Telegraph Group & Ors, R v [2001] EWCA Crim 1075

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

[2001] EWCA Crim 1075

Venue Royal Courts of Justice, The Strand, London, WC2A 2LL, Thursday 3 rd May 2001

Between

Telegraph Group & Ors, R v

Before

Lord Justice Longmore

Mr Justice Douglas Brown

Mr Justice Eady

[1]On 6 April of this year, Rafferty J made an order in a murder trial at the Central Criminal Court, under s. 4(2) of the Contempt of Court Act 1981, postponing any reporting of the case until after the conclusion of another trial arising out of the same or closely related facts. She was exercising the jurisdiction conferred by Parliament in the following terms: "(1) 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. (2) 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".

[2]Mr Tugendhat QC applied before this court on 11 April, on behalf of various media groups, for leave to appeal that order under the terms of s.159 of the Criminal Justice Act 1988. On that date, at the conclusion of argument, we indicated that we would give leave but that we would dismiss the appeal (with reasons to follow at a convenient date). The relevant provisions, so far as material, are as follows:

"(1) A person aggrieved may appeal to the Court of Appeal, if that court grants leave, against - (a) an order under section 4 or 11 of the Contempt of Court Act 1981 made in relation to a trial on indictment; ..."

The background to the enactment was that an application had been made to the European Court of Human Rights complaining that there was no procedure whereby the media could challenge any order restricting court reporting under s.4 or s.11 of the Contempt of Court Act 1981: Hodgson, Woolf Productions and N.U.J. and Channel Four Television (1987) 10 E.H.R.R. 503. Once this complaint had been treated as admissible by the European Commission, the United Kingdom government decided to make statutory provision for a right of appeal by `persons aggrieved' by any such order. That phrase was intended primarily to embrace the media whose freedom of communication was thereby restricted.

[3]It is clear that the duty of the Court of Appeal when exercising this jurisdiction is not merely to review the decision of the trial judge who made the order under challenge, but rather to come to its own independent conclusions on the material placed before it: see Ex parte Telegraph Plc [1993] 2 All E.R. 971, 977 ( per Lord Taylor C.J.).

[4]The order was made by Rafferty J during a trial which involved a charge of murder against a police officer called Christopher Sherwood. The allegation is that shortly after 4.00 a.m. on 15 January 1998 he shot a naked and unarmed man in the bedroom of his flat. The man who died was Mr James Ashley, a suspected drug dealer. He was shot in the course of a raid on premises in Hastings organised by the Sussex Police Force. It was apparently believed that Mr Ashley had a firearm and would thus present a risk to the lives of the officers concerned. This turned out to be based on inaccurate information. Once this current hearing is concluded, the same Judge is due to preside at the trial of three more senior officers, charged in respect of the same incident with `misconduct in public office'. Those officers, each of whom has been represented before this court, are Det. Supt. Christopher Burton, Det. Insp. Kevin French and Det. Insp. Christopher Siggs. All have been suspended from the Sussex Police Force since shortly after this tragedy occurred.

[5]Until quite recently all four defendants were to be tried together. It became inevitable, however, that an order for severance would have to be made after it emerged that Mr Sherwood was going to rely not only on self-defence but also on what are alleged to be wholesale failures on the part of more senior officers in the Sussex Police Force (including the three defendants identified above) with regard to the planning and execution of the operation in which he was ordered to take part. As a matter of strict logic, it may perhaps seem odd that such considerations could be relevant or admissible when the primary defence to the murder charge would be expected to turn upon the events in the bedroom immediately prior to the shooting and the accused's state of mind when he discharged the weapon. Nevertheless, it is accepted on all sides that this material may be legitimately introduced.

[6]These allegations of failure are bound to overlap to a very considerable extent with the Crown's case against the more senior officers and, indeed, it appears that the Crown and Mr Sherwood will in the course of his trial be making, in effect, common cause against those three defendants. This emerges very clearly from the transcript of the opening of Mr Nigel Sweeney QC, who recited a litany of faults and failures said to underlie the preparations for the raid. He would not have been in a position to offer that degree of assistance or co-operation to Mr Sherwood if the other officers were still to be tried alongside him. It was against that background that he conceded that severance was the proper course. Indeed, Mr Tugendhat himself very fairly recognised, in the course of his submissions, that severance had been `necessary' on the facts of this unusual case.

