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Cite as: [2005] HCJAC 79, [2005] ScotHC HCJAC_79

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Procurator Fiscal, Aberdeen v. Aberdeen Journals Ltd [2005] ScotCS HCJAC_79 (08 July 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Osborne

Lord Philip

C.G.B. Nicholson, C.B.E., Q.C.

[2005HCJAC79]

Appeal No: XJ651/05

Opinion of the Court

delivered by

C.G.B.Nicholson, C.B.E., Q.C.,

STATED CASE

in causa

PROCURATOR FISCAL, Aberdeen

Appellant;

against

ABERDEEN JOURNALS LIMITED

Respondents:

_______

Appellant: Young , A.D.; Crown Agent

Respondent: Cullen, Q.C.; James and George Collie, Solicitors

8 July 2005

Background
[1] On 18 February 2005 the respondents went to trial before the sheriff at Aberdeen on a charge in the following terms:-

"... a Petition at the instance of the Procurator Fiscal, Edinburgh, having been presented to the Sheriff at Edinburgh Sheriff Court on 7 April 2004, containing a charge against Luke Muir Mitchell, 203 Newbattle Abbey Crescent, Dalkeith, Midlothian, born 24 July 1988, then aged 15 years, that he murdered Jodi Jones, Parkhead Place, Easthouses, and the Sheriff having considered the Petition and having granted warrant to Officers of Law to search for, apprehend, and bring said Luke Muir Mitchell before the Sheriff for examination, you ABERDEEN JOURNALS LIMITED, being the publishers of the Press and Journal, did on 15 April 2004, at Lang Stracht, Aberdeen, or elsewhere in Aberdeen, publish a report in The Press and Journal newspaper published on 15 April 2004, which included particulars calculated to lead to the identification of said Luke Muir Mitchell as a person under the age of sixteen years concerned in said proceedings, namely as being a person against or in respect of whom said proceedings were taken, in that the said report proceeded under a headline of 'Boyfriend is charged with murdering schoolgirl Jodi' and identified the boyfriend of Jodi Jones as the said Luke Mitchell; CONTRARY to the Criminal Procedure (Scotland) Act 1995 Section 47(1) and (5)."

At the conclusion of the trial the sheriff returned a verdict of not guilty, and it is against that decision that the Crown has now appealed.

[2] Section 47 of the 1995 Act, so far as relevant, is in the following terms:

"(1) Subject to subsection (3) below, no newspaper report of any proceedings in a court shall reveal the name, address or school, or include any particulars calculated to lead to the identification, of any person under the age of 16 years concerned in the proceedings, either -

as being a person against or in respect of whom the proceedings are taken; or
as being a witness in the proceedings."

Subsection (3) sets out certain circumstances in which the foregoing prohibition is not to have, or may not have, effect. That subsection is not relevant for present purposes.

The facts
[3] The facts in this case were agreed and incorporated in a joint minute of agreement. As set out in the Stated Case they are as follows:

"1. On 7^th April 2004 the Sheriff of Lothian and Borders having considered a petition presented by William Gallacher, Procurator Fiscal of court for the public interest containing a charge against Luke Muir Mitchell, 203 Newbattle Abbey Crescent, Dalkeith, Midlothian that on 30^th June 2003 at Dalkeith, Midlothian he did murder Jodi Catherine Jones, granted warrant inter alia to officers of law to search for, apprehend and bring for examination the said Luke Muir Mitchell, and meantime if necessary, to detain him in a police station or other convenient place. Further, the Sheriff granted warrant to search the person, repositories, and domicile of the said Luke Mitchell, and the house or premises in which he may be found, and to secure, for the purpose of precognition and evidence, all writs, evidents, and articles found therein tending to establish guilt or participation in the crimes, and for that purpose to make patent all shut and lockfast places; and also granted warrant to cite witnesses for precognition and to make production for the purposes foresaid of such writs, evidents, and articles pertinent to the case as are in their possession; further recommended to the judges of other countries and jurisdictions to grant the warrant of concurrence necessary within their respective territories.

2. The said Luke Muir Mitchell was arrested on 14^th April 2004 in respect of said petition warrant granted on 7^th April 2004.

3. On 15^th April 2004 Luke Muir Mitchell appeared in private before the Sheriff of Lothian and Borders at Edinburgh; he made no plea or declaration, was committed for further examination and was remanded to Kenmure St Mary's School, Bishopbriggs.

The said Luke Muir Mitchell was born on 24 July 1988.

5. The Press and Journal is a newspaper published by the respondent at Lang Stracht or elsewhere in Aberdeen.

6. Crown production No. 1 is a true and accurate copy of the Press and Journal newspaper published on 15 April 2004 by the respondent. On the front page of the newspaper under the headline 'Boyfriend charged with murder of Jodi' there appears a photograph bearing the caption 'Police search the home of Luke Mitchell, who was the boyfriend of Jodi Jones'. There then appears a photograph bearing the caption 'Jodi Jones ... death shocked community' and a lengthy report which continues and concludes on page 7 of the newspaper. Appendix 1 attached hereto is a copy of the headline, photographs and report referred to.

