B, Re [2006] EWCA Crim 2692

Case No 2006/05276/B5

[2006] EWCA Crim 2692

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Friday 27 October 2006

The Strand

London WC2A 2LL

Before

THE PRESIDENT OF THE QUEEN'S BENCH DIVISION

(Sir Igor Judge)

MR JUSTICE PENRY-DAVEY

MR JUSTICE MACKAY

IN THE MATTER OF B

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MR A NICOL QC and MR A HUDSON appeared on behalf of BRITISH BROADCASTING CORPORATION, TIMES NEWSPAPERS and ASSOCIATED PRESS

MR E LAWSON QC and MR J LAIDLAW appeared on behalf of THE CROWN PROSECUTION SERVICE

MR P CARTER QC and MR P MYLVAGANAM appeared on behalf of THE DEFENDANT Z

MR E REES QC appeared on behalf of THE DEFENDANT AJ and OR

MR D FRIEDMAN appeared on behalf of THE DEFENDANTS NT, JF

and QS

JUDGMENT

[1]This is an appeal under section 159 of the Criminal Justice Act 1988 by the British Broadcasting Corporation, the Times newspaper and Associated Press against the order made by Butterfield J at the Central Criminal Court (sitting at Woolwich Crown Court) on 12 October 2006, and confirmed on 17 and 18 October. The judge ordered the postponement of reporting in the media of the sentencing hearing against Dhiran B until the conclusion of the trial of his co-defendants.

[2]This is a very high-profile case. The application is argued before us by Mr Andrew Nicol QC. It is supported by Mr Edmund Lawson QC on behalf of the Crown. His position is that in the particular circumstances of this case there was no basis for concluding that there would be prejudice caused to the future trial by fair and accurate contemporaneous reporting of the sentencing hearing.

[3]The appeal is opposed by the co-defendants, some of whom successfully applied to the judge to make the order now under appeal. We hope that we shall be forgiven at this time of the day if we do not set out all the detailed arguments which have been drawn to our attention. We studied the written submissions before we came into court and we have reflected on the oral submissions put before us this afternoon.

[4]The appeal is brought against the decision of the trial judge, Butterfield J. He was very familiar with all the issues in the case. We have given close attention to his reasoning and the basis upon which he came to his conclusion. In the end, however, we are not being asked to interfere with the exercise of the judge's discretion. We are invited to the conclusion that, in the particular circumstances of what the judge recognised as a difficult case, his final conclusion was wrong.

[5]Mr Nicol invited us to the observations in Ex parte The Telegraph Group plc and others

[2001] 1 WLR 1983

, 1987, where Longmore LJ giving the judgment of the court said:

"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 ...."

That is the test that we shall apply. In doing so we shall not, as was suggested, mechanistically curtail the trial judge's assessment of the possible risk to the integrity of the trial.

[6]A further consideration at this stage is that we are not here addressing, nor was the judge, whether there was or had been any abuse of process arising from pre-trial publicity; nor whether the publicity before or during a trial may have produced a miscarriage of justice. In short, we are not looking backwards at facts which can be established, or prejudice which may have materialised, but at a predicted, potential or possible risk of unfairness if publicity of this sentencing hearing were not postponed.

[7]We shall explain the facts very briefly. In August 2004 B and his co-defendants were arrested in Blackburn, Luton and London. The arrests and subsequent charging of the defendants was extensively reported on 17 and 18 August. The defendants appeared at Belmarsh Magistrates' Court on 18 August. Reports of that hearing were also published in the media. The defendants were remanded in custody. There was a hearing on 25 August by way of video link at the Central Criminal Court. Reports of that hearing were again published in different parts of the media. A preliminary hearing took place at the Central Criminal Court on 3 September 2006. As far as we can gather from the papers reports of that hearing were published less widely, but the British Broadcasting Corporation certainly reported them. Butterfield J was invited to act as the trial judge. He was responsible for case-managing the case to trial and is the trial judge.

