Scottish High Court of Justiciary Decisons

Applicant: Clancy QC, DG Hamilton; Burness LLP

Respondent: Shand QC, AD ; Crown Agent

5 January 2012

[1] On 15 December 2011, after a trial in the High Court in Glasgow, Kimberley Hainey was found guilty of the murder of her infant son Declan. She is due to be sentenced on 12 January 2012. There was considerable public interest in the trial. This was, at least partly, because of the unusual feature that the infant had lain dead at Ms Hainey's house for many months before the discovery of the crime. The applicants aver that they have a duty to report the proceedings at the trial stemming from the content of the Royal Charter establishing them as a public service broadcaster.

[2] In advance of the verdict, the applicants had approached the Crown Office "requesting" four items: (i) a photograph of Ms Hainey; (ii) a photograph of the infant, whilst alive and healthy; (iii) photographs of the inside of the house; and (iv), as an alternative to (iii), video recordings of the inside of the house. Although it is not stated in the petition, the items sought were all productions in the prosecution. What the applicants want are copies of these productions for use in the media. The Crown refused the request stating that it was not appropriate to grant it and claiming a potential infringement of copyright.

[3] The applicants aver that the Crown's refusal infringes their right of freedom of expression contained in Article 10 of the European Convention on Human Rights; notably, presumably, the right to receive and impart information without interference from public authorities. They state that any copyright would rest with the police and that section 30(2) the Copyright, Designs and Patents Act 1988, which does not apply to photographs, would permit publication if it were accompanied by a suitable acknowledgement. The applicants aver that a Devolution Issue arises in terms of section 57(2) of the Scotland Act 1998.

[4] The applicants have presented a petition to the nobile officium of the High Court of Justiciary based upon the refusal of the Crown to provide copies of the items specified. What is sought in the prayer is a declarator that the Lord Advocate's refusal to provide the items is incompatible with Article 10 and hence unlawful under section 57(2). The prayer also seeks an order against the Lord Advocate for the "production" of these items.

[5] The issue for the court is the competency of the petition. Although, on one view, all that the court would have to be satisfied of at this stage is that there is a colourable case for its competency, it was accepted that the arguments presented would not be advanced were they to be rehearsed at a later stage. The court was therefore invited to take a decision on competency on the basis of the current submissions, rather than to defer such a decision.

[6] The argument for the applicants is that the petition is competent because the circumstances disclosed are "extraordinary" and occur "in the course of criminal business" (Hume : Commentaries ii, p 59; Alison : Criminal Law II, p 23; see Clyde & Edwards : Judicial Review, paras 3.14-15, 8.40, citing Reynolds v Christie 1988 SLT 68). Reference was made to the recent examples of BBC, Petnrs 2000 SCCR 532 and BBC, Petnrs 2001 SCCR 440. The response from the Crown is that the petition is not competent as it does not relate to something occurring in the course of criminal business (Beck, Ptnr 2010 SCCR 222, LJ-G (Hamilton) at para [24], quoting LJG (Emslie) in Anderson v HM Advocate 1974 SLT 239 at 240). The trial court had been unaware of any request made of the Crown. There had been no decision of the court of first instance and the Crown's response had been wholly collateral to the trial. Reference was made to the position in England in R (on the application of Guardian News and Media Limited) v City of Westminster Magistrates Court [2011] EWCA Civ 1188. The nobile officium was only available as a remedy of last resort in unforeseen circumstances (Lang, Ptnr 1991 SCCR 138, LJG (Hope) at 143). It was not available to override Parliamentary intention and, in that regard, there was no right to the items sought within the Freedom of Information (Scotland) Act 2002 (see section 37).

[7] The nobile officium of the High Court is a power of superintendence available to deal with circumstances in the course of criminal business which are "extraordinary or unforeseen, and where no other remedy or procedure is provided for by the law" (Anderson v HM Advocate (supra), LJG (Emslie) at 240 following Alison: Criminal Law II, 23 and Moncrieff: Review in Criminal Cases p 264). That principle is sufficient to dispose of this application since it renders the petition incompetent. First, if the applicants wish to have access to productions in use at a criminal trial then the obvious remedy is to seek that access from the trial judge. As a generality, trials must take place in public and be freely reported by the press. Trial courts must accordingly have the power to permit access to any documents or other material in use during the trial where that access is reasonably necessary for the fair and accurate reporting of a case (see generally McInnes: Scots Law for Journalists (8^th ed) para 9.84). If, therefore, the applicants have been unable to obtain a copy of a production, they must be able to apply to the trial judge, in the context of the trial, to obtain one from the court. It is the trial judge who is best placed to assess the request and, where necessary, to take into account the human rights of others, including the convicted or accused person or the victim and any close relatives. If that request is refused, it may be that such a decision could be subject to review by a petition to the nobile officium, since the decision would be one taken in a criminal process where there is no right of appeal provided for by statute. That appears to have been the position in BBC, Petnrs 2000 SCCR 533, where a decision on the extent of television coverage had been made by the chairman of the trial court (see also BBC, Petnrs 2001 SCCR 440; cf R (on the application of Guardian News and Media Limited) v City of Westminster Magistrates Court (supra)). But until that first instance step is taken, access to the nobile officium is not open.

[8] Secondly, in this petition, the applicants are not seeking to challenge an occurrence in criminal proceedings. There has been no such occurrence. The applicants are not requesting the trial court's permission to view or copy productions. Rather, they are attempting to enforce a right, which they maintain they have, in terms of Article 10. In that context, they seek review of a decision taken by, or by the authority of, the Lord Advocate not to release the Crown's copies of certain material, which the applicants claim entitlement to inspect, copy and publish. They seek an order ordaining the Lord Advocate to produce that particular material. The applicants appear, therefore, to be attempting to vindicate a civil right to report criminal proceedings in a particular manner by recovering that material. That is an attempt to review the administrative actings of a public authority. It is thus amenable to the Court of Session's supervisory jurisdiction by way of a petition for judicial review. If that is so, there is a remedy by that route which also excludes the use of the nobile officium of the High Court.

[9] The application for a warrant is accordingly refused.