7. Crown production No. 2 is a true and accurate copy of an email issued on 14^th April 2004 by the Crown Office and Procurator Fiscal Service via the Scottish Executive to editors of newspapers, including the editor of the Press and Journal newspaper, Derek Tucker. Appendix 2 attached hereto is a copy of the said email.

8. Derek Tucker was the editor of the Press and Journal newspaper on 15^th April 2004.

9. On Friday, 18^th June 2004 at 11.30 am Detective Inspector Campbell Thomson interviewed Derek Tucker under caution in the presence of Detective Constable Cordiner. Crown production No. 3 is a true and accurate transcript of the interview. Appendix 3 attached hereto is a copy of the said transcript."

The sheriff also made a further finding, no. 10, in which he finds: "Crown production No. 1 does not contain a newspaper report of any proceedings in a court".

[4] For the sake of completeness it should be added that the email referred to in finding No. 7 above narrates that Luke Mitchell "is to appear at Edinburgh Sheriff Court tomorrow on petition charged with the murder of Jodi Jones". It goes on to say that the note is issued "to avoid the risk that criminal proceedings could be prejudiced by speculation over the identity of the person who will appear in this case". The email concludes with a less than comprehensive summary of the provisions contained in section 47 of the 1995 Act. In relation to the interview between the police and the editor of the Press and Journal it need only be said that it discloses that Mr Tucker and his colleagues gave very careful thought, and obtained legal advice, before publishing the article which is now the subject of this prosecution.

[5] There is, of course, no doubt that the article in question clearly reveals the identity of the person arrested for the murder of Jodi Jones. However, the question for the sheriff and for this Court is whether the publication of the article contravened the provisions of section 47(1) of the 1995 Act.

Submissions for the parties
[6] In opening his submissions on behalf of the appellant the Advocate Depute began by suggesting (correctly, in our opinion) that the sole question in this appeal is: Was the newspaper article in question a report of proceedings in a court? In support of an affirmative answer to that question he drew our attention to two concessions made by the respondents in the course of the trial. They are set out at page 4 of the Stated Case where the sheriff states:

"Firstly, it was agreed that the criminal proceedings became active on 7^th April 2004 when the sheriff at Edinburgh granted the petition warrant for the apprehension of Luke Mitchell. Secondly, it was accepted by Mr Cullen that the act of the sheriff in granting the petition warrant constituted proceedings in a court and that if the report in the newspaper had stated that a petition warrant had been granted for the arrest of Luke Mitchell that would have amounted to a breach of section 47 of the 1995 Act".

[7] The Advocate Depute then submitted that, if the words "proceedings in a court" were to be construed as referring only to proceedings within the four walls of a courtroom, that would unreasonably restrict the application of the section and would lead to absurd consequences. Such a construction, he submitted, would not be within the spirit of the section and would not accord with the will of Parliament. He conceded that section 47 would not apply in a case where a person under 16 had been arrested and charged by the police by virtue of their common law powers, but he submitted that matters are different where, as here, the person has been arrested and charged in compliance with a petition warrant granted by a sheriff. In the latter case, it was submitted, court proceedings had, as conceded by Mr Cullen for the respondents, been commenced by the granting of the warrant. The consequence of that was that everything that followed thereafter became subject to the section 47 prohibition.

[8] The Advocate Depute then reminded us of the historical background to the provision that is now to be found in section 47 of the 1995 Act. The first provision relating to the prohibition of newspaper reports which may lead to the identification of a child is to be found in section 46 of the Children and Young Persons (Scotland) Act 1937, though that provision is not mandatory and merely empowers a court to give an appropriate direction. Mandatory provision in relation to children's hearings is to be found in section 58 of the Social Work (Scotland) Act 1968; and mandatory provisions, similar to those in section 47 of the 1995 Act, were introduced by section 22 of the Criminal Justice (Scotland) Act 1980, amending the earlier provision in section 169 of the Criminal Procedure (Scotland) Act 1975 which was originally modelled on the provision in the 1937 Act. Reference was also made in this connection to a passage in the Hansard Report of the debate on what eventually became the Criminal Justice (Scotland) Act 1980. The Advocate Depute submitted that it is clear that the policy since at least 1937 has been to protect the identity of young persons involved in court proceedings; and he went on to submit that to interpret section 47 in the manner favoured by the sheriff and contended for by the respondents would not afford the protection which Parliament has sought to provide.

[9] As support for a wide construction for section 47(1) the Advocate Depute sought to find assistance in the terms of subsection (3)(c) which, putting it shortly, empowers the Secretary of State in certain circumstances to dispense with the requirements of subsection (1) "after completion of the proceedings". That, it was submitted, confirms that "proceedings" are not restricted to what actually goes on within the walls of the courtroom.

[10] In conclusion, the Advocate Depute submitted that in the whole circumstances it is for the Court to interpret the provisions of section 47(1) in a manner which will allow the spirit of the legislation to be fulfilled. That would not be achieved if the subsection were to be construed in a manner which, in relation to matters occurring outwith actual proceedings in a courtroom, failed to give the protection which the statute intends.

