|Judgments - Attorney-General's Reference No. 3 of 1999: Application by the British Broadcasting corporation to set aside or vary a Reporting Restriction Order
HOUSE OF LORDS
 UKHL 34
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Attorney-General's Reference No. 3 of 1999: Application by the British Broadcasting corporation to set aside or vary a Reporting Restriction Order
Lord Phillips of Worth Matravers
Lord Hope of Craighead
Lord Walker of Gestingthorpe
Lord Brown of Eaton-under-Heywood
Lord Neuberger of Abbotsbury
Gavin Millar QC
(Instructed by BBC Litigation Department)
Advocate to the Court:
Lord Pannick QC
(Instructed by Treasury Solicitors )
27 APRIL 2009
WEDNESDAY 17 JUNE 2009
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Attorney General's Reference No. 3 of 1999: Application by the British Broadcasting Corporation to set aside or vary a Reporting Restriction Order
 UKHL 34
LORD PHILLIPS OF WORTH MATRAVERS
"Where the Attorney General refers a point of law, the court must not allow anyone to identify the defendant during the proceedings unless the defendant gives permission."
LORD HOPE OF CRAIGHEAD
The Convention rights
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the protection of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
"Both are vitally important rights. Neither has precedence over the other. The importance of freedom of expression has been stressed often and eloquently, the importance of privacy less so. But it, too, lies at the heart of liberty in a modern state. A proper degree of privacy is essential for the well-being and development of an individual."
As Lord Hoffmann said in para 55, there is no question of automatic priority. Nor is there a presumption in favour of one or the other. The question is rather as to the extent to which it is necessary to qualify the one right to protect the underlying value that the other seeks to protect. The outcome is determined principally by considerations of proportionality: Douglas v Hello! Ltd  QB 967, para 137, per Sedley LJ.
The article 8 right
"To my mind the privacy of a human being denotes at the same time the personal 'space' in which the individual is free to be itself, and also the carapace, or shell, or umbrella, or whatever other metaphor is preferred, which protects that space from intrusion. An infringement of privacy is an affront to the personality, which is damaged both by the violation and by the demonstration that the personal space is not inviolate."
It has come to be accepted, under the influence of human rights instruments such as article 8 of the European Convention, that the privacy of personal information is something that is worthy of protection in its own right: Campbell v MGN Ltd, para 46, per Lord Hoffmann. As he put it in para 50, human rights law has identified private information as something worth protecting as an aspect of human autonomy and dignity.
The article 10 right
LORD WALKER OF GESTINGTHORPE
LORD BROWN OF EATON-UNDER-HEYWOOD
"that, pursuant to section 35 of the Criminal Appeal Act 1968 and the Criminal Appeal (Reference of Points of Law) Rules 1973, no mention shall be made in any publication or broadcast of the proper name of any person or place which is likely to lead to the identification of the Respondent until further Order."
That order, so long as it stands, would prevent the BBC from broadcasting the circumstances of D's acquittal and discussing the possibilities of his future retrial save on an entirely anonymous basis, and it is that order which by the present application to the House the BBC now seek to have discharged.
"Where samples are required to be destroyed . . . information derived from the sample of any person entitled to its destruction . . . shall not be used(a) in evidence against the person so entitled; or (b) for the purposes of any investigation of an offence."
". . . the Court finds that the blanket and indiscriminate nature of the powers of retention of the . . . DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants' right to respect for private life and cannot be regarded as necessary in a democratic society."
Since the hearing of the present application, the government have announced measures to be taken to limit the database so as to comply with the Court's judgment.
"36. Reference to Court of Appeal of point of law following acquittal on indictment.
(1) Where a person tried on indictment has been acquitted (whether in respect of the whole or part of the indictment) the Attorney General may, if he desires the opinion of the Court of Appeal on a point of law which has arisen in the case, refer that point to the court, and the court shall, in accordance with this section, consider the point and give their opinion on it.
(2) For the purpose of their consideration of a point referred to them under this section the Court of Appeal shall hear argument
(a) by, or by counsel on behalf of, the Attorney General; and
(b) if the acquitted person desires to present any argument to the court, by counsel on his behalf or, with the leave of the court, by the acquitted person himself.
