or seen in the media some weeks or months before. Were it not so, jury trials would long ago have ceased to command the confidence of the public and of the legal profession. Applying that experience to the present case, we see no reason to think that anything said in evidence in the accused's trial about the role of Ward would have made it impossible for a jury to reach a proper verdict in any subsequent trial of Ward. In considering possible prejudice to Ward from the leading of this evidence, it should not be forgotten that, in so far as it tended to incriminate Ward, some at least of the evidence at the accused's trial might well be replicated or indeed supplemented at Ward's trial. The jury would therefore be likely to base their decision on the version of the evidence led at that trial, which would be fresh in their minds, rather than on their recollection of a report of what had been said in the accused's trial. In these circumstances we are satisfied that this is a case where directions by the judge at any trial of Ward could deal perfectly adequately with any risk of prejudice to Ward from the reporting of the proceedings in the accused's trial. Should that assessment turn out to be incorrect, and the judge presiding at Ward's trial considered that the jury could not return a fair and impartial verdict, then the court could deal with that eventuality by deserting the diet.

[20] For these reasons we allowed the appeal and, in terms of the crave, recalled the order under Section 4(2) of the Contempt of Court Act 1981 which the trial judge had pronounced on 19 April 2001.