[11] For the respondents Mr Cullen began by submitting that the Advocate Depute had been wrong to present the dispute as a contest between a wider and a narrower interpretation of the subsection. In reality, he said, there is no such competition. The language of the subsection, he submitted, is quite clear and unambiguous, and simply has to be applied to the facts of this case. When that is done, it is perfectly clear that the newspaper report in question was not a report of any proceedings in a court..

[12] Mr Cullen went on to submit that the Crown's approach in this appeal is flawed from the outset in that it shows no appreciation of the respondents' rights to freedom of expression as recognised in article 10 of the European Convention on Human Rights. The existence of those rights means that there is no scope for a court to extend the language of a statutory provision which itself restricts those rights to some extent. In the absence of clear words, he submitted, it is dangerous to assume that Parliament was seeking to give effect to a particular policy, and thereafter to interpret the subsection in a way which embraces any such policy. On the contrary, the provision should simply be interpreted by applying its clear words to the known facts of this case. When that is done, it was submitted, it simply cannot be said that what was contained in the newspaper article in question was a "report of any proceedings in a court".

[13] In relation to his submissions about freedom of expression Mr Cullen made reference to the case of In re S (A Child) (Identification: Restrictions on Publication) [2005] 1AC 593. The facts of that case were different from those in the present appeal, but Mr Cullen submitted that certain of the observations in the speech of Lord Steyn are of general significance. In particular he founded on a passage at paragraph 20 of the speech where Lord Steyn said:

"There are numerous automatic statutory reporting restrictions, e.g. in favour of victims of sexual offences: see, for example, section 1 of the Sexual Offences (Amendment) Act 1992. There are also numerous statutory provisions, which provide for discretionary reporting restrictions: see, for example, section 8(4) of the Official Secrets Act 1920. Given the number of statutory exceptions, it needs to be said clearly and unambiguously that the court has no power to create by a process of analogy, except in the most compelling circumstances, further exceptions to the general principle of open justice."

Mr Cullen submitted that the foregoing statement applies equally in a case like the present one where one is considering a statutory restriction on freedom of expression. Where the words of the statute are clear, it is not for the courts to seek to extend the restriction in order to give effect to some perceived general policy.

[14] Mr Cullen went on to submit that the Advocate Depute had founded in particular on two features of the newspaper article in question. First, there was the fact that the arrest and charge by the police took place subsequent upon the grant of a petition warrant by the sheriff. In relation to that Mr Cullen submitted that it is misconceived and unrealistic to suggest that the arrest and charge had themselves been part of proceedings in a court. In any event, care had been taken to ensure that the article did not use words such as "preceded by court procedure". Second, the Advocate Depute had placed some reliance on the fact that the article states that Luke Mitchell "is expected to appear at Edinburgh Sheriff Court today". In relation to that Mr Cullen submitted that a newspaper report of proceedings must be a report of something that has already taken place, and cannot include a statement as to something which may or may not happen in the future. In support of that submission reference was made to several of the definitions of "report" to be found in Volume XIII of the Oxford English Dictionary.

[15] In summary, Mr Cullen submitted that the words used in section 47(1) of the 1995 Act are clear and unambiguous. Applying those words to the facts of the present case it cannot be said that the newspaper article in question constituted a report of any proceedings in a court. He reminded us that, as can be seen from the transcript of the police interview with the editor, great care had been taken to ensure that the article did not contravene the statutory prohibition. Given that, for the reasons expressed by Lord Steyn in the passage quoted above, it is not for this Court to further restrict the respondents' rights to freedom of expression beyond what is already provided in the statute, there is simply no room for any wider interpretation of a provision which is itself perfectly clear in its terms. For the foregoing reasons, it was submitted, this appeal should be refused.

Decision
[16] We have come to the conclusion that the submissions advanced by Mr Cullen are to be preferred to those which were advanced by the Advocate Depute on behalf of the Crown. It may be that there are policy reasons for extending the protection given to persons under the age of 16, for example so as to include a situation where such a person is arrested and charged by the police in the exercise of their common law powers. However, we agree with Mr Cullen that it is not for us to interpret and to apply the provisions of a statute so as to give effect to what may appear to be sound policy considerations. Our task is simply to consider existing statutory provisions and, where their terms are clear, to apply them to the facts of a particular case.

[17] In our opinion the words "newspaper report of any proceedings in a court" are perfectly clear and comprehensible; and, when these words are considered in the context of the newspaper article in question, it cannot be said that the article is a report of "proceedings in a court". What is reported in the article was undoubtedly, of course, brought about in response to earlier proceedings in a court; but that does not mean, in our opinion, that the arrest and charge by the police were themselves such proceedings. We wish to stress, however, that we consider that it is unnecessary, and would be unwise, for us to attempt to express any general view as to what will, or will not, constitute "proceedings in a court" in the context of section 47(1). Every case will turn on its own facts, and it is for that reason that we have earlier set out in full the facts of the present case as found by the sheriff. On those facts we are satisfied that the article published on 15 April 2004 did not contravene the statutory provision. It follows that we answer the two questions in the Stated Case in the affirmative and refuse the appeal.