AS TO THE ADMISSIBILITY OF
Application No. 11552/85
by TIMOTHY CROOK and
THE NATIONAL UNION OF JOURNALISTS
against the United Kingdom
The European Commission of Human Rights sitting in private on
15 July 1988, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 (Art. 25) of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 3 May 1985
by TIMOTHY CROOK and THE NATIONAL UNION OF JOURNALISTS against the
United Kingdom and registered on 23 May 1985 under file No. 11552/85;
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 first applicant, Mr. Timothy Crook, is a citizen of the
United Kingdom, born in 1959, and at present residing in London. He
is a journalist by profession and the proprietor of a newsagency which
provides reports of court trials for the broadcast media.
The second applicant, the National Union of Journalists, is a
trade union representing the interests of British journalists, many of
whom are professionally engaged in court reporting.
The applicants were represented by Ms. Marie Staunton and
Mr. Paul Hunt, Legal Officers, National Council for Civil Liberties.
The facts submitted by the applicants may be summarised as
follows.
In the course of a trial which took place in the Central
Criminal Court, London, in January 1984 in which three defendants were
charged inter alia with abducting a woman in order that she should have
unlawful sexual intercourse with another person, an application was
made to the court for an Order under Section 11 of the Contempt of
Court Act 1981 prohibiting the publication of the victim's name.
The trial judge, after hearing representations from counsel
for the defence, subsequently made an Order under Section 11
"prohibiting publication of her name or any material leading to her
identity or identification". He added, however, that the name could be
referred to in court since withholding it might prejudice the defence
of one or more of the defendants.
In the course of the trial it transpired that the witness
belonged to a well-known family and it was suggested to the court by
counsel for the defence that the real reason that counsel made an
application for an Order under Section 11 was to shield her and her
family from embarrassment arising from certain details of her past
which were revealed in the course of her evidence. After receiving a
request from journalists to reconsider the Order the trial judge
agreed to hear representations from the media in view of the
"constitutional importance of the Section 11 Order".
After hearing counsel on behalf of the media and counsel for
the witness, the trial judge in a decision dated 27 January 1984 upheld
his Order under Section 11. He found that the court did have a power
at common law to make such an Order notwithstanding that the
indictment was not one of blackmail. He also found, on a question of
construction of Section 11, that it was open to him to make an Order
notwithstanding the fact that thereafter, in the course of the trial,
the name of the witness could be referred to in court.
Further he held that the Order was justified in the interests
of the administration of justice. In reaching this conclusion he took
into account that the witness, now 23, had started to take heroin
when she was 17. She had subsequently become an addict and had then
sought assistance for treatment and he referred to medical evidence
given before him to the effect that people seeking rehabilitation by
treatment must avoid undue stress.
In an application for judicial review of this Order the
Divisional Court found that it had no jurisdiction to entertain the
application for the Order since Section 29 of the Supreme Court Act
1981 had the effect of excluding any review of an Order made in the
course of proceedings at a Crown Court trial.
The judges of the Divisional Court indicated that they had
reached their conclusion reluctantly and expressed the view that the
Order was wholly illogical since the name of the witness was used
freely in the court in a public hearing and would thus be known to any
persons sitting in the public gallery. Moreover they expressed doubt
that the trial judge had power to make the Order under Section 11
where the name of the witness would be referred to in court during the
course of the proceedings.
The court also objected to the trial judge's hearing of
representations from the media and from counsel on behalf of a witness,
holding that no person who was not a party to the trial had standing
to oppose an Order made by the trial judge however much they might be
affected by it. The proper procedure to be followed in future cases
was for counsel for the prosecution or the defence to make
representations on behalf of the aggrieved party.
COMPLAINTS
The applicants complained that since the name of the witness
was regularly referred to in open court, the Order was an infringement
of their freedom to impart information to the public and thus a breach
of Article 10 (Art. 10) of the Convention.
Furthermore the decision of the Divisional Court that persons
in their position in the future have no right to oppose Orders made
under the Contempt of Court Act 1981 deprives them of their
entitlement to a fair hearing contrary to Article 6 (Art. 6) in relation to
decisions which affect their civil rights.
Finally, they submitted that the lack of an effective remedy
against the Section 11 Order constitutes a breach of Article 13 (Art. 13) of
the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 3 May 1985 and was
registered on 23 May 1985. It was first considered by the Commission
on 2 December 1985 when it was decided to communicate the application
to the respondent Government and to request their observations on the
admissibility and merits of the case.
In a letter dated 9 April 1986 the Government informed the
Commission that they had approached the applicant's legal advisers
(National Council for Civil Liberties) with a view to discussing
possible changes in the law concerning review of Orders made under
inter alia Section 11 of the Contempt of Court Act 1981. The
Commission was requested to adjourn the application pending the
outcome of these discussions. In a further letter of 14 July 1986 the
Government indicated that they intended to change the law in order to
permit judicial review but that the manner in which review would take
place was a matter for further discussion.
On 14 July 1986 the Commission again considered the
application and decided to adjourn it pending the outcome of the
discussions between the parties.
A meeting subsequently took place in London on 18 March 1988
between the parties and the Secretary to the Commission, accompanied
by a member of the Secretariat.
In a letter dated 7 July 1988, the Agent of the respondent
Government, Mr. M. C. Wood, made the following proposals:
"1. The Government have tabled an amendment to the
Criminal Justice Bill which, inter alia, provides that any
person aggrieved may, with leave, appeal to the Court of
Appeal against an order under section 4 or 11 of the Contempt
of Court Act 1981 made in relation to a trial on indictment.
It is now intended that ... the time limit for the appeal
should be fourteen days, with the usual possibility of
applying for leave to appeal out of time.
2. Provided that the above application is struck off the
Commission's list of cases, the Government are ready to pay
the costs that would have been payable on the party and party
basis to the applicants if they had succeeded before
the Divisional Court and, in addition, a proportion (75%) of
the legal costs relating to the application to the Commission
which have been actually incurred, necessarily incurred and
are reasonable as to quantum."
Mr. P. Hunt, Legal Officer, National Council for Civil
Liberties, indicated in a telex dated 11 July 1988 that the applicants
were prepared to withdraw the application on the terms set out in
Mr. Wood's letter of 7 July 1988.
REASONS FOR THE DECISION
The Commission notes that the applicants complained inter alia
under Articles 10 and 13 (Art. 10, Art. 13) of the Convention in respect of an
Order made under Section 11 of the Contempt of Court Act 1981 restraining them
from publishing the name of a witness in a criminal trial. It further notes
that the Government proposed an amendment to the Criminal Justice Bill,
providing for the possibility of an appeal to the Court of Appeal against
Orders made under Section 11 of the 1981 Act. The applicants have indicated
their willingness to withdraw the application in the light of this proposal.
Against this background, the Commission finds that the parties have reached a
settlement of the application and, having regard to Rule 44(1) of the Rules of
Procedure, that there are no reasons relating to the general interest to
continue an examination of the application.
For these reasons, the Commission
DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.
Secretary to the Commission President of the Commission
(H. C. KRUGER) (C. A. NØRGAARD)