CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 avril 1989

.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. 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)