[7]It is thus obvious that the three senior officers will be comprehensively criticised by both sides in the murder trial without anyone to defend them or put their point of view. This may very well have the effect of leading the jurors to have considerable sympathy with the defendant, since he is likely to appear as someone put into dangerous and difficult circumstances by his superiors without appropriate guidance or support. In argument, it has been put on the basis that he will be portrayed as the `poor bloody infantry' - thrust forward to take the blame for others. It is accepted by all concerned that these are quite legitimate tactics from his point of view.

[8]On the other hand, the trial of the other officers is due to take place very shortly after the murder count is disposed of. There will be a different venue (in fact Wolverhampton) and obviously a different jury. Yet, if there has been media coverage on a national basis of Mr Sherwood's case, there is a clear danger that an impression will have become irretrievably embedded in the public consciousness as to where the blame lies for a tragic turn of events. Mr Sherwood's superiors will almost certainly have been made to appear, justly or otherwise, as both incompetent and shabby in their treatment of him - as well as liable to be guilty of the offences with which they are charged.

[9]In making her assessment of whether to make a postponement order, the learned Judge had to proceed on the assumption that any media coverage would be responsible, fair and accurate: see e.g. the approach of Sir Nicolas Browne-Wilkinson V.-C. (as he then was) in Barlow Clowes Gilt Managers Ltd. v. Clowes [1990] T.L.R. 82. In the present case, however, even fair and accurate coverage of Mr Sherwood's trial could easily generate a powerful head of steam in the form of public resentment against them. Quite apart from the individuals themselves, their methods of planning and executing the raid, which they wish positively to defend as appropriate, will have been comprehensively denigrated at the hearing (including by unchallenged expert evidence to be called for the defence).

[10]Often, when it is necessary to have related trials taking place one after the other, the subject-matter will concern the same defendants but different transactions, as for example in the well known case of R v. Beck, ex parte Daily Telegraph Plc [1993] 2 All E.R. 177. That is a very different situation. Here, to adopt a phrase of Mr Julian Bevan QC (appearing for Det. Supt. Burton), the `actors' will change but the `plot' remains essentially the same. In practice, it will not be possible to separate out the action so as, for example, to confine Mr Sherwood's trial to the actual shooting and the later one to events at the planning stage. Another significant distinction between Beck and the present situation is that severance was ordered, in that case, for the administrative purpose of efficiently managing a great many allegations (of child abuse) rather than for avoiding unfairness.

[11]Factors of this kind played a large part in the learned Judge's decision to postpone reporting of the murder trial until the later trial is concluded. It is quite clearly not a decision that she made lightly. All judges nowadays are very conscious of the importance of freedom of communication and of the right (and indeed duty) of the media to report court proceedings. It is a very striking set of circumstances that a police officer could be tried for murder, by shooting, and yet the wider public be prevented from receiving information about the trial while it is taking place - and, moreover, not even be permitted to know the outcome until the verdicts have been returned in respect of the remaining defendants. We are told that the current trial is likely to come to an end by about the middle of May and that the second one is unlikely to be resolved until July or August. Such a delay in the flow of information is of course very regrettable: it certainly should not be allowed to happen unless it is necessary by reason of some overriding consideration of public interest. It is manifest from the transcript, not only of her ruling itself but also of the argument, that the learned Judge was fully conscious of this.

[12]There is no dispute between the parties as to the principles to be applied. It has become commonplace over the last ten years or so for courts to emphasise the role of the media in court reporting and the need for the wider public to given fair and accurate information about the administration of justice and the conduct of public servants. These are rights enshrined in

Article 10 of the European Convention

. Equally, however, the right to a fair and open trial is protected by the principles set out in Article 6. The jurisdiction to make a postponement order under s. 4(2) of the Contempt of Court Act is therefore inevitably a sensitive one operating, as it must, at the interface between these two vital interests.

