CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 juillet 1988

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }      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)