[8]The indictment contained 23 counts. It was severed for practical management reasons in July 2006. At that stage B was due to be tried first, with his co-defendants' trial to follow. Almost exactly three months after that order, on 12 October 2006 B pleaded guilty to count 1. The count alleged conspiracy to murder. The particulars of offence alleged that between 1 January 2000 and 4 August 2004 B and several identified co-defendants conspired together and with other unidentified persons to commit murder. It was emphasised in the course of his written basis of plea that, in pleading guilty as he did, B was making no admission that he had conspired with any of the other named defendants. The Crown made clear that it did not accept what was accurately (if inelegantly) described as the "non-admission". Nevertheless (lest there be any doubt about it), the Crown did not suggest that B's plea did anything to interfere with the presumption that the remaining co-defendants were innocent and would remain innocent until proved guilty.

[9]The hearing on 12 October turned to the issue of publication and publicity: How much of the proceedings involving B either on that day, or at any later date, should be subject to reporting restrictions designed to protect the integrity of the trial of the co-defendants? The judge accepted a submission on B's behalf, supported by the Crown, that, B having pleaded guilty, he should be sentenced as soon as possible and that sentence should not be postponed until the conclusion of the trial of the co-defendants, which would undoubtedly have been the more normal practice.

[10]That decision cannot be, and has not been, impugned. It is suggested that if it had not been made, the issue which arises now would not have arisen. That is the fact, but it does not advance the argument. Its impact is that the sentencing decision was fixed for 1 November and, although it may be postponed for a few days yet, it will take place in the immediate future. That process will involve three interlinked but distinct features. The Crown will open the case against B and set out the facts against him in the familiar way. Counsel for B will then present his submissions in mitigation. Having reflected on all the material, the judge will then pass sentence. He will explain the basis for his sentencing decision in reasoned observations, capable of being understood by B himself and the public at large. All this will now happen before the start of the trial of the co-defendants.

[11]On 12 October it was thought that the trial would begin in January 2007. As it happens, Butterfield J was subsequently persuaded (for reasons unconnected with the issues now before us) that the trial should revert back to its original starting date, 17 April 2007. This was the context that it was submitted on behalf of the co-defendants that any reporting in the media of the sentencing hearing should be postponed until after the conclusion of their trial. Butterfield J concluded that there was no substantial risk of prejudice if the fact of and the basis of B's plea were reported following the end of the hearing on 12 October. Inevitably, and with every justification in the present circumstances, those facts and the proceedings themselves (save those with which we are now concerned, that is the order prohibiting publication in relation to the sentencing hearing) attracted a great deal of media interest.

[12]On 17 October Butterfield J said that he had no concerns arising from the way in which the proceedings on 12 October had been reported. On the other hand, we bear in mind that those proceedings did not extend to a detailed opening of the case against B.

[13]In a short, concise judgment on 12 October Butterfield J explained his concern about the risk of substantial prejudice to the trial of the remaining co-defendants if his sentencing remarks and the proceedings which culminated in his sentencing decision were to be reported. He explained that B would be the first Muslim to be sentenced in the United Kingdom for terrorist crime involving plans to commit mass murder of innocent civilians. As part of a very well understood obligation, now enshrined in statute, he would have to explain the reasons for his sentencing decision. As he correctly noted, none of those observations could provide evidence admissible against any co-defendant. He also recognised that both the sentence and his reasons for it, whatever they were and however expressed, would be likely to be productive of a huge amount of legitimate public discussion and debate -- a debate that might well continue for some time -- and, depending on future events, might revive from time to time. That consideration provided the critical factor in his decision.

[14]As we have emphasised, the judge was plainly familiar with all the essential facts of the case. He recorded in his judgment that the activities of B were "central" to the subsequent trial. However (and this is not without significance to our decision), it was not in dispute that B's conviction will be admissible as evidence at the forthcoming trial in support of the Crown's case. It is also not in dispute that the evidence relied on by the Crown against B (although not any judicial comment by the sentencing judge on them) but including his perceived role and detailed evidence of his activities would also be admissible.

[15]The judge examined a number of different possibilities, including whether it might be possible to allow the actual sentence to be reported, but without his sentencing remarks, or to allow the sentence and the Crown's opening of the facts to be reported without them. He concluded that that would be unrealistic. Accordingly, he made the order which is the subject of this appeal.

[16]On 17 October the judge was invited to revisit the order. It was suggested that as the starting date for the trial had been postponed from January until April, the delay would work as the "fade factor". In fairness to the careful explanation given by the judge for maintaining his decision, we should recite it in full:

".... 4. I have no concern about any reporting of the prosecution case against B. .... It is not suggested on behalf of any defendant that any part of the evidence relied on against B is inadmissible in the case of the remaining defendants. The possibility that any potential juror, reading a report of the proceedings against B at a time when he would not have the least idea he was later to become a juror in the trial of the remaining defendants, would be significantly affected by what he had read five months earlier, as opposed to what he heard during the later trial, is to my mind fanciful. 5. My anxiety about the risk of prejudice centres on my sentencing remarks. .... I have a statutory duty to explain to the defendant my view of the gravity of his offending, the aggravating and mitigating features that I find to exist and the reasoning underpinning the sentence I eventually impose. Such observations as I shall make can form no part of any admissible evidence against the defendants. 6. Whatever sentence I impose, and the observations I make when imposing it, are likely to be the subject, quite legitimately, of public discussion and debate. It would be unreal to expect that debate to be over in a matter of days. It is likely to be prolonged. Because the case of B will, by virtue of its timing, be a bench mark for later cases it is unlikely that the sentence and the reasons for that sentence will simply fade from public consciousness with the passage of time. There may well be cases which fall to be sentenced immediately before or during the trial of the seven defendants. In such cases counsel or judge may wish to have regard to the sentence imposed on B. The media, if free to report B's sentence, could not be constrained from reporting any references to that sentence in those later proceedings. 7. B and his activities are central to the second trial. The jury will undoubtedly have to form a view about them on the evidence they hear. Judicial observations about those activities are irrelevant and inadmissible. .... I appreciate that such publication might be said not to be covered by section 4(1) of the Contempt of Court Act 1981 but the risk remains and the consequences to the trial might well be serious. I conclude that if reporting was not postponed there is a real and substantial risk that in the course of the second trial the jury trying those defendants will learn, or be reminded, one way or another, of the sentence imposed on B and the observations made when that sentence was imposed. That might well be prejudicial to the defendants whatever directions the jury received. 8. I have re-considered whether it would be possible to permit publication of the sentence imposed but prohibit publication of the reasons for that sentence. Recent ill-informed public debates about the adequacy of sentences even where the full reasons have been given persuade me that this would not be an appropriate course. ...."

[17]The following day, because of some perceived uncertainty about the effect of his ruling, the judge provided an addendum to it. He said:

".... 2. I recognise that the reporting of the prosecution case against B would not, of itself, cause a substantial risk of prejudice. But if those proceedings were reported without any reporting of the sentence that in itself would, in my judgment, create a substantial risk of prejudice to the administration of justice. In reporting the prosecution opening and the mitigation the media would inevitably recount that B had been sentenced 'but we are not permitted by order of the court to disclose what that sentence is or the reasons for it'. Such a situation is highly undesirable, likely to lead to speculation and to fuel publicity and debate. ...."

[18]The papers before us included references to a very large number of authorities, both within this jurisdiction and from the European Court of Human Rights. The authorities from both sides have taken full account of each defendant's Convention rights and the right to freedom of expression. But the reality is that we are here in familiar, if never easy, territory. Fundamental principles are engaged. First, in this country every defendant who appears before the court to stand his trial, whatever the charge, whoever he or she may be, is entitled to, and must receive, a fair trial. That was, in the memorable epithet of Lord Bingham of Cornhill, a "birthright". Although the epithet is relatively recent, the concept is of some antiquity.

