AS TO THE ADMISSIBILITY OF
Application No. 14132/88
by C. Ltd
against the United Kingdom
The European Commission of Human Rights sitting in private on
13 April 1989, the following members being present:
MM. S. TRECHSEL, Acting President
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 15 June 1988 by C. Ltd
against the United Kingdom and registered on 23 August 1988 under file No.
14132/88;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a television company with its registered
office in London. It is represented by Jonathan Caplan, a barrister
practising in London. The facts as submitted by the applicant may be
summarised as follows.
In 1987, the Secretary of State for Home Affairs referred the
cases of six men, who had been convicted of causing explosions as
members of the I.R.A. in two Birmingham public houses in November
1984, to the Court of Appeal (Criminal Division) in London pursuant to
his powers under the Criminal Appeal Act 1968. These reference
proceedings commenced on 2 November 1987 before the Lord Chief
Justice, Lord Justice O'Connor, and Lord Justice Stephen Brown and
they concluded on 9 December 1987 when the Court announced that it
would reserve its judgment which would be given on a later date.
During the proceedings, the Court heard fresh evidence from numerous
witnesses and also submissions from counsel for both the Appellants
and the Crown.
Prior to the commencement of the reference proceedings, the
applicant entered into correspondence with the Assistant Registrar to
the Court, with the Director of Public Prosecutions and with the Lord
Chancellor's Department informing them that the applicant had
commissioned Dennis Woolf Productions Limited to produce a programme
which would be based exclusively on the official shorthand transcripts
and which would re-enact parts of the proceedings using actors in an
authentic courtroom setting.
The applicant scheduled the completed programme for
broadcasting on Channel 4 on Thursday, 3 December 1987 between 10.45
p.m. and 12.15 a.m. on 4 December. By that time, the evidence had
been concluded but counsels' closing submissions were still in
progress.
On the morning of 3 December, the applicant was informed by
the Attorney-General's department that counsel on behalf of the
Attorney-General proposed to apply to the Court of Appeal which was
hearing the reference proceedings at mid-day for an injunction
restraining them from broadcasting the programme. The application was
duly made ex parte although the applicant was represented by counsel
and allowed to address the Court. Counsel for the Attorney-General
said that the application was being made because "the intimate
portrayal of events inside the Court room" prior to judgment was
"bound to create the risk of undermining the public's confidence that
the Court gets it right". It was conceded that the reference
proceedings before the Court of Appeal could not in any way be
prejudiced since the tribunal was composed of three professional
judges.
The Court of Appeal granted the injunction on 3 December
thereby restraining the applicant "from broadcasting any enactment of
any part of the Court proceedings in the current appeal Regina v.
Callaghan and others until further order". In giving the judgment of
the Court, the Lord Chief Justice inter alia said that the programme
would necessarily be "highly selective", was "intended to entertain",
would "thrust upon the public ... an intimate impression of the
reliability or unreliability" of the witnesses, and was "likely to
undermine public confidence" in the Court. The Court had not viewed
the programme, no affidavit had been filed by the applicant and the
only evidence before the Court was two short mentions about the
programme in the Observer and in the Times Newspapers which had been
written by journalists who themselves had not seen the programme.
On 16 December 1987, the applicant applied to the same Court
of Appeal for the injunction to be discharged. The applicant placed
before the Court the Affidavits of Elizabeth Forgan (the applicant's
Deputy Director of Programmes) and of Dennis Woolf (the producer)
which set out in detail the purpose of the programme, its reliance on
the official shorthand note of the proceedings, and the extent of the
precautions that had been taken by the applicant to ensure that the
programme constituted a fair and accurate report of the proceedings.
The Court again declined to view the programme and, after further
legal argument, dismissed the application to discharge the injunction
and refused leave to appeal to the House of Lords. In the Court's
judgment, the Lord Chief Justice held, inter alia:
"The next point taken by Mr. Mathew on behalf of Channel Four
Television is that the injunction which we granted was the
application of a wrongly interpreted dictum of Lord Diplock's
in Attorney General v. Times Newspapers Ltd. (1974) AC 273.
The passage which Mr. Laws invited us to examine at the
original hearing is at page 309. It reads as follows:
'The due administration of justice requires first
that all citizens should have unhindered access to
the constitutionally established courts of criminal
or civil jurisdiction for the determination of
disputes as to their legal rights and liabilities;
secondly, that they should be able to rely upon
obtaining in the courts the arbitrament of a tribunal
which is free from bias against any party and whose
decision will be based upon those facts only that
have been proved in evidence adduced before it in
accordance with the procedure adopted in courts of
law; and thirdly that, once the dispute has been
submitted to a court of law, they should be able to
rely upon there being no usurpation by any other
person of the function of that court to decide it
according to law. Conduct which is calculated to
prejudice any of these three requirements or to
undermine the public confidence that they will be
observed is contempt of court.'
Mr. Mathew submits that the circumstances and the facts of
that case were such as to render that dictum not applicable
to the circumstances with which we are dealing at the moment.
We disagree. That dictum is one of general application, and
if conduct falls within the words used by Lord Diplock
properly construed, then that is the basis on which the Court
can exercise jurisdiction to grant an injunction.
...
That brings us to the next ground upon which Mr. Mathew bases
his submission, first of all that this programme is not
potentially in contempt, and if it was in contempt potentially
at the time when the injunction was granted, namely whilst the
hearing at the Old Bailey was still in progress, it is no
longer so because the hearing is now over, and all that
remains is the judgment of the Court which has yet to be
delivered.
That raises of course the always difficult question of
deciding the matter of degree, as Lord Justice Shaw described
it. Mr. Mathew has, quite understandably, sought to draw
analogies between the programme which is proposed and the
ordinary reports in the press of cases which are being heard
or have just been heard in the courts.
But it seems to us that the television presentation which is
proposed - I interpolate, we have read the two affidavits
filed by the Television Company demonstrating the care with
which they say they have carried out their research and the
care with which they have organised the prospective programme
- is not truly analogous to the press reports. Press comment
does not pretend to be any more than comment. But what is
proposed here is the portrayal with actors not only of members
of the Court (which does not matter), not only of counsel
(which probably does not matter), but also of the witnesses.
The portrayal by actors of a witness, albeit using words or
some of the words which the witness has used, is pretending to
be the real thing and is subtly inviting the viewer, as Mr.
Laws puts it, to sit in the judgment seat, and subtly inviting
the viewer to make what he thinks is his own comment or
judgment, but in truth that comment and judgment will be
conditioned, and predictably conditioned, by the way in which
the actor, as he has been directed, has played the part of the
witness. The actor has it in his power to make a truthful
witness appear to be a liar and vice versa.
Such a representation would not, in normal circumstances,
directly affect the judgment of the Court. It would, or it
certainly might, affect the public's view of the judgment of
the Court. As to that it might be said that a broadcast of
this nature after judgment is delivered would have the same
effect, but we doubt if that is true. Even if it is true,
there is a further reason for at least postponing such a
programme until after all the proceedings are over. That is
this. Whatever may be the nature of the present programme,
which we have not seen despite invitations to us to do so, the
defendant in any case, or the appellants in the present case,
in circumstances such as these, are entitled to be assured
that so far as possible the Court has not been influenced by
external matters.
The broadcast of this sort of programme before the case is
finally over may leave the defendant, or the appellants in
this case, without such assurance. He will know that the
Court in all probability has seen the programme before
judgment has been delivered. He may harbour doubts, however
unjustified those doubts may be, about the effect which the
programme may have had upon the judgment of the Court."
On 30 December, the applicant lodged with the House of Lords a
petition for leave to appeal and unsuccessfully sought an expedited
hearing of the application.
On 28 January 1988, the Court of Appeal delivered its judgment
in the reference proceedings upholding the convictions and refusing to
order a retrial.
On 29 January, the Court of Appeal discharged the injunction
against the applicant.
On 21 March 1988, the House of Lords heard the applicant's
petition for leave to appeal and dismissed it on the ground that,
since the injunction had been discharged, it was now "academic".
COMPLAINTS
The applicant claims to be a victim of a breach of Articles 10
and 13 of the Convention. It submits as follows.
Article 10
The interference by injunction in this case was not necessary
and outside the class of exceptions set out in Article 10 para. 2 of
the Convention for the following principal reasons:
(i) The script for the programme was drawn almost entirely from
the official shorthand transcript of the reference proceedings,
and the only additional material was a short introduction by
way of non-contentious explanation. It, therefore, consisted
only of words that had been spoken in open court. There was
no comment or criticism and the programme in no way trespassed
upon the authority of the court or of the judiciary.
(ii) Every word in the script could have been lawfully published at
any time in the press without complaint.
(iii) It was conceded by the Attorney-General on 3 and 16 December
1987 that such a programme could not threaten the impartiality
of the Court of Appeal which was composed of professional
judges. The fairness of the proceedings and of their outcome,
therefore, was not at risk.
(iv) The Attorney-General stated on 3 and 16 December 1987 that he
would have no objection to the programme being broadcast
immediately after judgment had been given but nevertheless
contended that it would constitute a contempt if it was
broadcast immediately before. In view of the fact that there
was no possibility of prejudice to the outcome or of
influencing the tribunal, such a distinction is illogical.
(v) The programme was in no sense even critical, and, as the
Attorney-General conceded on 29 January 1988, it was never
suggested that the applicant had acted from improper motives
or with the specific intent of interfering with the
administration of justice.
(vi) In all the circumstances, there was no pressing social need
requiring interference by injunction.
(vii) In all the circumstances, the interference was not
proportionate to the aim pursued by the applicant.
Furthermore, the applicant submits that the interference in
this case with the applicant's rights under Article 10 para. 1 was
not "prescribed by law" as required by Article 10 para. 2 for the
following principal reasons:
(i) The criterion of foreseeability emphasised by the European
Court in the Sunday Times case (Eur. Court H.R., Sunday Times
judgment of 26 April 1979, Series A no. 30) was not met in
this case.
(ii) Reporting of court proceedings by the media is now regulated
by the Contempt of Court Act 1981 which only permits a court
to postpone a report of, or of part of, any legal proceedings
"where it appears to be necessary for avoiding a substantial
risk of prejudice to the administration of justice in those
proceedings". The Attorney-General, however, conceded in this
case on 3 and 16 December 1987 that there could be no risk
of prejudice to the outcome of the proceedings before
professional judges and, therefore, he could not seek to rely
upon Section 4. The only other provision in the 1981 Act
which could conceivably have applied was Section 6(c) which
preserved the power of the court to commit for contempt where
the conduct complained of was specifically intended to impede
or prejudice the administration of justice but the
Attorney-General accepted on 29 January 1988 that the applicant
never had this intent. Accordingly, since neither Section 4
nor Section 6(c) applied, the interference was not prescribed
by law.
(iii) There is no authority in English law, either statutory or
common law, for the proposition that undermining public
confidence in the court constitutes a potential contempt in
circumstances where there is no malice or intent to impair the
administration of justice.
The applicant submits that it continues to be a victim since:
i) It is the applicant's wish, as was stated to the Appellate
Committee of the House of Lords on 21 March 1988, to commission
similar programmes in the future in accordance with its duties
and responsibilities to impart information to the public
and/or to render the administration of justice visible.
ii) The judgments of the Court of Appeal in this matter serve as a
binding precedent that will interfere with the applicant's
rights under Article 10.
iii) The applicant is extremely unlikely ever to be able to
challenge that precedent in the House of Lords since by their
very nature such injunctions are temporary only and will be
discharged once the verdict or judgment has been delivered.
Such injunctions will, therefore, only last for a matter of
weeks during which time it will not be possible to have the
applicant's appeal heard and determined in the House of Lords.
Once the injunction is discharged, the House of Lords will
then decline to hear the matter on the ground that it is
"academic" only.
Article 13
The applicant contends that there was a breach of Article 13
of the Convention for two separate reasons:
i) because the applicant was not able to appeal on the merits
and/or the law at any time to any court other than the
Court of Appeal which originally granted the injunction, save
to the extent that it could seek leave to appeal to the House
of Lords on a novel point of law of general public importance
assuming that such a point existed in this case. It is
submitted that that is not an effective remedy; and
ii) because the applicant had no prospect of appealing to the
House of Lords in this case even on a novel point of law.
The House of Lords dismissed the applicant's petition for
leave to appeal solely on the ground that it had become "academic" by
21 March 1988, but the discharge of the injunction still left
unresolved the issues whether the prior restraint of the applicant and
the interference with its rights from 3 December 1987 until 29 January
1988 was proper and whether the judgments of the Court of Appeal were
correct as a precedent for the future given that the applicant had
stated its express wish and intention to express itself in a similar
manner through similar programmes in the future.
At the very least, the applicant submits that the House of
Lords should, or could properly, have determined whether its rights
under the Convention had been violated up until 29 January 1988.
THE LAW
1. The applicant complains that the injunction issued preventing
the showing of its television programme violated Article 10 (Art. 10) of the
Convention, which provides:
"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 finds that the order of the Court of Appeal
prohibiting the broadcasting of the applicant's scheduled programme
concerning proceedings before the Court constituted an interference
with the applicant's freedom of expression within the meaning of
Article 10 para. 1 (Art. 10-1) of the Convention. The Commission must consider
whether this interference was "prescribed by law" and whether it was
necessary in a democratic society for one or more of the purposes set
out in Article 10 para. 2 (Art. 10-2).
As regards the lawfulness of the restriction, the Commission
recalls that the injunction was issued by the Court of Appeal as part
of its inherent jurisdiction with regard to contempt of court. While
the applicant argues that its television programme did not in fact
constitute a contempt of court, the Commission finds that the possible
differences of interpretation and application of the principles
governing contempt of court do not necessarily deprive it of the
quality of law. In the Sunday Times case the European Court of Human
Rights stated:
"In the Court's opinion, the following are two of the
requirements that flow from the expression 'prescribed by
law'. Firstly, the law must be adequately accessible: the
citizen must be able to have an indication that is adequate in
the circumstances of the legal rules applicable to a given
case. Secondly, a norm cannot be regarded as a 'law, unless it
is formulated with sufficient precision to enable the citizen
to regulate his conduct: he must be able - if need be with
appropriate advice - to foresee, to a degree that is
reasonable in the circumstances, the consequences which a
given action may entail. Those consequences need not be
foreseeable with absolute certainty: experience shows this to
be unattainable. Again, whilst certainty is highly desirable,
it may bring in its train excessive rigidity and the law must
be able to keep pace with changing circumstances.
Accordingly, many laws are inevitably couched in terms which,
to a greater or lesser extent, are vague and whose
interpretation and application are questions of practice."
(Eur. Court H.R., Sunday Times judgment of 26 April 1979,
Series A no. 30, p. 31, para. 49).
The Commission considers that there exists a significant body
of case-law concerning the law of contempt of court and that both the
applicability and the substantive content of this law have been
developed with sufficient precision so as to make it reasonably
accessible and foreseeable. The Commission accordingly finds the
restriction was "prescribed by law" within the meaning of Article 10
para. 2 (Art. 10-2).
As regards the purpose of the restriction, the Commission
recalls that the Court of Appeal gave as its reasons for its decision
the need to provide assurance to the appellants that the Court had not
been influenced by external matters and the risk that the programme
would undermine public confidence in the Court's judgment. The
Commission considers that the restriction therefore pursued the
legitimate aims under Article 10 para. 2 (Art. 10-2) of the Convention of
protecting the rights of others and of maintaining the authority and
impartiality of the judiciary.
It remains to be considered whether the restriction was
necessary in a democratic society for these aims. The Commission must
have regard to the essential function of freedom of the press in a
democratic society and establish whether a "pressing social need"
justified the restriction, taking into account that the States have a
certain margin of appreciation (Eur. Court H.R., Lingens judgment of
8 July 1986, Series A no. 103, pp. 25-26, paras. 39-41).
The applicant submits that there was no pressing social need
for the restriction since, inter alia, there was no risk of the
programme affecting the judgment of a court of professional judges,
the script was drawn from the official shorthand transcript and could
have been lawfully published in the press and the programme was in no
sense critical or of any threat to the proper administration of
justice.
The Commission considers however that the dramatic
reconstruction of court proceedings on television differs
significantly from reporting of those proceedings in the press. The
Court of Appeal in its judgment found:
"The portrayal by actors of a witness, albeit using words or
some of the words which the witness has used, is pretending to
be the real thing and is subtly inviting the viewer, as Mr.
Laws puts it, to sit in the judgment seat, and subtly inviting
the viewer to make what he thinks is his own comment or
judgment, but in truth that comment and judgment will be
conditioned, and predictably conditioned, by the way in which
the actor, as he has been directed, has played the part of the
witness." (the Lord Chief Justice)
Furthermore, the Commission notes that the Court of Appeal
considered that such a television programme would not normally affect
the judgment of the Court, but that the appellants had the right to be
assured that the Court was unaffected by external matters and that
they would have understandable doubts of this if the programme was in
fact shown before the judgment was given.
In light of these considerations the Commission finds in the
present case that the restriction was justified by a pressing social
need. It also finds the restriction, which lasted eight weeks until
the publication of the court's judgment, was not disproportionate to
the aims which it sought to achieve.
It follows that this complaint is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant also complains of the lack of an effective
remedy in respect of its complaints, contrary to Article 13 (Art. 13) which
provides:
"Everyone whose rights and freedoms as set forth in
this Convention are violated shall have an effective
remedy before a national authority notwithstanding that
the violation has been committed by persons acting in an
official capacity."
Article 13 (Art. 13) does not require a remedy under domestic law in
respect of any alleged violation of the Convention. It only applies
if the individual can be said to have an "arguable claim" of a
violation of the Convention (Eur. Court H.R., Boyle and Rice judgment
of 27 April 1988, Series A no. 131, para. 52).
The Commission has found above that the interference with the
applicant's rights under Article 10 (Art. 10) of the Convention was justified
under paragraph 2 of that provision as being necessary in a democratic
society for the protection of the rights of others and for maintaining
the impartiality and authority of the judiciary.
The Commission also finds that the facts of the present case
fail to disclose an "arguable claim" of a violation of Article 10 (Art. 10) of
the Convention. Consequently, the applicant cannot derive from
Article 13 (Art. 13) of the Convention a right to a remedy for the alleged
violation of Article 10 (Art. 10).
It follows that this part of the application is also
manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission Acting President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)