Attorney General v Associated Newspapers Ltd & Anor [2012] EWHC 2981 (Admin)
Case No CO/9898/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand London WC2A 2LLDate Tuesday, 16 October 2012
Between
HER MAJESTY’S ATTORNEY GENERALClaimant
B e f o r e:
PRESIDENT OF THE QUEEN'S BENCH DIVISION
MR JUSTICE TUGENDHAT
v
Between
ASSOCIATED NEWSPAPERS LIMITEDDefendantMGN LIMITEDDefendantComputer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 0207 404 1424(Official Shorthand Writers to the Court)David Perry QC and Jonathan Hall (instructed by TreasurySolicitor) for ClaimantJonathan Caplan QC (instructed by Reynolds Porter Chamberlain LLP) for First DefendantPushpinder Saini QC and Kate Gallafent (instructed by Reynolds Porter Chamberlain LLP) for Second DefendantJ U D G M E N T(As Approved by the Court)
[1]unsafe.[2]which we have referred.[3]action. Secondly, both make the point that this was a difficult judgment call in the particular and unique circumstances of this case given the public interest.
Third, in the case of both newspapers the material was reviewed
[4]by lawyers as part of their standard practice.[5]not been brought before the court.
Fifth, neither counsel nor the judge referred to these
[6]particular articles when discharging the jury.[7]before us.[8]of bringing these proceedings. It is clear, in our judgment, as follows from what we said in June, that both newspapers went further than what was permitted. We have little doubt that they should have appreciated the risk under the strict liability rule at the particularly sensitive point in time at which the decision was made to publish. However, we can conclude that this was a case where there was an error of judgment through a failure to properly analyse the articles - an analysis which was nonetheless essential at that point in time.[9]the risks can be so great.[10]this case, that can no longer be seen as an excuse.[11]had justice.[12]returned and others remain outstanding.
MR CAPLAN: I am never sure whether I need to ask for time, but
[13]can I ask for 14 days?[14]out two cheques. MR CAPLAN: Thank you very much.[15]There is no other way other than defending ourselves in these proceedings that we can ventilate our complaint that[16]there is an uneven playing field here.[17]illustration. MR SAINI: Well, either to have been here too, or the Attorney General as a public officer has to make sure that it does not take proceedings which interfere with my client's Article 8 rights and chill its freedom of expression, and at the same time no proceedings are taken against, for example, Sky News or the Sun when they have published material which is just as, if not more, serious than that material which this court has considered. One could say, well, you should perhaps bring a separate claim against the Attorney General for breaching your Article 10 rights, but that would not be the appropriate course. The appropriate course would have been for this court, in our submission, contrary to what the court has done, to have decided that it would not be consistent with Article 10 for proceedings to be taken against my clients and not taken against others. What justification is there, one asks rhetorically, for this inequality of treatment, and which other forum is there where one can make this complaint? So we submit that is an appropriate issue for the Supreme Court.[18]publishers?[19]factors in play.[20]anything --[21]definition, therefore, this court had concluded --[22]people who have not been before the court.[23]situation.[24]that could be said to be different. We made no conclusion as to the others. I mean, if the Attorney wanted to bring proceedings against the Sun now, or others -- I mean, obviously I think it would be difficult for either of us to hear it, but there are plenty of my colleagues who could[25]hear it. He has decided -- there we are. MR SAINI: My Lord, that is one point. The second point is that there is no higher court authority considering the issue of the appropriate test in the case of multiple publications where pre-existing publications, whether or not in contempt, having prejudiced (inaudible). How much further does the second publication -- and those are the publications of the Daily Mail and Daily Mirror -- how much further they have to go. We say, with respect to the court, that the conclusion arrived at -- and this is always a difficult submission for an advocate to make -- was perverse, because when one looks at what was already in the public domain, the jury had convicted this individual of the abduction and murder of Milly Dowler. It knew he was already in prison for two murders, and it had been told the night before that this person was probably associated with the abduction and murder of Lyn and Megan Russell. It is, with respect, difficult to see how we could have significantly increased the risk. But my Lord has my submissions. Therefore we seek permission to appeal. MR CAPLAN: My Lord, I should say, I am not adding anything, but I will support the application. THE PRESIDENT: Of course you will.[26]conducted before us and we see no point of law arising.
The order under s.4(2)that has been drawn up is simply in these
[27]terms, Mr Saini:
"It is ordered that no report of these proceedings or any part of them is to be made until the conclusion of the proceedings in Boyle."
Is that sufficient? I am not sure that is right, actually.[28]be that those proceedings do not necessarily conclude.[29]happens if they do not agree?[30]example, issues of liability and then not quantum.[31]and then give you liberty to apply. MR SAINI: I am obliged, my Lord.