Attorney General v. Associated Newspapers Limited and Others [1994] UKHL 1

House of Lords

Case No SESSION 1993-94

Between

Attorney GeneralAppellant

Associated Newspapers Limited and OthersRespondent

Before

Lord Keith of Kinkel

Lord Bridge of Harwich

Lord Goff of Chieveley

Lord Lowry

Lord Lloyd of Berwick

LORD BRIDGE OF HARWICH

My Lords,

for the reasons given in the speech to be delivered by my noble and learned friend Lord Lowry, which I have read in draft and with which I agree, I would dismiss these appeals.

LORD BRIDGE OF HARWICH:

I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Lowry. For the reasons he gives, I would dismiss these appeals.

LORD GOFF OF CHIEVELEY:

I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Lowry. For the reasons he gives, I would dismiss these appeals.

LORD LOWRY:

My Lords,

this appeal is concerned with the meaning of section 8(1) of the Contempt of Court Act 1981 ("the Act"), which reads:

"(1) Subject to subsection (2) below, it is a contempt of court to obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings."

The question is whether the word "disclose", as used in the subsection, refers exclusively to disclosure of information by a juror or signifies disclosure generally, including both disclosure by a juror and (where the facts published were not already well known) publication by a newspaper.

As your Lordships have seen, this subsection is expressed to be subject to section 8(2) :

"(2) This section does not apply to any disclosure of any particulars-- (a) in the proceedings in question for the purpose of enabling the jury to arrive at their verdict, or in connection with the delivery of that verdict, or (b) in evidence in any subsequent proceedings for an offence alleged to have been committed in relation to the jury in the first mentioned proceedings, or to the publication of any particulars so disclosed."

The only relevance, however, of subsection (2) for present purposes is that the words in the last line are consistent with the argument that the publication (in a newspaper, for example) of particulars already disclosed by a juror would itself be regarded as a disclosure if it had not been expressly excluded by the words referred to.

Of the three appellants, the first is the publisher of a newspaper, the Mail on Sunday , the second was, on July 5, 1992, the editor and the third, a journalist, is the City editor.

On February 11, 1991, a serious fraud trial, which became known as "the Blue Arrow trial", commenced at the Central Criminal Court. A year later, to the day, the jury retired. On February 14, 1992, one individual defendant was acquitted and four were convicted of conspiracy to defraud. They received suspended sentences of imprisonment on February 17. (Two other individuals and the corporate defendant had been found not guilty by direction.) On July 16, 1992, the appeals of the convicted defendants were allowed by the Court of Appeal (Criminal Division) on the ground that the trial judge's decision to sum-up to the jury on only one issue was a material irregularity.

On Sunday July 5, 1992, an article about the Blue Arrow trial written by the third appellant and headed "Common People--Common Sense--Common Justice" appeared in the Mail on Sunday . On July 10, 1992, the Attorney-General instituted proceedings against the appellants under the Act, alleging contempt contrary to section 8(1) in that the article "disclosed particulars of statements made, opinions expressed, arguments advanced and votes cast by members of a jury in the course of their deliberations" in the Blue Arrow trial. It was conceded at the hearing in the Divisional Court (Beldam L.J. and Tudor Evans J.) on November 5 and 6, 1992, that the article contained the particulars alleged but the appellants contended that, on the true construction of section 8(1), the publication of the article did not amount to a disclosure of those particulars, saying that such disclosure could be made only by a juror. On November 12, the Court gave judgment, held against the appellants and fined them £30,000, £20,000 and £10,000 respectively for their contempt. From this decision, with the leave of this House, the appellants have appealed both on the question of the interpretation of section 8(1) and as to the amount of the fines.

Beldam L.J., as reported in [1993] 3 W.L.R. 74, 75G , has described both the article and the way in which the material for it came to hand:

"Early in July 1992 Mr Clive Wolman a journalist and editor of a city section, wrote a newspaper article in which he attributed to jurors in R. v. NatWest Investment Bank, known as the 'Blue Arrow' trial, 'accounts by three jurors about how they actually reached their decision'. The article was shown to the editor of the Mail on Sunday who decided to publish it in the Money Analysis section of the issue on July 5. The article revealed the statements, opinions and arguments of some members of the jury as they discussed their verdicts. It gave the thoughts of some jurors on the evidence and the opinion of one member of the jury that another showed a complete lack of understanding, only wanted to drag the case out and had agreed with the verdict only because he wanted to get home. It related comments made by another juror about the defendants, and how his reluctance to believe in their guilt had been overcome, and it recounted how certain other jurors had been persuaded to change their minds in the course of the deliberations.

How the newspaper was able to reveal to the readers of the Mail on Sunday these confidential details of the jury's deliberations has not been disclosed to the court. It is, however, known that about two weeks after the conclusion of the Blue Arrow trial an advertisement appeared in the London Evening Standard offering a reward to jurors who had taken part in the trial if they contacted a box number. A woman posing as an American researcher in Massachusetts was said to be seeking data for a comparative study. Two members of the jury answered the advertisement. Other members were contacted by telephone by a woman who avowed that she was preparing a paper for university studies. After preliminary meetings, the initial scruples of two of the jurors were overcome and they were persuaded to answer questions about the confidential proceedings in the jury room. One was paid £200 and the other £100. The journalist denies any knowledge of the advertisement in the Evening Standard . He asserts that he later learnt from the 'researchers' of the interviews which had taken place and that he received from those researchers 'transcripts of their interviews'.

He then telephoned and spoke directly to one of the jurors of whose interview he had a transcript. Although the journalist does not accept the sworn evidence of the juror that he refused his agreement to publish the information, which he had supplied under the clearest assurance that it was for research only and not for publication, he must have realised that the information had been supplied in confidence. One would have expected in these circumstances, as the juror asserted had happened, that a responsible journalist would have sought the consent of the juror to disclose information he had given to the professed researcher, and without that consent would have respected his confidence. It seems a rather plastic ethic which protects the deceiving source yet asserts a licence to betray the confidence of the deceived.

However that may be, the journalist was aware that he was including in the article statements made, opinions expressed and arguments advanced by members of the jury in the course of their deliberations in the Blue Arrow trial. In the same edition of the Mail on Sunday in a column drawing attention to the main feature in the Money Section , Mr Wolman wrote:

'Three jurors in one of the biggest City fraud trials this century have given the full inside story of how they reached their decision. No one has ever previously investigated, let alone published, in any detail how jurors make their decisions because of the restrictions imposed by the law. The jurors served for a year in the Blue Arrow trial which ended in February. Of the 10 defendants, four were ultimately found guilty of conspiracy to defraud ...'

In the main article he said:

'But in Britain the Contempt of Court Act 1981 makes it illegal for jurors to "disclose" what goes on in a jury's deliberations. However, having received transcript of the Blue Arrow interviews, we believe these edited extracts should be published ..."'

To this summary I must add an extract from the agreed statement of facts and issues:

"Before the Divisional Court, the appellant's evidence stated (and it was no part of the Respondent's case to contend to the contrary) that:

(1) Those particulars had been provided to the appellants by American researchers who had earlier (and without the prior knowledge or involvement of the appellants) interviewed members of the Blue Arrow jury.

(2) The American researchers were not acting on behalf of the appellants in obtaining or soliciting the particulars from the members of the jury.

(3) The appellants did not obtain any of the particulars included in the article directly from a member of the jury.

(4) The appellants published the particulars included in the article because they sincerely believed that those particulars made an important contribution to the public debate about whether serious fraud trials ought to be conducted before a jury, and because the appellants believed that any interference with such publication would be a breach of

Article 10 of the European Convention on Human Rights

(the right to freedom of expression)."

Mr Pannick Q.C., who appeared with Miss Rose for the appellants, accepted, as he had done before the Divisional Court, that, if the word "disclose" in section 8 was to be given the unrestricted meaning contended for by the Attorney-General, a contempt was proved. But he submitted that the scope of section 8(1) could be either widely or narrowly interpreted and that in context the word "disclose" applied only to a revelation by a juror to another person and not to a further revelation by that person or by another person in his turn. While conceding, frankly but also unavoidably, that what the appellants did amounted to disclosure in the ordinary sense of that word, he contrasted publication with disclosure and contended that the word "disclose" must here be given a restricted meaning.

The cardinal rule, as stated in the textbooks on interpretation, for example in Maxwell on the Interpretation of Statutes (12th ed., 1969), at pp. 28-29, is that words in a statute prima facie bear their plain and ordinary meaning. If that rule is applied without modification, then the appellants disclosed the relevant particulars. There is no conflict or contrast between publication and disclosure. The latter activity has many manifestations and publication is one of them. To disclose is to expose to view, make known or reveal and in its ordinary meaning the word aptly describes both the revelation by jurors of their deliberations and further disclosure by publication in a newspaper of the same deliberations, provided always--and this will raise a question of fact-- that the publication amounts to disclosure and is not a mere republication of already known facts.

I have looked in vain, first in section 8 and then in the other provisions of the Act, for a clue which might justify the imposing of a restriction on the natural meaning and effect of the word "disclose". Indeed, as I have observed, the concluding words of section 8(2) seem to me to point away from the restriction contended for. Still following ordinary English usage, I can find no principle which lays down that something which has been disclosed by A to B cannot be further disclosed by B to C and by C, in his turn, to the public at large.

I might be content to reject the appellant's case at this point but, having regard to the tenacious arguments presented to your Lordships, I will continue. It is said that a court should give such a construction to a statute as shall suppress the mischief and advance the remedy and, in obedience to this maxim, words have often been given an extended meaning where the usual meaning does not achieve the obviously intended object of the legislation. In this case, however, the Attorney-General does not need to go as far as this: he submits that all he needs to do, in order to achieve Parliament's objective, is to prevent the ordinary meaning of the keyword "disclose" from being restricted. It is, of course, also true that general words may have to bear a restricted meaning if it is obvious that this must have been Parliament's intention. Let me, therefore, in the light of these propositions, consider the state of the law before the Act was passed and the mischief which then appeared to call for a remedy.

As Beldam L.J. said at p. 79B, the background to the enactment of section 8 is significant and illuminating. I shall merely emphasise, with the aid of quotations, some salient points in the Lord Justice's most helpful summary. It is indeed likely that the Hamlyn Lectures of both 1955 and 1956 (referred to in the judgment, 7th Hamlyn Lecture, The Proof of Guilt (1955), Professor Glanville Williams; 8th Hamlyn Lecture, Trial by Jury (1956), Sir Patrick Devlin) stimulated research into the workings of the jury system and I draw attention to a sentence in paragraph 355 of The Morris Report (1965) (Cmnd. 2627) on jury service:

"We recognise that it is impossible to make a proper assessment of the merits of trial by jury in the absence of the adequate knowledge of what does happen when the jury retires, but we agree with those of our witnesses who argued that if such disclosure were to be made, particularly to the Press , jurors would no longer feel free to express their opinions frankly when the verdict was under discussion, for fear that what they said later might be made public." (My emphasis.)

The words which I have emphasised highlight the kind of mischief which the Committee feared if disclosure were made to the press, with the attendant publicity which that disclosure would be likely to involve. This view echoed the sentiment of Lord Hewart C.J. who, when dismissing the appeal of the poisoner Armstrong ( Armstrong

(1922) 16 Cr.App.R. 149

, 159, [1922] 2 K.B. 555, 568 ) said:

"If one juryman might communicate with the public upon the evidence and the verdict so might his colleagues also, and if they all took this dangerous course differences of individual opinion might be made manifest which, at the least, could not fail to diminish the confidence that the public rightly has in the general propriety of criminal verdict." (My emphasis),

and also of Bankes L.J. in Ellis v. Deheer ([1922] 2 K.B. 113, 118) :

"I may say that I saw the other day with astonishment and disgust the publication in a newspaper of a statement by the foreman of the jury in an important criminal trial as to what took place in the jury room after the jury had retired. I do not think it necessary to express any opinion as to whether such a publication amounts to a contempt of Court, but I feel confident that anyone who read that statement will realise the importance of maintaining the rule." (My emphasis.)

Mr Pannick has placed some emphasis (in support of his contention) on the terms of reference given to the Criminal Law Revision Committee which made its 10th Report, Secrecy of the Jury Room (Cmnd. 3750) in 1968, having been asked to consider:

"whether statutory provision should be such [as] to protect the secrecy of the jury room: and in particular whether, and, if so, subject to what exemptions and qualifications, it should be an offence to seek information from a juror about a jury's deliberations or for a juror to disclose such information."

The Committee did not then think that a statutory sanction was needed and said at paragraph 4:

"We think it is as true today ... that it has been generally accepted by the public as a rule of conduct that what passes in the jury room during the discussion by the jury of what their verdict should be ought to be treated as private and confidential. We would affirm that rule of conduct and would in no way wish to undermine it. We are of opinion that secrecy has been well maintained and that such breaches or attempts to break it as have become known so far have not established a mischief so extensive or serious that it calls for legislation and punishment."

Paragraph 9 of the Report, quoted in full by Beldam L.J., [1993] W.L.R. 80 contains a statement of the Committee's view:

"that it is contrary to the public interest that the issue before the jury should be 'retried' in public with the use of information supplied by one or more of the jurors." (See [1993] 3 W.L.R. 74, 80 , [1993] 2 All E.R. 535, 541 .)

The proximate feature, however, of the background to the new legislation (by which I mean section 8 of the Act, which by its other provisions dealt with other aspects of contempt) is the reported case of Attorney-General v. New Statesman and Nation Publishing Co. Ltd

(1981) 69 Cr.App.R. 193

, [1981] Q.B. 1 in which the Divisional Court had to consider whether publication in a magazine of an interview with a juror who came forward without reward to divulge what had happened in the jury room constituted a contempt of court. Beldam L.J. (at p. 80H and p. 547) summarised as follows:

"In the circumstances of that case there was no contempt but in the course of his judgment Lord Widgery C.J. said, at p. 7:

'We were reminded that, until a few years ago, it was accepted that the secrets of the jury room had to be treated as secret. The solemn obligation by jurors to observe secrecy was well maintained and breaches of the obligation were kept at an acceptable level. It had never been necessary to invoke the law of contempt in respect of such breaches, but that law had always been available for use in any case in which the administration of justice would have been imperilled. Recently, however, the solemn obligation of secrecy has been shown to be breaking down; a considerable number of publications involving jury room revelations, some more objectionable than others, has occurred. Accordingly, in view of the apparently diminishing respect for the convention of observance of jury secrecy and the risk of escalation in the frequency and degree of disclosures, it has become right for the Attorney-General to invoke the law of contempt in relation to this article in the New Statesman since it represents a departure from the norm and is a serious and dangerous encroachment into the convention of jury secrecy.'

After considering the report of the Criminal Law Revision Committee, to which we have referred, he said, at p. 11:

'The evidence before us shows that for a number of years the publication of jury room secrets has occurred on numerous occasions. To many of those disclosures no exception could be taken because, from a study of them it would not be possible to identify the persons concerned in the trials. In these cases, jury secrets were revealed in the main for the laudable purpose of informing would-be jurors what to expect when summoned for jury service. Thus, it is not possible to contend that every case of post-trial activity of the kind with which we are concerned must necessarily amount to a contempt."'

I might add two further extracts from the judgment:

(1) (p. 9H): DPAO3"As the observations of these judges [Lord Hewart C.J., Bankes L.J. and Atkin L.J.] demonstrate, there are powerful arguments against breaching the secrets of the jury room. Serious consequences may flow from an approach to a juror, particularly after a trial which has attracted great publicity, followed by the publication of an account of what the juror had said about the discussion in the jury room. If not checked, this type of activity might become the general custom. If so, it would soon be made to appear that the secrecy of the jury room had been abandoned, and if that happened, it is not beyond the bounds of possibility that trial by jury would go the same way. Looking at this case as a whole, we have come to the conclusion that the article in the New Statesman does not justify the title of contempt of court. That does not mean that we would not wish to see restrictions on the publication of such an article because we would. But our duty is to say what the law is today and to see whether today the activity in question is a contempt of court. We are unable to say that it is and we would therefore refuse the application."

The first of these passages maintains the emphasis already seen on the publication of what the juror has said, while the second shows that publication, although undesirable, was not in itself a contempt at common law.

I must add that Mr Pannick, justifiably in the interests of correct interpretation, has drawn attention to another passage in the judgment at p. 81G:

"Parliament, mindful of the decision in The Sunday Times v. United Kingdom [1979] 2 E.H.R.R. 234, also needed to ensure that the restrictions or penalties it enacted were no greater than was necessary in a democratic society to prevent disclosure of information received in confidence and to maintain the authority and impartiality of the jury as part of the administration of justice."

This statement, of course, is always subject to the proviso that, if the enactment is clear, compliance with the European Convention on Human Rights is not immediately in issue.

Clause 8 of the Contempt of Court Bill 1980 is of interest at this stage of the argument, not for the purpose of construing the word "disclose", but in order to see what mischief the Bill was intended to address. The first contempt specified was publication of any of the particulars which were subsequently listed in section 8(1) of the Act. The second contempt was disclosing any such particulars with a view to their being published or with knowledge that they might be published, and the third was soliciting disclosure with a view to publishing. Thus the primary emphasis of clause 8 as introduced was on preventing publication of what had been said and done in the jury room. This emphasis was in harmony with the background already depicted. Accordingly, the mischief which was thought to need a remedy is seen to have included publication of the forbidden particulars as well as their disclosure by individual jurors, which confirms the plain and ordinary meaning of "disclosure" as the correct meaning in section 8.

Each party to the appeal advanced arguments based on the supposed absurdity of the other party's interpretation. The appellants contended that the respondent's construction would render in contempt the reader of a newspaper who communicated a part of its contents to a neighbour who was then unaware of what the paper had said. In my view, my Lords, this argument confuses disclosure with republication and I do not find it at all persuasive. If an item has been published in the paper, it has become a matter of public knowledge, and to describe the communication of that item of news as disclosure is, to my mind, a misuse of language.

Mr Moses Q.C., on the other hand, who appeared with Mr Havers for the respondent, submitted that it would be absurd, when the long deplored activity was the publication of the jury's deliberations, if only the offending juror and his confidant were amenable, while the publisher went scot-free. The act of a juror might be innocent and innocuous, whereas the release of the prohibited information to the public was bound to be much more harmful, actually or potentially, to the administration of justice. He further argued that it would be strange if Parliament hoped and intended to control the unwanted and harmful activities of powerful individuals and groups with an interest in the acquisition and dissemination of the prohibited information and the means to pay for it, if necessary, by merely enacting a prohibition and imposing sanctions on individual jurors.

One could instance the case of a jury-keeper who is told about or overhears the jury's deliberations. Can he not be guilty of disclosure if he reveals what he has heard to a newspaper? And are the newspaper's reporter and publisher immune if the deliberations are published? I scarcely think so. So far as the test of absurdity helps to decide the issue, my verdict is overwhelmingly on the side of the respondent.

At this point I cannot improve on what was said by Beldam L.J. at p. 83D and p. 544:

"We now come to the words of the section itself, and can find no warrant for qualifying the meaning of the word 'disclose' by confining it solely to disclosure by the members of the jury. On the contrary, the course of argument convinced us that Parliament intended no such restriction. The word 'disclose', in origin to open up or uncover, has come to mean 'to open up to the knowledge of others' ( Shorter Oxford Dictionary ). It is a word wide enough to encompass the revealing of the secrets of the jury room by a juryman to his friend or neighbour as well as the opening up of such knowledge to the public as a whole by someone to whom it has been revealed. And in the light of the background to which we have referred, we see every reason why Parliament should have intended the word 'disclose' to cover both situations. Nor do we regard it as significant that the secrets came into the hands of the newspaper indirectly. The existence of a market for the transcript of interviews with jurors containing prohibited details of their deliberations is as inimical to the interests of justice as the direct solicitation for money which occurred in this case. Section 8 is aimed at keeping the secrets of the jury room inviolate in the interests of justice. We believe that it would only be by giving it an interpretation which would emasculate Parliament's purpose that it could be held that the widespread disclosure in this case did not infringe the section. By declaring such conduct to be a contempt, Parliament recognised the exceptional discretion vested in a court to protect the process of justice and its ability to reflect the varying shades of infringement. In our judgment the Attorney-General has proved a breach of section 8(1) by the publisher, the editor and the journalist."

In order to get home, the appellants rely, as they must, on the submission that the word "disclose" in its context is ambiguous, but I do not consider that this case poses for your Lordships an example of ambiguity. The appellants say that the word is ambiguous because it can refer either to disclosure by a juror or to disclosure through newspaper publication or by some other means. The true view is that the word "disclose" describes and includes both (or all) kinds of disclosure. It is a comprehensive word. The question being whether it describes merely A or A and B together, the answer, having regard to all the points I have discussed is "A and B", using the plain and natural meaning.

This case is, I submit, even stronger against ambiguity than DPP v. Ottewell

(1968) 52 Cr.App.R. 579

, [1970] A.C. 642 , in which a choice was made between two meanings, and also stronger than Attorney-General's Reference (No. 1 of 1988

(1989) 89 Cr.App.R. 60

, [1989] A.C. 971 , where the secondary or general meaning of a word was preferred to the primary meaning. I venture to repeat what I said in the latter case at p. 64 and p. 991:

"The appellant relies on the principle that any ambiguity in a penal statute should be resolved in favour of the defence: see Tuck & Sons v. Priester (1887) 19 QBD 629 , 638 per Lord Esher M.R.; and says that the statute is, at best from the Crown's point of view, ambiguous. This submission must be qualified by Lord Reid's observation, on which the Court of Appeal relied, ante , p. 938c and p. 5 respectively, in DPP v. Ottewell (1968) 52 Cr.App.R. 679, 686, [1970] A.C. 642, 649 :

'I would never seek to diminish in any way the importance of that principle within its proper sphere. But it only applies where after full inquiry and consideration one is left in real doubt. It is not enough that the provision is ambiguous in the sense that it is capable of having two meanings. The imprecision of the English language (and, so far as I am aware, of any other language) is such that it is extremely difficult to draft any provision which is not ambiguous in that sense. The section is clearly ambiguous in that sense: the Court of Appeal (Criminal Division) attach one meaning to it, and your Lordships are attaching a different meaning to it. But if, after full consideration, your Lordships are satisfied, as I am, that the latter is the meaning which Parliament must have intended the words to convey, then this principle does not prevent us from giving effect to our conclusions.'

The next step, therefore, is to decide whether Parliament must have intended the word 'obtained' to convey and include its secondary or general meaning. If so, the offence is made out; if, however, one cannot be satisfied of that, then the ambiguity remains and the Tuck & Sons v. Priester

(1887) 19 QBD 629

, principle compels your Lordships to adopt the primary or narrow meaning."

The arguments founded on ambiguity accordingly lose their significance and I need not take account of the principle in Tuck & Sons v. Priester

(1887) 19 QBD 629

or of the observation of Lord Reid in George Wimpey & Sons Ltd v. BOAC [1955] A.C. 169, 191 , that, where the meaning of a statutory provision is doubtful that interpretation should be preferred which makes the least alteration in the law. The appellants, however, advanced two further arguments which depended on the presence of an ambiguity and about which I think it is right for me to say something despite having reached a conclusion which renders those arguments irrelevant.

The first argument took the form of recourse to the Parliamentary history of the Act, in reliance on Pepper (Inspector of Taxes) v. Hart

[1993] AC 593

. In fact the appellant's submissions seemed to me to be designed to blunt the effect of the respondent's similarly based argument which was foreshadowed in his printed case.

As I have noted, the emphasis in clause 8 of the Bill was on publication. There was an exemption in clause 8(2) for publications of a general character which did not identify particular proceedings or particular jurors. As a result of an amendment, originally proposed but withdrawn, in this House where the Bill had been introduced, and of a new amendment adopted by this House and then accepted by the House of Commons (which had already considered and amended the Bill), the exemption in favour of publications of a general character disappeared and section 8 assumed its present form. When the amended clause was considered by the House of Commons, the Attorney-General, in moving that the House agree with the amendment, said:

"Instead, we have in Lords amendments Nos. 1, 2 and 3 a new and complete prohibition on the publishing of any details of a jury's deliberations. Thus, not only would it be prohibited to publish anonymous reminiscences but all forms of publication of the results of research would also be prohibited." (Hansard, H.C., July 22, 1981, Col. 410). (Emphasis supplied.)

Therefore the respondent contends that, instead of transferring the prohibition against disclosure from the publishers of information to individual jurors, Parliament has extended the ban so as to include all forms of disclosure. I consider that this is a difficult inference for anyone to resist but, having regard to the complicated and controversial Parliamentary history of section 8, I deliberately refrain from discussing the question whether it would have been appropriate for your Lordships to apply Pepper (Inspector of Taxes) v. Hart to the facts of this case.

The appellants, as their next point, made a positive and emphatic case, as they appear to have done in the court below, on the basis that freedom of expression is protected by

Article 10 of the Convention

on Human Rights and that an ambiguous statutory provision must therefore be construed so as to conform with the Convention. The cases show, and the appellants do not deny, that the existence of an ambiguity is requisite for this doctrine to apply in our courts. At the same time it may be helpful if, without going into great detail, I take note of the appellant's submissions.

Article 10 provides as follows:

"(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."

Mr Pannick contended that the appellant's construction should be adopted because, if it were, the restriction on freedom of expression would be less than if the wider construction prevailed. He rightly submitted that Article 10(2) listed exceptions which had to be strictly construed; it was common ground, as the Divisional Court had recognised at p. 78E, that the term "judiciary", as there used, comprised the machinery of justice as well as the judges.

Article 10(2) formed part of the background to the Divisional Court's discussion of the all-important role of the jury and the consequent importance of ensuring that the jury's deliberations do not become public. I would make only two observations. I cannot think that the argument is sound which says that it can be in the interests of freedom of expression, and not harmful to the authority and impartiality of the court system, to allow the publication and discussion of matters that a law which is for the sake of argument assumed to be acceptable has forbidden jurors to reveal to anyone. Secondly, if it is legitimate, on the ground that disclosure by a juror will be harmful to the authority and impartiality of the court system, to enact, "in response to a pressing social need", an absolute prohibition against such disclosure, I do not see how it can be wrong also to prohibit a potentially more harmful further disclosure by way of publication. It seems to me that either both prohibitions are justified or neither is. On this basis the appellant's Convention-based argument in favour of the narrow construction rather than the wide one would disappear.

On the footing that the appellants were guilty of contempt, the fines remain a live issue and I do not doubt that this House, to which the appeal lies directly from the Divisional Court's decision, has, and ought where appropriate to exercise, jurisdiction to revoke or amend any punishments which have been decreed if they appear to the House to be wrong in principle or manifestly disproportionate either to the offence or one to another. That jurisdiction, however, should in my opinion be sparingly exercised.

I need not refer again to the facts noted by Beldam L.J. or set out afresh the reasoning (given at p. 83H et seq and pp. 544, 545) which led the Court to fine the appellants as it did. I am content to say that I do not consider that interference with the fines by your Lordships in this case would be justified on any ground.

Accordingly, for the reasons I have given, I would dismiss these appeals.

LORD LLOYD:

I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Lowry. For the reasons he gives, I too would dismiss these appeals.