AS TO THE ADMISSIBILITY OF
Application No. 25798/94
by the BRITISH BROADCASTING CORPORATION
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 18 January 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 1 November 1994
by the BRITISH BROADCASTING CORPORATION against the United Kingdom and
registered on 29 November 1994 under file No. 25798/94;
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 applicant in the present case is the British Broadcasting
Corporation ("the BBC"), which was established by Royal Charter in
1927. It is represented before the Commission by Ms. G.E. Phillips,
of its litigation department, and Mr. D. Pannick, QC, of counsel. The
facts of the case, as submitted by the BBC's representatives, may be
summarised as follows.
On 20 April 1994 a witness summons was issued to the BBC in the
context of criminal proceedings against two policemen for conspiracy
to pervert the course of justice in connection with investigations into
the death of PC Keith Blakelock during a major riot at Broadwater Farm,
Tottenham, London, on Sunday 6 October 1985. The witness summons
required the BBC to attend court and to produce "all material in your
possession or control (whether transmitted or untransmitted) of or
related to the disturbances at Broadwater Farm Estate, Tottenham, North
London taken on the 6th or 7th October 1985." The summons was later
amended to relate only to 7 October, and was limited to film taken
during daylight hours.
The BBC challenged the witness summons under Section 2 of the
Criminal Procedure (Attendance of Witnesses) Act 1965, which permits
application for a declaration that a summons is of no effect where the
applicant (the potential witness) can satisfy the court "that he cannot
give any material evidence or, as the case may be, produce any document
or thing likely to be material evidence".
As the trial judge was not available, the BBC's application was
heard by the Recorder of London, on 3 June 1994. After hearing the
representatives of the BBC and the defendants and the prosecution to
the criminal case, the Recorder adjourned the case to 8 June 1994 for
the defence to have the opportunity to identify anything in the film
material which they wished to have produced in court, and for the BBC
then to have the opportunity to say in court why they did not wish to
produce it.
On 8 June 1994, counsel for the BBC explained that the BBC had
looked through the film and had found nothing which approximated to WS
(who had been convicted of the murder of PC Blakelock) in the
untransmitted material. The prosecution objected that they had not had
the opportunity to consult the films.
At the end of the proceedings on 8 June 1994, the Recorder made
the following ruling:
"The application was to set aside the summons on the ground that
it was not sufficiently specific. I think there can be no doubt
in anyone's mind now as to what it is that the defence are
seeking to have disclosed. It has been identified ... by the BBC
and can easily be viewed.
I put the matter back without making a specific order on the last
occasion. I put it back so there could be co-operation. I do
not find that there has been co-operation in the terms which were
discussed. ..."
The order applied for by the BBC was therefore not made, and the
BBC was ordered to disclose the film material to the defence within
24 hours. The BBC requested and was refused costs from central funds.
COMPLAINTS
The BBC alleges that the requirement to disclose material which
had been filmed on 7 October 1985 at the Broadwater Farm riots violated
Articles 6 and 10 of the Convention.
Under Article 6 of the Convention, the BBC contends that the
application to set aside the witness order determined its civil
obligations to provide access to the film material, and that in the
context of this determination, the principle of "equality of arms" was
not met. In particular, it complains that it was not permitted to know
why the untransmitted material was said to be potentially relevant to
the issues in the criminal trial, and hence that it could not make
proper submissions as to why the untransmitted material should not have
been disclosed.
Under Article 10 of the Convention, the BBC submits that the
refusal to set aside the witness summons was an interference with the
BBC's freedom of expression because it required the disclosure of
information obtained, despite the considerable risks which this creates
for journalists and film crews. The BBC considers that the
interference with freedom of expression was not prescribed by law in
that the procedure adopted by the Crown Court was arbitrary, and that
it was not necessary in a democratic society because there was no
reason to think that the material which the defendants in the criminal
case wished to see could assist the defence at the criminal trial, or
because it was not necessary to impose an obligation on the BBC to
disclose without giving the BBC a proper opportunity to know the issues
in the criminal trial.
THE LAW
1. The BBC alleges a violation of Article 6 para. 1
(Art. 6-1) of the Convention in connection with the proceedings in
which it challenged a witness summons requiring it to produce evidence
at a criminal trial. Article 6 para. 1 (Art. 6-1) provides, so far as
relevant, as follows:
"1. In the determination of his civil rights and obligations or
of any criminal charge against him, everyone is entitled to a
fair and public hearing ..."
The Commission has considered whether the BBC is a "person, non-
governmental organisation or group of individuals" within the meaning
of Article 25 (Art. 25) of the Convention. However, the Commission is
not required to determine this question in the present case as,
assuming that the BBC does have the necessary status to bring the
application, the application is nevertheless inadmissible for the
following reasons.
The BBC was required to produce filmed material in the context
of criminal proceedings which had been brought against two policemen.
There was therefore no determination of a criminal charge against the
BBC. If Article 6 (Art. 6) is to apply to the proceedings in which the
BBC challenged the witness summons, those proceedings must therefore
have determined the civil rights or obligations of the BBC.
The BBC submits that the proceedings determined its civil
obligation to provide access to the film material.
The Commission recalls that it has previously held that an order
for costs made against a lawyer who appeared as representative in
criminal proceedings did not determine the civil rights and obligations
of the lawyer concerned, the order being made in the context of the
administration of justice and the proper organisation of the work of
the courts (No. 10615/83, Dec. 3.7.94, D.R. 38, p. 213). It further
recalls that obligations, even of a pecuniary nature, have been held
by the Court not to be covered by the notion "civil rights and
obligations" where they are regarded as forming part of normal civic
duties in a democratic society (Eur. Court H.R., Schouten and Meldrum
judgment of 9 December 1994, Series A no 304, para. 50).
The Commission considers that similar reasoning is applicable to
the present case. The duty to give evidence in criminal proceedings
is a good example of one of the normal civic duties in a democratic
society: any person may be called on to give evidence as to matters
witnessed by him, and, at least to the extent that he is not required
to say anything which may incriminate himself, may be compelled to give
evidence in the interests of the fair and proper administration of
justice. The order requiring the giving of such evidence does not
involve the determination of any civil obligations of the witness,
however, and the position is not different where, as in the present
case, the evidence consists of material which has been filmed rather
than an individual's oral testimony as to what he witnessed.
The proceedings in which the BBC challenged the witness summons
made against it did not, therefore, determine the BBC's civil rights
or obligations within the meaning of Article 6 para. 1 (Art. 6-1) of
the Convention, with the result that that provision is not applicable
to those proceedings.
It follows that this part of the application is incompatible
ratione materiae with Article 6 (Art. 6) of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2).
2. The BBC also alleges a violation of Article 10 (Art. 10) of the
Convention, which provides, so far as relevant, as follows.
"1. Everyone has the right to freedom of expression. This
right shall include freedom ... to receive and impart information
and ideas without interference by public authority ...
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 ... for maintaining the
authority and impartiality of the judiciary."
The Commission recalls that in the case of Goodwin v. the United
Kingdom (No. 17488/90, Comm. Rep. 1.3.94, pending before the European
Court of Human Rights) it found that a disclosure order on a journalist
to reveal his sources constituted an interference with the right freely
to receive and impart information without interference by public
authority. The present case is different from the case of Goodwin,
since in that case the applicant had received information on a
confidential and unattributable basis, whereas the information which
the BBC obtained comprised recordings of events which took place in
public and to which no particular secrecy or duty of confidentiality
could possibly attach. The Commission will, however, assume an
interference with the BBC's Article 10 (Art. 10) rights for the
purposes of the present application.
An interference with the freedoms guaranteed by Article 10
para. 1 (Art. 10-1) of the Convention is permissible only if it is
"prescribed by law" and if it is "necessary in a democratic society"
on one or more of the grounds set out in Article 10 para. 2
(Art. 10-2).
The issuing of witness summonses in England and Wales is
regulated by Section 2 of the Criminal Procedure (Attendance of
Witnesses) Act 1965, which provides for the making of witness summonses
for a person to attend court and give evidence or produce documents or
things. The same provision enables a person to whom a witness summons
is addressed to challenge it on the ground that he "cannot give any
material evidence or, as the case may be, produce any document or thing
likely to be material evidence". The Commission therefore considers
that the witness summons in the present case - and the procedure
adopted by the Crown Court - was "prescribed by law" within the meaning
of Article 10 para. 2 (Art. 10-2) of the Convention.
As to whether the interference was "necessary in a democratic
society", the Commission has found, at para. 1 above, that the duty to
give evidence is a normal civic duty in a democratic society. In the
ordinary course of events, that duty will suffice to justify an
interference created by an obligation to testify on the ground that it
is necessary for the maintenance of the authority and impartiality of
the judiciary. The BBC considers that the present case is not an
ordinary case, because there was no reason to think that the material
which the defendants in the criminal trial wished to see could assist
the defence, and because it was not necessary to impose an obligation
on the BBC to disclose without it being given a proper opportunity to
know the issues in the criminal trial. The BBC also claims that the
obligation to disclose untransmitted material increases the risk for
film crews, as they will be associated with the law enforcement
agencies by by-standers if such material is subsequently liable to be
used in court.
The Commission recalls that, in a criminal trial, it is for the
judge to consider the evidence before the court, and to assess its
relevance and admissibility. The judge can only perform this function
if he has powers to require the production of evidence before the court
in the first place, and it was for this purpose that the witness
summons was made in the present case. The domestic law in the present
case enables the recipient of a witness summons to claim that he cannot
give any material help to the court, but ultimately it is for the
court, and not for the potential witness, to take the final decision
on the relevance of evidence. It is true that the discussions in the
present case were largely between the defence in the criminal case and
the BBC, rather than between the trial judge and the BBC, but the
principle is the same: the full picture should be before the criminal
court.
The Commission is not satisfied that the risks to film crews are
greater if untransmitted material is liable to be produced in court.
The Commission considers that any risk to film crews flows from their
presence at incidents such as the Broadwater Farm riots and from the
fact that they are filming such incidents, rather than from any
possibility that untransmitted material may subsequently be made
available to the courts.
Finally, the Commission does not accept the BBC's argument that
the interference was not "necessary" because the BBC did not fully know
the issues in the criminal trial. In particular, the Commission would
note that it will often be the case that a person giving evidence will
not fully appreciate the impact his evidence will have - that is a
matter for the court, rather than the individual witness.
Accordingly, the Commission finds that any interference with the
BBC's Article 10 (Art. 10) rights was "prescribed by law" and was
"necessary in a democratic society" for "maintaining the authority and
impartiality of the judiciary".
It follows that this part of 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.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy