AS TO THE ADMISSIBILITY OF
Application No. 34324/96
by BRITISH BROADCASTING CORPORATION SCOTLAND,
Neil McDONALD, Murdoch RODGERS and Susan DONALD
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 23 October 1997, the following members being present:
Mrs J. LIDDY, President
MM M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
Mrs M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 8 October 1996 by
BRITISH BROADCASTING CORPORATION SCOTLAND, Neil McDONALD, Murdoch
RODGERS and Susan DONALD against the United Kingdom and registered on
19 December 1996 under file No. 34324/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The first applicant is the British Broadcasting Corporation in
Scotland (BBC Scotland). The second, third and fourth applicants, who
are all resident in Scotland, are respectively the editor, producer and
presenter of a television programme series entitled "Frontline",
produced by BBC Scotland. The applicants are represented before the
Commission by Mr. Alistair Bonnington, a solicitor employed by BBC
Scotland, with offices in Glasgow. The facts of the application, as
submitted by the applicants' representative, may be summarised as
follows.
A. The particular circumstances of the case
In October 1995 the applicants produced and broadcast a
television programme entitled "Frontline Scotland", which included a
feature entitled "Beaten by the System". The feature concerned
allegations that prisoners, who had been involved in prison riots in
July 1993 and January 1994 in two Scottish prisons, had been assaulted
by prison officers when they had been removed to Barlinnie prison,
Glasgow. The applicants intended to broadcast a further programme in
the "Frontline Scotland" series on 30 May 1996. That programme was to
include an update on the feature previously broadcast, again under the
title "Beaten by the System" ("the broadcast").
On 9 May 1996 the Lord Advocate in Scotland served an indictment
on three prison officers ("the prison officers") at Barlinnie prison
alleging that they, whilst acting along with others, assaulted six
named prisoners in the segregation unit at Barlinnie prison on
5 January 1994. The trial of the prison officers was to be heard before
a jury at Glasgow High Court on 17 June 1996.
The prison officers presented a petition to the High Court of
Justiciary in Edinburgh on 30 May 1996. The petition asked the High
Court of Justiciary to use its powers of "nobile officium" (inherent
equitable jurisdiction):
"to prohibit the [first applicant] from broadcasting or causing
to be broadcast in Scotland, until the completion of the trial
of [the prison officers], the feature in "Frontline Scotland
Update" entitled "Beaten by the System".
The intervention of the High Court was sought on the grounds that
the broadcast would create a substantial risk that the course of
justice in the proceedings against the prison officers would be
seriously impeded or prejudiced.
The prison officers specifically stated in their petition that
the broadcast:
"would tend to create in the minds of persons who may be called
as potential jurors to try [the prison officers] the impression
that as a matter of course, when prisoners are moved to Barlinnie
prison after a riot, they are assaulted by prison officers in
Barlinnie prison; and that [Dr.S.D] who is a Crown witness in the
case against [the prison officers], is a person whose
credibility, reliability and expertise is enhanced by the
contents of the proposed broadcast."
The broadcast contained no reference to any of the charged prison
officers or to any of the prisoners whom they were alleged to have
assaulted, and no reference was made to the proceedings that were
pending against the prison officers. During the programme Dr. S.D.,
then a prison doctor, was interviewed and expressed his opinion that
the injuries sustained by a certain prisoner were consistent with that
prisoner's account of being kicked and beaten (the prisoner was not a
complainant in the trial of the prison officers). The programme
informed the viewer that Dr. S.D. had been dismissed from his
employment subsequent to his appearance on the programme, despite
having the backing of the British Medical Association and the European
Committee for the Prevention of Torture.
The judgment of the High Court was delivered on 30 May 1996. It
stated, inter alia:
"In our view, the Court does have power under the nobile officium
to make such an order even if it is not formally [in] a contempt
of court under the terms of the Contempt of Court Act 1981. If
this Court, as the High Court of Justiciary, which has under its
protection persons who have been charged by Her Majesty's
Advocate, considers that there is a risk of prejudice to the
trial of such a person then, in our view, this Court has power
to prevent such prejudice from occurring by such means as are
appropriate...
On the whole matter we are satisfied that there is a more than
minimal risk of prejudice to [the prison officers] at their trial
if this programme is broadcast. There is a distinct risk that one
at least out of the fifteen jurors may get the impression from
this programme that [Dr.S.D.] is a witness of considerable credit
whose views should be taken to be of great importance although
that doctor's view may well be challenged during the course of
the trial. ... The only reason why this programme is sought to
be broadcast tonight is not because it is a matter of immediate
public concern, it is simply because this is the last programme
in the series of "Frontline Scotland" and it would be
inconvenient to postpone the matter to the autumn. There is
therefore no question of urgency arising in the broadcasting of
this programme.
In the whole circumstances we are entirely satisfied that it
would be appropriate in this case to make ... an order
prohibiting [the broadcast]... in Scotland, until the completion
of the trial of [the prison officers]..."
The High Court accordingly granted an order prohibiting the
broadcasting in Scotland, until the completion of the trial of the
prison officers, of the feature "Beaten by the System" in "Frontline
Scotland Update".
B. Relevant domestic law
The concept of "nobile officium" in Scots law is an extraordinary
equitable power vested in, inter alia, the High Court of Justiciary.
The applicants submit the following judicial description of the
jurisdiction of "nobile officium":
"wherever the interposition of some authority is necessary to the
administration of justice, and there exists no other judicature
by whom it can competently be exercised, or which has been in use
to exercise it, the Court of Justiciary is empowered and bound
to exercise its powers [of "nobile officium"], on the application
of the proper party, for the furtherance of justice".
The Contempt of Court Act 1981 ("the 1981 Act") creates a defence
to a charge of contempt of court. Where the act applies, by virtue of
Section 2 (2), a publication will only be in contempt of court if it
creates a:
"substantial risk that the course of justice in the proceedings
in question will be seriously impeded or prejudiced".
By Section 5 of the 1981 Act:
"A publication made as or part of a discussion in good faith of
public affairs or other matters of general public interest is not
to be treated as a contempt of court under the strict liability
rule if the risk of impediment or prejudice to particular legal
proceedings is merely incidental to the discussion."
COMPLAINTS
The applicants contend that the order of the High Court of
Justiciary in Scotland prohibiting the broadcast, constituted an
interference with freedom of expression and a violation of Article 10
of the Convention. They complain that the order was not "prescribed by
law" in accordance with Article 10 para. 2 of the Convention, as there
was no finding that the broadcast was a contempt of court under the
1981 Act, rather the prohibition of the broadcast was effected by the
Court using their inherent equitable jurisdiction, "nobile officium".
The applicants further contend that the prohibition of the broadcast
can not be considered "necessary in a democratic society", and that any
risk of prejudice to the prison officers' right to a fair trial, due
to the broadcast, was not sufficiently serious to counterbalance the
public interest in freedom of expression in a democratic society.
THE LAW
The applicants complain that the order of the High Court of
Justiciary prohibiting the broadcast, constituted a violation of
Article 10 (Art. 10) of the Convention.
Article 10 (Art. 10) of the Convention 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."
The Commission would first note that in previous cases it has
left open the question of whether the British Broadcasting Corporation
has the necessary status to bring an application to the Commission
(see, for example, No. 25798/94, Dec. 18.1.96). The question need not
be determined in relation to BBC Scotland in the present case, either,
as the application is in any event inadmissible for the following
reasons.
The Commission considers that the order of the High Court of
Justiciary prohibiting the broadcast constituted an interference with
the applicants' freedom of expression under Article 10 para. 1
(Art. 10-1) of the Convention.
The Commission recalls that such an interference will constitute
a violation of Article 10 (Art. 10) if it does not fall within one of
the exceptions provided for in paragraph 2 of Article 10 (Art. 10-2).
The Commission therefore has to examine in turn whether the
interference in the present case was: prescribed by law, in pursuance
of a legitimate aim, and was necessary in a democratic society (see
Eur. Court HR, Sunday Times v. the United Kingdom judgment of 26 April
1979, Series A no. 30, p. 29, para. 45).
The Commission considers, and the applicants accept, that the
interference was in pursuance of a legitimate aim, that is the
protection of the right of the prison officers to a fair trial. It was
therefore "for the protection of the reputation and rights of others
... or for maintaining the authority and impartiality of the
judiciary".
The applicants however contend that the interference was neither
"prescribed by law" nor "necessary in a democratic society".
The Commission will first consider whether the order was
"prescribed by law". The Commission recalls that the word "law" in the
expression "prescribed by law" covers not only statute but also
unwritten law. The Commission thus considers that the fact that the
High Court of Justiciary did not prohibit the broadcast as a contempt
of court under the 1981 Act, but rather used their powers under their
inherent jurisdiction of "nobile officium" is not, of itself,
inconsistent with the order prohibiting the broadcast being "prescribed
by law". However in order to be "prescribed by law", within the meaning
of Article 10 para. 2 (Art. 10-2), the law must be adequately
accessible and formulated with sufficient precision to enable the
citizen to regulate his conduct (see the above-mentioned Sunday Times
v. the United Kingdom judgment, pp. 30-31, paras. 47 & 49).
With regard to the questions of accessibility and foreseeability
the Commission notes that the power of "nobile officium" has been
described by the High Court of Justiciary, and is quoted by the
applicants, in the following terms:
"wherever the interposition of some authority is necessary to
the administration of justice, and there exists no other
judicature by whom it can competently be exercised, or which has
been in use to exercise it, the Court of Justiciary is empowered
and bound to exercise its powers, on the application of the
proper party, for the furtherance of justice."
The general ground on which the prison officers sought the
intervention of the High Court of Justiciary was that the proposed
broadcast would:
"create a substantial risk that the course of justice in the
proceedings against the petitioners would be seriously impeded
or prejudiced."
The Commission considers that in the circumstances, the power of
"nobile officium", was formulated with sufficient precision, and the
risk that this power would be used to forbid the broadcast was
sufficiently foreseeable.
The interference with the applicants' freedom of expression was
thus "prescribed by law" within the meaning of Article 10 para. 2
(Art. 10-2).
With regard to whether the interference was "necessary in a
democratic society", the Commission recalls that it is necessary to
consider whether the "interference" complained of corresponded to a
"pressing social need", whether the interference was "proportionate to
the legitimate aim pursued" and whether the reasons given by the
national authorities to justify it were "relevant and sufficient under
Article 10 para. 2 (Art. 10-2) (see Eur. Court HR, Handyside v. the
United Kingdom judgment of 7 December 1976, Series A no. 24, pp. 22-24,
paras. 48-50).
The Commission notes that the High Court of Justiciary carried
out a balancing act. They considered that the broadcast of the
programme represented a more than minimal risk of prejudice to the
prison officers at their trial, due in particular to the fact that the
programme featured, and arguably gave enhanced credibility in the minds
of jurors, to Dr. S.D., a key witness against the prison officers. In
addition, the High Court considered that the subject matter of the
broadcast was not a matter of immediate public concern and there was
no urgency in the broadcast, which could be postponed until after the
trial of the prison officers. The Commission notes that the order did
not prohibit the broadcast from ever being shown, it merely postponed
its showing until after the trial of the prison officers.
The Commission considers that in the circumstances the
interference corresponded to the "pressing social need" of ensuring a
fair trial for the prison officers, and that it was "proportionate to
the legitimate aim pursued" in that the broadcast was merely postponed.
Moreover, High Court gave "sufficient and relevant reasons" for its
judgment.
In these circumstances the Commission considers that the
interference with the applicants' freedom of expression was necessary
in a democratic society.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy