CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 23 octobre 1997

.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. 34324/96                       by BRITISH BROADCASTING CORPORATION SCOTLAND,                       Neil McDONALD, Murdoch RODGERS and Susan DONALD                       against the United Kingdom          The European Commission of Human Rights (First Chamber) sitting in private on 23 October 1997, the following members being present:              Mrs    J. LIDDY, President            MM     M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs    M. HION            Mr     R. NICOLINI              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 8 October 1996 by BRITISH BROADCASTING CORPORATION SCOTLAND, Neil McDONALD, Murdoch RODGERS and Susan DONALD against the United Kingdom and registered on 19 December 1996 under file No. 34324/96;        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 first applicant is the British Broadcasting Corporation in Scotland (BBC Scotland). The second, third and fourth applicants, who are all resident in Scotland, are respectively the editor, producer and presenter of a television programme series entitled "Frontline", produced by BBC Scotland. The applicants are represented before the Commission by Mr. Alistair Bonnington, a solicitor employed by BBC Scotland, with offices in Glasgow. The facts of the application, as submitted by the applicants' representative, may be summarised as follows.   A.    The particular circumstances of the case        In October 1995 the applicants produced and broadcast a television programme entitled "Frontline Scotland", which included a feature entitled "Beaten by the System". The feature concerned allegations that prisoners, who had been involved in prison riots in July 1993 and January 1994 in two Scottish prisons, had been assaulted by prison officers when they had been removed to Barlinnie prison, Glasgow. The applicants intended to broadcast a further programme in the "Frontline Scotland" series on 30 May 1996. That programme was to include an update on the feature previously broadcast, again under the title "Beaten by the System" ("the broadcast").        On 9 May 1996 the Lord Advocate in Scotland served an indictment on three prison officers ("the prison officers") at Barlinnie prison alleging that they, whilst acting along with others, assaulted six named prisoners in the segregation unit at Barlinnie prison on 5 January 1994. The trial of the prison officers was to be heard before a jury at Glasgow High Court on 17 June 1996.        The prison officers presented a petition to the High Court of Justiciary in Edinburgh on 30 May 1996. The petition asked the High Court of Justiciary to use its powers of "nobile officium" (inherent equitable jurisdiction):        "to prohibit the [first applicant] from broadcasting or causing      to be broadcast in Scotland, until the completion of the trial      of [the prison officers], the feature in "Frontline Scotland      Update" entitled "Beaten by the System".        The intervention of the High Court was sought on the grounds that the broadcast would create a substantial risk that the course of justice in the proceedings against the prison officers would be seriously impeded or prejudiced.        The prison officers specifically stated in their petition that the broadcast:        "would tend to create in the minds of persons who may be called      as potential jurors to try [the prison officers] the impression      that as a matter of course, when prisoners are moved to Barlinnie      prison after a riot, they are assaulted by prison officers in      Barlinnie prison; and that [Dr.S.D] who is a Crown witness in the      case against [the prison officers], is a person whose      credibility, reliability and expertise is enhanced by the      contents of the proposed broadcast."        The broadcast contained no reference to any of the charged prison officers or to any of the prisoners whom they were alleged to have assaulted, and no reference was made to the proceedings that were pending against the prison officers. During the programme Dr. S.D., then a prison doctor, was interviewed and expressed his opinion that the injuries sustained by a certain prisoner were consistent with that prisoner's account of being kicked and beaten (the prisoner was not a complainant in the trial of the prison officers). The programme informed the viewer that Dr. S.D. had been dismissed from his employment subsequent to his appearance on the programme, despite having the backing of the British Medical Association and the European Committee for the Prevention of Torture.        The judgment of the High Court was delivered on 30 May 1996. It stated, inter alia:        "In our view, the Court does have power under the nobile officium      to make such an order even if it is not formally [in] a contempt      of court under the terms of the Contempt of Court Act 1981. If      this Court, as the High Court of Justiciary, which has under its      protection persons who have been charged by Her Majesty's      Advocate, considers that there is a risk of prejudice to the      trial of such a person then, in our view, this Court has power      to prevent such prejudice from occurring by such means as are      appropriate...        On the whole matter we are satisfied that there is a more than      minimal risk of prejudice to [the prison officers] at their trial      if this programme is broadcast. There is a distinct risk that one      at least out of the fifteen jurors may get the impression from      this programme that [Dr.S.D.] is a witness of considerable credit      whose views should be taken to be of great importance although      that doctor's view may well be challenged during the course of      the trial. ... The only reason why this programme is sought to      be broadcast tonight is not because it is a matter of immediate      public concern, it is simply because this is the last programme      in the series of "Frontline Scotland" and it would be      inconvenient to postpone the matter to the autumn. There is      therefore no question of urgency arising in the broadcasting of      this programme.        In the whole circumstances we are entirely satisfied that it      would be appropriate in this case to make ... an order      prohibiting [the broadcast]... in Scotland, until the completion      of the trial of [the prison officers]..."        The High Court accordingly granted an order prohibiting the broadcasting in Scotland, until the completion of the trial of the prison officers, of the feature "Beaten by the System" in "Frontline Scotland Update".   B.    Relevant domestic law        The concept of "nobile officium" in Scots law is an extraordinary equitable power vested in, inter alia, the High Court of Justiciary. The applicants submit the following judicial description of the jurisdiction of "nobile officium":        "wherever the interposition of some authority is necessary to the      administration of justice, and there exists no other judicature      by whom it can competently be exercised, or which has been in use      to exercise it, the Court of Justiciary is empowered and bound      to exercise its powers [of "nobile officium"], on the application      of the proper party, for the furtherance of justice".        The Contempt of Court Act 1981 ("the 1981 Act") creates a defence to a charge of contempt of court. Where the act applies, by virtue of Section 2 (2), a publication will only be in contempt of court if it creates a:        "substantial risk that the course of justice in the proceedings      in question will be seriously impeded or prejudiced".        By Section 5 of the 1981 Act:        "A publication made as or part of a discussion in good faith of      public affairs or other matters of general public interest is not      to be treated as a contempt of court under the strict liability      rule if the risk of impediment or prejudice to particular legal      proceedings is merely incidental to the discussion."   COMPLAINTS        The applicants contend that the order of the High Court of Justiciary in Scotland prohibiting the broadcast, constituted an interference with freedom of expression and a violation of Article 10 of the Convention. They complain that the order was not "prescribed by law" in accordance with Article 10 para. 2 of the Convention, as there was no finding that the broadcast was a contempt of court under the 1981 Act, rather the prohibition of the broadcast was effected by the Court using their inherent equitable jurisdiction, "nobile officium". The applicants further contend that the prohibition of the broadcast can not be considered "necessary in a democratic society", and that any risk of prejudice to the prison officers' right to a fair trial, due to the broadcast, was not sufficiently serious to counterbalance the public interest in freedom of expression in a democratic society.   THE LAW        The applicants complain that the order of the High Court of Justiciary prohibiting the broadcast, constituted a violation of Article 10 (Art. 10) of the Convention.        Article 10 (Art. 10) of the Convention provides as follows.        "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 would first note that in previous cases it has left open the question of whether the British Broadcasting Corporation has the necessary status to bring an application to the Commission (see, for example, No. 25798/94, Dec. 18.1.96). The question need not be determined in relation to BBC Scotland in the present case, either, as the application is in any event inadmissible for the following reasons.        The Commission considers that the order of the High Court of Justiciary prohibiting the broadcast constituted an interference with the applicants' freedom of expression under Article 10 para. 1 (Art. 10-1) of the Convention.        The Commission recalls that such an interference will constitute a violation of Article 10 (Art. 10) if it does not fall within one of the exceptions provided for in paragraph 2 of Article 10 (Art. 10-2). The Commission therefore has to examine in turn whether the interference in the present case was: prescribed by law, in pursuance of a legitimate aim, and was necessary in a democratic society (see Eur. Court HR, Sunday Times v. the United Kingdom judgment of 26 April 1979, Series A no. 30, p. 29, para. 45).        The Commission considers, and the applicants accept, that the interference was in pursuance of a legitimate aim, that is the protection of the right of the prison officers to a fair trial. It was therefore "for the protection of the reputation and rights of others ... or for maintaining the authority and impartiality of the judiciary".        The applicants however contend that the interference was neither "prescribed by law" nor "necessary in a democratic society".        The Commission will first consider whether the order was "prescribed by law". The Commission recalls that the word "law" in the expression "prescribed by law" covers not only statute but also unwritten law. The Commission thus considers that the fact that the High Court of Justiciary did not prohibit the broadcast as a contempt of court under the 1981 Act, but rather used their powers under their inherent jurisdiction of "nobile officium" is not, of itself, inconsistent with the order prohibiting the broadcast being "prescribed by law". However in order to be "prescribed by law", within the meaning of Article 10 para. 2 (Art. 10-2), the law must be adequately accessible and formulated with sufficient precision to enable the citizen to regulate his conduct (see the above-mentioned Sunday Times v. the United Kingdom judgment, pp. 30-31, paras. 47 & 49).         With regard to the questions of accessibility and foreseeability the Commission notes that the power of "nobile officium" has been described by the High Court of Justiciary, and is quoted by the applicants, in the following terms:         "wherever the interposition of some authority is necessary to      the administration of justice, and there exists no other      judicature by whom it can competently be exercised, or which has      been in use to exercise it, the Court of Justiciary is empowered      and bound to exercise its powers, on the application of the      proper party, for the furtherance of justice."        The general ground on which the prison officers sought the intervention of the High Court of Justiciary was that the proposed broadcast would:        "create a substantial risk that the course of justice in the      proceedings against the petitioners would be seriously impeded      or prejudiced."        The Commission considers that in the circumstances, the power of "nobile officium", was formulated with sufficient precision, and the risk that this power would be used to forbid the broadcast was sufficiently foreseeable.        The interference with the applicants' freedom of expression was thus "prescribed by law" within the meaning of Article 10 para. 2 (Art. 10-2).        With regard to whether the interference was "necessary in a democratic society", the Commission recalls that it is necessary to consider whether the "interference" complained of corresponded to a "pressing social need", whether the interference was "proportionate to the legitimate aim pursued" and whether the reasons given by the national authorities to justify it were "relevant and sufficient under Article 10 para. 2 (Art. 10-2) (see Eur. Court HR, Handyside v. the United Kingdom judgment of 7 December 1976, Series A no. 24, pp. 22-24, paras. 48-50).        The Commission notes that the High Court of Justiciary carried out a balancing act. They considered that the broadcast of the programme represented a more than minimal risk of prejudice to the prison officers at their trial, due in particular to the fact that the programme featured, and arguably gave enhanced credibility in the minds of jurors, to Dr. S.D., a key witness against the prison officers. In addition, the High Court considered that the subject matter of the broadcast was not a matter of immediate public concern and there was no urgency in the broadcast, which could be postponed until after the trial of the prison officers. The Commission notes that the order did not prohibit the broadcast from ever being shown, it merely postponed its showing until after the trial of the prison officers.        The Commission considers that in the circumstances the interference corresponded to the "pressing social need" of ensuring a fair trial for the prison officers, and that it was "proportionate to the legitimate aim pursued" in that the broadcast was merely postponed. Moreover, High Court gave "sufficient and relevant reasons" for its judgment.        In these circumstances the Commission considers that the interference with the applicants' freedom of expression was necessary in a democratic society.        It follows that 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.        M.F. BUQUICCHIO                               J. LIDDY         Secretary                                  President    to the First Chamber                       of the First Chamber