[19]An equally precious principle, hallowed by custom and the tradition of the common law, is the freedom of the media to act as the eyes and ears of the pubic at large and, among their other responsibilities, to observe and contemporaneously to report the criminal proceedings involving the same defendant whose birthright to a fair trial must be protected. The administration of criminal justice must be open and transparent. The freedom of the press to report the proceedings provides one of the essential safeguards against closed justice.

[20]The question here is whether the operation of this principle creates a risk of substantial prejudice to the fairness of the trial of B's co-defendants if reporting this stage of the proceedings (that is the sentencing of B) is not prevented altogether, but postponed. That is the issue which we must address, acknowledging, as we do, that the "primacy" of the fair trial is the crucial feature. We take that word from the speech of Lord Hope of Craighead in Montgomery v Her Majesty's Advocate

[2003] 1 AC 641

[21]The broad criticism of the judge's decision, developed by Mr Nicol, can be briefly summarised. The judge did not find that a proper report of the prosecution opening of the case would create any of the risks of prejudice with which this jurisdiction is concerned. The decision, and the essential basis for it, was that the case as a whole, including the level of sentence and the reasons for it, would inevitably generate huge, justifiable comment and possibly controversy. It was publicity of this kind which, according to the judge's conclusion, created the risk which justified the order which he made. Mr Nicol submits that that is not a sufficient basis for the order, which in any event was wrongly made on the facts as they are known.

[22]Section 1 of the Contempt of Court Act 1981 provides:

"In this Act the strict liability means the rule of law whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice, in particular legal proceedings, regardless of intent to do so."

Section 2, so far as relevant provides:

"(1) The strict liability rule applies only in relation to publications .... addressed to the public at large or any section of the public. (2) The strict liability rule applies only to a publication which creates a substantial risk that the course of justice in the proceedings will be seriously impeded or prejudiced. ...." "(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."

[23]Mr Nicol drew our attention to a passage in Ex parte The Telegraph Group, in which Longmore LJ brought together a number of threads to be derived from the authorities. He suggested that there were possible sources of confusion which could be avoided if applications to restrict media coverage of court proceedings were approached as follows:

"22. .... (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 section 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 Ex parte Central Television plc [1991] 1 WLR 4, 8D-G per Lord Lane CJ. (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 a to the priority between 'competing public interests': see Ex parte The Telegraph plc [1993] 1 WLR 980, 986B-C."

There is no issue between the appellants and the co-defendants as to principles (1) and (2). There is an issue as to principle (3). The respondents contend that, in reality, the correct test is that, when the matter is properly examined, there remains a primacy in the fairness of the trial. This primacy means that the defendant is entitled to be tried without the risk of prejudice. It is unnecessary for us to resolve the issue in this hearing and we do not do so. We have already indicated that for present purposes we shall give primacy to the fairness of the trial.

[24]However, Mr Friedman argued before us that section 4(2) of the Contempt of Court Act was not confined to prejudice arising from contemporaneous fair and accurate reporting of court proceedings. He suggested that section 4(2) went to protect against a risk of what was vividly described as "parasitic damage" arising from fair and accurate reporting. Our attention was drawn to Scarsbrook or Galbraith v Her Majesty's Advocate from the Appeal Court, High Court of Justiciary in Scotland (7.9.2000), in a judgment given by the Lord Justice General. After considering the statutory provisions, the Lord Justice General observed:

"10. When we apply these provisions to the circumstances of this case, we see immediately that any publication which does not simply constitute a fair and accurate report of active court proceedings, such as the present appeal, does not fall within the scope of Section 4(1). Hence, if that publication creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced, the publisher will be in contempt of court by reason of the strict liability rule. As we have explained, the main thrust of Miss Scott's main argument was that, unless a Section 4(2) order were made, the appeal proceedings in this case would prompt a barrage of articles containing comment, from Mr Galbraith's relatives and others, which would be hostile to the appellant and would poison the minds of any potential jurors in a retrial. It is plain, however, that comment of this kind would go beyond a simple report of the proceedings and so would not enjoy the benefit of the exception in Section 4(1). Accordingly, if such comment did actually create a substantial risk that the course of justice would be seriously impeded or prejudiced, the strict liability rule would apply in terms of Section 2(2). In that event, the court would have power to deal with the mater in terms of section 2(2) and, in an appropriate case, to punish the publisher. That is the mechanism which Parliament has provided for protecting the course of justice from the effects of publications of that kind. The court's power in Section 4(2) is not intended to be used to deal with such publications but to deal, rather, with reports of its proceedings which are fair and accurate but should none the less be postponed. It would accordingly be an abuse of this particular power to pronounce an order, as Miss Scott urged, not for the purpose of warding off an anticipated consequence of the fair and accurate reporting of the appeal proceedings but for the purpose of warding off prejudicial comment which those proceedings might prompt. For these reasons we reject both aspects of Miss Scott's submission."

[25]We should make plain that, quite apart from the effect of Scarsbrook, which we adopt, the responsibility for avoiding the publication of material which may prejudice the outcome of a trial rests fairly and squarely on those responsible for the publication. In our view, broadcasting authorities and newspaper editors should be trusted to fulfil their responsibilities accurately to inform the public of court proceedings, and to exercise sensible judgment about the publication of comment which may interfere with the administration of justice. They have access to the best legal advice; they have their own personal judgments to make. The risk of being in contempt of court for damaging the interests of justice is not one which any responsible editor would wish to take. In itself that is an important safeguard, and it should not be overlooked simply because there are occasions when there is widespread and ill-judged publicity in some parts of the media.

[26]We shall examine whether a fair and accurate report would be prejudicial if published at this stage. We must do justice to the submissions made on behalf of all the respondents, but we will narrate the submissions made to us by Mr Rees QC, who called into mind the public interest and the prejudice identified by the judge. Mr Rees suggested that there would be a high level of extensive reporting, and eventually, extraneous comment on the case. He suggested (and this was the position of counsel for all the respondents) that there was genuine ground for fearing that the sort of widespread comment which had occurred in previous cases would be transposed to this one. He reminded us, too, of the publicity that was given when the defendants were arrested back in the summer of 2004. It was suggested that the public interest in this case would at this stage be satisfied by the judge's decision to allow the Crown's comments to him when the plea was tendered and the basis of plea put forward to be reported. They were fully reported. That was sufficient.

[27]We were invited to consider the consequences, if the appeal was allowed, that the fairness of the trial could not be protected. The comment could cross the proper boundary; it could be disastrous to the fairness of the trial. Therefore, as the future is still unsure, it is much better to deal with the matter now by supporting the judge's order. Anything different would create a difficulty for an as yet unchosen jury, all of whom (it was suggested) were potential victims of the charge which the co-defendants faced, if the Crown's case was right, and the jury would have great difficulty putting out of their minds the material which would derive from the publicity. That is an important submission which we shall address in a moment in the context of the jury's performance of its own duties. In effect, therefore, although the trial judge would give directions to the jury, those directions would not address the risk of unfairness and alleviate the dangers that the trial would have been prejudiced beyond rescue.

[28]As we have already said, the entitlement to a fair trial has primacy above all other considerations. Montgomery v Her Majesty's Advocate was a case in which the court looked backwards, rather than forwards, at a very high level of publicity. Lord Hope identified the common law test where pre-trial publicity is relied upon in support of a plea of oppression. It was whether the risk of prejudice was so grave that no direction by the trial judge, however careful, could reasonably be expected to remove it. He then addressed the jurisprudence at Strasbourg, reinforced by the jurisprudence in the Supreme Court at Canada, the High Court of Australia and the High Court in Ireland, and commented at page 673G:

".... the risk that widespread, prolonged and prejudicial publicity that occurred in this case will have a residual effect on the minds of at least some members of the jury cannot be regarded as negligible."