[13]It appears quite clearly from the terms of Article 10(2) that one of the factors which may justify imposing restrictions on freedom of speech is the need to maintain the `authority and impartiality of the judiciary'. That is a phrase that is given a broad interpretation and would certainly be wide enough to embrace the concept of a fair trial: see e.g. Sunday Times v. United Kingdom

(1979) 2 EHRR 245

, 274 (majority judgment, para. 56); Att.-Gen. v. Associated Newspapers Ltd.

[1994] 2 AC 238

, 243D-E (Div. Ct.). What is indisputable, however, is that any such restriction must be shown to be both `prescribed by law' and `necessary in a democratic society'. Any s.4(2) order has to fulfil these criteria. Perhaps the most important question in the present case arises in the context of severance. Given that such an order was accepted as `necessary' to protect the right of the senior officers to a fair trial, is there any way in which reporting of the first trial can take place without defeating the purpose of the Judge's order of severance?

[14]Mr Tugendhat argues that there is, on the facts of the present case, no such need for any restriction in the reporting of the murder trial or, in the alternative, there is no necessity for the blanket restriction as it now stands. He argues that it is not merely the interests of his media clients that will be damaged by the limitations imposed. The general public will be deprived of information to which it is entitled. There is obviously scope too, for those who wish to do so, to present what has happened as a `cover up'. In one sense, the situation is aggravated by the fact that for the moment neither the reasoning of Rafferty J, nor that of this Court (since we are upholding her order), can be published for the purpose of dispelling any such impression.

[15]It is always necessary to recall, however, that the public is not going to be excluded from either trial. Journalists have been present throughout Mr Sherwood's hearing so far, and no doubt they will attend the later trial in strength also. All counsel have emphasised that we are concerned with postponement only, regrettable though that is, and not with any permanent deprivation of information or lack of scrutiny.

[16]It is undoubtedly the case that an important aspect of freedom of speech is that one should be able to publish not only what one wishes but also to do so when one wishes. For journalists especially topicality can be crucial, and this is recognised by the courts: see e.g. Cambridge Nutrition Ltd. v. B.B.C. [1990] 3 All E.R. 523, 535 ( per Kerr L.J.), Kelly v. B.B.C.

[2001] 2 WLR 253

, 284 ( per Munby J.) and Att.-Gen. v. Times Newspapers Ltd.

[2001] EWCA Civ 97

. This Court in no way wishes to belittle this consideration relied upon by Mr Tugendhat. He suggests that the public is likely, in practice, to receive less information about these important matters if the media are only permitted to report them after the second trial has come to an end. Day by day reporting would mean fuller coverage.

[17]That may be so but, like Rafferty J, we do not believe that this is Mr Tugendhat's strongest point. As is now fully acknowledged in the jurisprudence of the European Court of Human Rights, the media have a positive duty to act as a `watchdog', or as the `eyes and ears' of the general public, and thus to inform their readers and viewers about issues of public interest including the administration of justice: see also Att.-Gen. v. Guardian (No. 3) [1992] 1 W.L.R. 874, 886 ( per Brooke J) and McCartan Turkington Breen v. Times Newspapers Ltd.

[2000] 4 All ER 913

, 927-8 (Lord Steyn). It would not be right for us to proceed on the basis that this duty will not, in due course, be properly discharged.

[18]Our attention was invited to the recent decision of the Divisional Court in R (Wagstaff and ors) v. Secretary of State for Health

[2001] 1 WLR 292

, in the context of an enquiry into the activities of the notorious former general practitioner Harold Shipman. On the issue of whether such an enquiry should take place in public, the wishes of victims' relatives were recognised as a material factor. We were told also that the relatives of Mr Ashley wish that the trial of Mr Sherwood, relating to the circumstances in which he met his death, to be fully reported. That is a factor which Rafferty J expressly took into account, as we have. Against the background of the particular statutory regime by which we are constrained, however, this could hardly be a determinative consideration. A banning order should not be made at all unless the court is persuaded that it is necessary in the interests of justice. If the court is so satisfied, then even the understandable concerns of the family could not override that.