(3) Where the Court of Appeal have given their opinion on a point referred to them under this section, the court may, of their own motion or in pursuance of an application in that behalf, refer the point to the House of Lords if it appears to the court that the point ought to be considered by that House.
(4) If a point is referred to the House of Lords under subsection (3) of this section, the House shall consider the point and give their opinion on it accordingly; and section 35(1) of the Criminal Appeal Act 1968 (composition of House for appeals) shall apply also in relation to any proceedings of the House under this section.
(5) Where, on a point being referred to the Court of Appeal under this section or further referred to the House of Lords, the acquitted person appears by counsel for the purpose of presenting any argument to the court or the House, he shall be entitled to his costs ..
. . .
(7) A reference under this section shall not affect the trial in relation to which the reference is made or any acquittal in that trial.
"3(1) Every reference shall be in writing and shall (a) specify the point of law referred and, where appropriate, such facts of the case as are necessary for the proper consideration of the point of law; (b) summarise the arguments intended to be put to the court, and (c) specify the authorities to be cited;
Provided that no mention shall be made in the reference of the proper name of any person or place which is likely to lead to the identification of the respondent.
. . .
6. The court shall ensure that the identity of the respondent is not disclosed during the proceedings on a reference except where the respondent has given his consent to the use of his name in the proceedings."
"Their Lordships conclude that if the court is to have the power to make orders against the public at large it must be conferred by legislation; it cannot be found in the common law."
"82(1) Where it appears to the Court of Appeal that the inclusion of any matter in a publication would give rise to a substantial risk of prejudice to the administration of justice in a retrial, the Court may order that the matter is not to be included in any publication while the order has effect.
. . .
(3) The Court may make an order under this section only if it appears to it necessary in the interests of justice to do so."
Unlike the position regarding the 1973 Rules, no one could question the legitimacy of section 82 and any contra mundum orders made under it.
"11. In any case where a court (having power to do so) allows a name or other matter to be withheld from the public in proceedings before the court, the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purpose for which it was so withheld."
Here too it may be doubted whether, unless the anonymity order was in any event authorised by rule 6 of the 1973 Rules, section 11 could supply the necessary power.
"The House unanimously takes the view that since the 1998 Act came into force in October 2000, the earlier case law about the existence and scope of inherent jurisdiction need not be considered in this case or in similar cases. The foundation of the jurisdiction to restrain publicity in a case such as the present is now derived from Convention rights under the ECHR. This is the simple and direct way to approach such cases. In this case the jurisdiction is not in doubt. This is not to say that the case law on the inherent jurisdiction of the High Court is wholly irrelevant. On the contrary, it may remain of some interest in regard to the ultimate balancing exercise to be carried out under the ECHR provisions."
Lord Steyn had already described at paragraph 17 what he meant by "the ultimate balancing test" (as to "the interplay between articles 8 and 10"), in the following four propositions derived from Campbell v MGN Ltd  2 AC 457:
"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 cases 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."
"A criminal trial is a public event. The principle of open justice puts, as has often been said, the judge and all who participate in the trial under intense scrutiny. The glare of contemporaneous publicity ensures that trials are properly conducted. It is a valuable check on the criminal process. Moreover, the public interest may be as much involved in the circumstances of a remarkable acquittal as in a surprising conviction. Informed public debate is necessary about all such matters. Full contemporaneous reporting of criminal trials in progress promotes public confidence in the administration of justice. It promotes the values of the rule of law."
At paragraph 34 he added:
". . . it is important to bear in mind that from a newspaper's point of view a report of a sensational trial without revealing the identity of the defendant would be a very much disembodied trial. If the newspapers choose not to contest such an injunction, they are less likely to give prominence to reports of the trial. Certainly, readers will be less interested and editors will act accordingly. Informed debate about criminal justice will suffer."
"In the Court's judgment, the presumption of innocence will be violated if, without the accused's having previously been proved guilty according to law and, notably, without his having had the opportunity of exercising his rights of defence, a judicial decision concerning him reflects an opinion that he is guilty. This may be so even in the absence of any formal finding; it suffices that there is some reasoning suggesting that the court regards the accused as guilty."
A judgment on the present application discharging the anonymity order would, Lord Pannick submits, suggest that your Lordships regard D as guilty of the rape, his acquittal notwithstanding.
LORD NEUBERGER OF ABBOTSBURY