However, he then went on: 31. "The principal safeguards of the objective impartiality of the tribunal lie in the trial process itself and the conduct of the trial by the trial judge. On the one hand there is the discipline to which the jury will be subjected of listening to and thinking about the evidence. The actions of seeing and hearing the witnesses may be expected to have a far greater impact on their minds than such residual recollections as may exist about reports about the case in the media. This impact can be expected to be reinforced on the other hand by such warnings and directions as the trial judge may think it appropriate to give them as the trial proceeds, in particular when he delivers his charge before they retire to consider their verdict."

[29]The submissions on behalf of the respondents are based on what we accept will be the generation of huge public interest in the case and in the reporting of Mr Lawson's opening of the Crown's case, the judge's sentencing remarks and the sentence itself. That will be of true and genuine public interest, not gawping regard of a prurient nature.

[30]A week ago today, in a different constitution over which I presided, this court considered a point arising from pre-trial publicity. For reasons connected with that case we ordered that there should be no report of the judgment until the conclusion of the trial. However, what I said then is something with which my colleagues in this case also agree. As it has no bearing on the decision where the prohibition was imposed, we adopt what was said then as apposite to this case too.

However, he then went on:

[31]There is a feature of our trial system which is sometimes overlooked or taken for granted. The collective experience of this constitution as well as the previous constitution of the court, both when we were in practice at the Bar and judicially, has demonstrated to us time and time again, that juries up and down the country have a passionate and profound belief in, and a commitment to, the right of a defendant to be given a fair trial. They know that it is integral to their responsibility. It is, when all is said and done, their birthright; it is shared by each one of them with the defendant. They guard it faithfully. The integrity of the jury is an essential feature of our trial process. Juries follow the directions which the judge will give them to focus exclusively on the evidence and to ignore anything they may have heard or read out of court. No doubt in this case Butterfield J will give appropriate directions, tailor-made to the individual facts in the light of any trial post the sentencing hearing, after hearing submissions from counsel for the defendants. We cannot too strongly emphasise that the jury will follow them, not only because they will loyally abide by the directions of law which they will be given by the judge, but also because the directions themselves will appeal directly to their own instinctive and fundamental belief in the need for the trial process to be fair.

[32]In this case there are at least two safeguards against the risks to which our attention has been directed. There is the responsibility of the media to avoid inappropriate comment which may interfere with the due administration of justice in this case and there is the entire trial process, including the integrity of the jury itself.

[33]In those circumstances and for those reasons this appeal will be allowed. MR NICOL: My Lord, I am very grateful. Will your Lordships then set side the order of Butterfield J? THE PRESIDENT OF THE QUEEN'S BENCH DIVISION: Yes. MR NICOL: My Lord, can I say on behalf of all present how grateful we are to your Lordships and the other members of the court staff for sitting so late on a Friday? THE PRESIDENT OF THE QUEEN'S BENCH DIVISION: Thank you, Mr Nicol. May I raise two sub-texts? First, any issues about address and so on, which have been raised by Mr O'Connor (and there may be other similar points which will no doubt be taken up in discussion with Mr Lawson rather than you), any problems about those should be dealt with by Butterfield J in due course. The second is directed more at Mr Laidlaw (but it may be at anybody else): Can there be a certain amount of commonsense restraint about comments by prosecutors following the sentencing hearing? MR LAIDLAW: Yes, my Lord. THE PRESIDENT OF THE QUEEN'S BENCH DIVISION: I was not referring to you or to Mr Lawson. MR LAIDLAW: I know that you were not. THE PRESIDENT OF THE QUEEN'S BENCH DIVISION: But we open our papers and we see that some spokesman for the prosecution had something to say. We wonder whether, certainly in this case at this stage, any comment would be appropriate. MR LAIDLAW: I will ensure that that matter is raised with the Director personally. THE PRESIDENT OF THE QUEEN'S BENCH DIVISION: Thank you very much. The other point is that it also applies to any solicitor or any spokesman on behalf of any of the defendants at trial. Very well, thank you all very much. ________________________________________________________

Cited in 13 later judgments

and 4 more of the most senior