[19]The correct approach for the court to take on applications of this kind has been considered in a number of cases and we were invited to take account of the guidance given, in particular, in R v. Horsham Justices, ex parte Farquharson [1982] Q.B. 762, Re Central Independent Television Plc. [1991] 1 W.L.R. 4, R v. Beck, ex parte Daily Telegraph Plc. [1993] 2 All E.R. 177, Ex parte The Telegraph Plc. [1993] 1 W.L.R. 980, and M.G.N. Pension Trustees Ltd. v. Bank of America National Trust and Savings Association [1995] 2 All E.R. 355. We believe that from these authorities it is possible to derive a three stage series of tests by which to determine the matter on any given facts. We set out these three stages at paragraph 22 below.

[20]Before turning to this, however, we should observe that care needs to be taken to avoid confusing the two senses in which the word `necessary' is used in this context. First, the statute requires the court to address the question of whether a ban is necessary, in the light of the facts, to avoid the perceived risk of prejudice. Unless this is demonstrated, no such order should be made. Even if that hurdle has been overcome, however, it does not follow that the order has to be made. There then will arise the question of whether such an order is necessary in the second sense; that is to say the sense contemplated by

Article 10(2) of the European Convention

. Sometimes wider considerations of public policy will come into play such as to justify the refusal of a banning order even though there is no other way of eliminating the prejudice anticipated.

[21]This is sometimes called the `discretion stage', although the phrase can be misleading, since whether or not such an order is `necessary in a democratic society' clearly involves consideration of objective criteria and the making of value judgments. There is a parallel with regard to the notion of `discretion' in the law relating to the disclosure of journalists' sources under s.10 of the Contempt of Court Act. Lord Bridge of Harwich in X Ltd. v. Morgan-Grampian (Publishers) Ltd. [1991] 1 A.C. 1, 44 made the following comment:

"Whether the necessity of disclosure in this sense is established is certainly a question of fact rather than an issue calling for the exercise of a judge's discretion, but, like many other questions of fact, such as the question whether somebody has acted reasonably in given circumstances, it will call for the exercise of a discriminating and sometimes difficult value judgment"

. Thorpe L.J., in Camelot Group Plc. v. Centaur Communications Ltd.

[1999] QB 124

, 138, has also drawn attention to this fine distinction: "The making of a value judgment on competing facts is very close to the exercise of a discretion dependent on those facts".

[22]These possible sources of confusion can perhaps be avoided if applications to restrict media coverage of court proceedings are approached in the following way:(1) The first question is whether reporting would give rise to a `not insubstantial' risk of prejudice to the administration of justice in the relevant proceedings. If not, that will be the end of the matter.

(2) If such a risk is perceived to exist, then the second question arises: would a s.4(2) order eliminate it? If not, obviously there could be no necessity to impose such a ban. Again, that would be the end of the matter. On the other hand, even if the judge is satisfied that an order would achieve the objective, he or she would still have to consider whether the risk could satisfactorily be overcome by some less restrictive means. If so, it could not be said to be `necessary' to take the more drastic approach: see Re Central Independent Television Plc. [1991] 1 W.L.R. 4, 8D-G ( per Lord Lane C.J.).

(3) Suppose that the judge concludes that there is indeed no other way of eliminating the perceived risk of prejudice; it still does not follow necessarily that an order has to be made. The judge may still have to ask whether the degree of risk contemplated should be regarded as tolerable in the sense of being `the lesser of two evils'. It is at this stage that value judgments may have to be made as to the priority between `competing public interests': see Ex parte The Telegraph Plc. [1993] 1 W.L.R. 980, 986B-C.

[23]It is apparent from the transcripts that this was broadly the approach adopted by Rafferty J. We have followed a similar course. As to the first stage, there is really no dispute. It seems to have been accepted that fair and accurate reporting of Mr Sherwood's trial would give rise to a substantial risk of prejudice to the subsequent trial of the other officers. Mr Tugendhat did not suggest otherwise.

[24]Of course, it is right that we should have in mind the many cases where courts have shown faith in the robust independence of jurors, as for example in R v. West

[1996] 2 Cr. App. R. 374

, where Lord Taylor C.J. declared that "... providing the Judge effectively warns the jury to act only on the evidence given in Court, there is no reason to suppose that they would do otherwise": see also e.g. R v. Kray

(1969) 53 Cr. App. R. 413

; R v. Coughlan

(1976) 63 Cr. App. R. 33

, 37; R v. Cannan

(1990) 92 Cr. App. R. 16

; R v. Corbett (1988) 41 C.C.C. (3d) 385, 400-3. We also bear in mind the reasoning of the Privy Council in the recent case of Montgomery v. H.M.A. (20 October 2000). Their Lordships' attention had been drawn to the fruits of New Zealand research (Law Commission preliminary paper No. 37, November 1999) tending to suggest that the impact of pre-trial publicity and of prejudicial media coverage during the trial, even in high profile cases, is minimal.

[25]Nevertheless, in some high profile cases it is necessary to be wary even today. As Kennedy L.J. observed in Att.-Gen. v. Associated Newspapers Ltd. (31 October 1997, unreported):

"With potential jurors receiving information in so many different ways high profile cases would become impossible to try if jurors could not be relied on to disregard much of the information to which they may have been exposed, but that does not mean that they can be expected to disregard any information, whenever and however it is received, otherwise there would be no point in withholding from them any relevant information however prejudicial in content or presentation, hence the need for the law of contempt which we are required to enforce"

. That was itself a striking case, in which the Evening Standard had revealed potentially damning information about the past records of IRA terrorists who were currently being tried inter alia for breaking prison.

[26]The facts here too are, of course, very memorable, but there are other considerations special to this case. For one, Mr Batten QC (appearing for Mr French) has identified certain matters that are going to be canvassed, apparently without objection, in Mr Sherwood's case that would not only be prejudicial to the other defendants, but would also be inadmissible against them - or at least arguably so. He mentioned three propositions in particular:(1) that the deceased died as a result of wholesale `corporate failure' within the Sussex Police Force;

(2) that the standard Sussex firearms `tactics' were fundamentally flawed and, what is more, were known to be so;

(3) that other people involved in planning and intelligence-gathering prior to the raid (not themselves the subject of charges) were guilty of serious wrongdoing and not to be relied upon as witnesses of truth - at least one of whom Mr Batten may well wish to call in his client's defence. In the circumstances and the highly charged atmosphere of this case, it takes little imagination to see the scale of the potential damage to the three senior officers if such allegations became received wisdom by the time they came before the second jury.

[27]We need also to bear in mind the unusual nature of the charges that these officers are facing. They are not simple charges of murder, for example, where a responsible jury could, at least in theory, put to one side allegations read in the press and concentrate on the purely factual matters placed before them in evidence. The very notion of misfeasance in public office, however, imports more nebulous issues that are less easy to define. The case, like any example of alleged `corporate failure', inevitably involves consideration not merely of `who did what' but also of where responsibility ought ultimately to rest as between among a number of possible candidates. In Montgomery v. H.M.A. , Lord Clyde observed:

"While there has been some mention of the names of the appellants the focus of the publicity has not been concentrated on them personally, but rather on the necessity to bring to trial those, whoever they were, who were involved in the assault and have not been brought to trial. In so far as there may be any dispute on the identification of the appellants as the assailants it does not seem to me that the publicity has created serious prejudice upon the fair resolution of that issue"

. There is, it seems to us, a significant distinction between such a case, where the trial will be primarily concerned with the issue as to the identity of the culprit, and the present situation, where the three senior officers will be brought to trial shortly following upon a much publicised hearing during which the lion's share of blame for the death of the unarmed man, and for the supposedly bungled raid, had been laid unanimously by defence and prosecution at the door of Mr Sherwood's superiors.

[28]We need, therefore, next to ask the second question - namely, whether the drastic step of a blanket ban would be likely to eliminate that risk and, if so, whether the same objective could be achieved by something less restrictive of press freedom. It was suggested, for example, that the risk would be satisfactorily reduced by the use of their initials, only, when reporting any references during Mr Sherwood's trial to the three senior officers. Mr Batten pointed out that, once their own trial began, the unfocussed prejudice or resentment that would probably have built up against them during the murder trial, immediately beforehand, would simply then attach itself to individual names and faces. That is surely the reality.

[29]A theoretical possibility, also canvassed, would be to permit reporting of the events in the bedroom, and the evidence going to self-defence, while postponing anything about the planning stage. We consider this to be hopelessly impractical. Furthermore, Mr Michael Wood QC, who appeared before this court on Mr Sherwood's behalf, argued that this would create unfairness to him even if were practically possible. The public would receive a one-sided and incomplete picture of his defence. Mr Tugendhat responds by saying that no one is entitled to a full report and that summarising is inevitable. So stated, that is clearly right. Here, however, the problem is that there would be certain forbidden areas, which could not be reported even by way of summary. The whole point about court reporting is that members of the public should receive a fair and accurate picture of what takes place - in substitution for being present themselves: see e.g. Furniss v. Cambridge News Ltd. (1907) 23 T.L.R. 705, 706 ( per Sir Gorell Barnes). The court needs, therefore, to be very careful about sanctioning any course that would lead to information about a criminal trial being presented to the public in a way that actually distorted what was taking place, rather than merely summarising it. This might be a significant factor for the court to weigh in a case where partial restriction was being contemplated as a realistic option.

[30]Sometimes, the fact that a second trial is to take place in a different location from the earlier one will serve to reduce any risk of prejudice. Mr Tugendhat submits that the blanket restriction is unnecessary here, in particular, because the later trial will take place in Wolverhampton. A change of venue can often be salutary in cases of only local or regional interest. Unfortunately, where the facts of a particular case are striking or unique, and are naturally likely to attract national interest, the location of the trial is not going to be a critical factor.

[31]Another proposal, notwithstanding the three-year delay that has already occurred, was that the second trial could be postponed by Rafferty J for (say) a further six months, so as to give the events time to slip from the public consciousness. This is the consideration described by Simon Brown L.J. in Att.-Gen. v. Unger

[1998] 1 Cr App R 308

as the `fade factor'. It can be very significant in low profile cases of that kind, where the story is of passing interest only to general readers. This is hardly such a case. Even if we left aside the question whether it would be fair to the defendants concerned to impose yet more delay (as to which we have considerable doubt), the striking facts of this police raid are such that they are not likely to fade quickly from people's minds; they would in any event be easily revived once the second trial got underway. Unfortunately, we cannot see how the necessary objective can be accomplished, in this very unusual case, with anything falling short of a complete postponement of coverage.

[32]We need finally to decide, at the third stage, whether there is some overriding consideration of public policy which dictates that coverage should be permitted notwithstanding the undoubted risk it would generate that the three senior officers will not receive a fair trial on the charges of misfeasance. In other words, we need to make a value judgment as to `competing public interests', as contemplated by Lord Taylor C.J. in Ex parte The Telegraph Plc .

[33]It is fair to say that there are certain features that this case may be thought to have in common with Beck . It was there held that the trial judge had given too little weight to the importance of the need for media reporting of criminal trials, having regard to the widespread public concern over the circumstances in which persons in the public service had apparently been able to commit offences over a long period despite complaints having been made by some of the victims concerned (see especially at p. 182). There is clearly legitimate interest in these events too; all of the defendants were public servants. On the other hand, it is important to note that in Beck it was apparently conceded on behalf of the principal defendant that his later trial (if indeed it were to take place at all) would not be unfairly prejudiced by reporting of the first hearing if it was fair and accurate (see p. 180b). Moreover, there was real doubt as to whether the later trial would go ahead in the event that there were findings of guilt in the first. Of course, if he were acquitted there would have been little (if any) prejudice at a second trial.

[34]Perhaps the single most important distinction, however, is that in this case (unlike in Beck ) the evidence in the two trials is going to be inextricably linked for the reasons we have already addressed. Justice required the learned Judge to order severance. Publicity would inevitably defeat the object of that order. Against the background of this unusual combination of events, and of the offences charged, we are quite satisfied that the problems thereby created are incapable of being overcome by judicial directions to the second jury, however careful. After anxious consideration, we are left in no doubt that Rafferty J was entirely correct in the order she made. Any restriction of court reporting is regrettable and especially so in the case of such serious charges as these. Unfortunately, we have concluded that such an order is unavoidable in order to ensure that the three defendants in the second trial have a fair hearing in accordance with the rights guaranteed under

Article 6 of the Convention

Cited in 19 later judgments

and 10 more of the most senior