Sexual touching - privacy argument
[2023]JRC097
Royal Court
(Samedi)
20 June 2023
|
Before :
|
R. J. MacRae, Esq., Deputy Bailiff
|
The Attorney General
-v-
Reece Williams
Ms C. L. G. Carvalho, Crown Advocate.
Advocate A. E. Binnie for the Defendant.
Mr A Sibcy for the
Jersey Evening Post and Bailiwick Express
JUDGMENT
THE DEPUTY BAILIFF:
1.
The
Defendant has been indicted for two offences of sexual touching of an older
child, the alleged offences having taken place on public transport in November
2022.
2.
The Defendant
was charged on 23 November 2022, and the case was sent to the Royal Court for
indictment on 27 January 2023. No
plea has been entered owing to the Defendant's mental health assessment. It has been suggested, although not
determined, that the Defendant does not have the capacity to participate
effectively in any trial. A
consultant psychiatrist has produced a report for the Court dated 30 March
2023, which describes the Defendant as a "vulnerable adult"
and says that Court hearings "should be held in private to avoid any
further publication on social media" and recommends an admission to a
specialised in-patient unit for further assessment of the Defendant's
mental health under Article 62 of the Mental Health (Jersey) Law 2016
("the 2016 Law").
3.
The
Defendant was remanded in custody from 23 November 2022 until 24 February 2023,
whereupon he was granted conditional bail, later revoked on 17 March 2023. On 31 March 2023, the Defendant was
remanded to an approved establishment under Article 62 of the 2016 Law, and
since 13 April 2023 he has resided at a specialist clinic in the United Kingdom
for assessment. His remand status
in that unit will be reviewed regularly in accordance with the 2016 Law.
4.
On 17
March 2023, an Interim Order was made by the Court, absent hearing argument, to
the effect that the case be heard in private. However, that was only a holding order,
as it is clear from the Act of Court that counsel were to attend upon the
Bailiff's Judicial Secretary to fix a date for the hearing of the
application for the matter to be continued to be heard in private. This hearing took place on 2 and 3 May
2023. Prior to the hearing, on 1
May 2023, the Court directed the Crown to convene various representatives of
the media to attend the hearing, if they wished, in order to make submissions
as they wished. The Court received
helpful written submissions from Mr Andy Sibcy and Mr
James Filleul on behalf of the Jersey Evening Post
and the Bailiwick Express, and Mr Sibcy attended the
hearings on 2 and 3 May 2023, made oral submissions and also filed further
written submissions. Crown and
defence also filed written and made oral submissions. The Crown's position, in short,
was that all hearings in this matter should take place in public in accordance
with the usual rule for criminal proceedings. This stance was supported by the Jersey
Evening Post and the Bailiwick Express.
The defence submitted that all future hearings of this case, including
any ultimate trial, should be heard in private, even a trial by jury of the
allegations the Defendant faces on indictment.
5.
Bearing in
mind the presumption in favour of open justice, which has long been recognised
in criminal proceedings in Jersey, it is appropriate to consider the defence
arguments on the facts of this case and the relevant legal principles.
Open justice
6.
As to the
starting point, in Jersey Evening Post v Al Thani and Others [2002] JLR 542, Bailhache, Bailiff, giving the judgment of the Royal Court, said in a
civil case involving an application under the Trusts (Jersey) Law 1984:
"14 The principle of open justice has not
yet found statutory expression in Jersey but we have no doubt that it forms
part of our law. Indeed it has been given judicial expression in numerous
judgments of the court. Like most great principles, however, it is subject to
qualifications. In Scott (or Morgan) v. Scott, Viscount Haldane, L.C. stated
([1913] A.C. at 437-438):
"While the broad principle is
that the courts of this country must, as between parties, administer justice in
public, this principle is subject to apparent exceptions, such as those to
which I have referred. But the exceptions are themselves the outcome of a yet
more fundamental principle that the chief object of Courts of justice must be
to secure that justice is done.....As the paramount object must always be
to do justice, the general rule as to publicity, after all only the means to an
end, must accordingly yield. But the burden lies on those seeking to displace
its application in the particular case to make out that the ordinary rule must
as of necessity be superseded by this paramount consideration. The question is
by no means one which, consistently with the spirit of our jurisprudence, can
be dealt with by the judge as resting in his mere discretion as to what is
expedient. The latter must treat it as one of principle, and as turning, not on
convenience, but on necessity."
15 The speeches of their Lordships in Scott
were considered in a recent judgment of this court in G v A where Page, Commr. usefully summarized the general principles (2000 JLR
at 59-60):
"(a) The general principle,
beyond doubt, is that all proceedings should take place in public in open
court.
(b) The constitutional, legal and
practical importance of this principle is such that it should not be displaced
except for compelling reasons.
(c) Whether to order proceedings in
camera is something that must be determined in accordance with principle, and
not on the basis of what the judge happens to consider convenient or
reasonable. Potential embarrassment on the part of those who have to give
evidence is not a sufficient reason, of itself, to justify a hearing in camera.
(d) The question (of principle) that has
to be asked can be expressed in various ways but was put succinctly by the Lord
Chancellor, Viscount Haldane, in Scott (or Morgan) v. Scott ... as follows
([1913] A.C. at 439): 'I think that to justify an order for hearing in
camera it must be shown that the paramount object of securing that justice is
done would really be rendered doubtful of attainment if the order were not
made.'
There are several classes of case
in which it is well established that in camera hearings are often necessary.
But they are no more than illustrations of this wider principle.
(e) The test is a strict one and I
quote again from Viscount Haldane ([1913] A.C. at 438):
'But the burden lies on those
seeking to displace . . . [the general rule as to openness] in the particular
case to make out that the ordinary rule must as of necessity be superseded by
this paramount consideration. The question is by no means one which,
consistently with the spirit of our jurisprudence, can be dealt with by the
judge as resting in his mere discretion as to what is expedient. The latter
must treat it as one of principle, and as turning, not on convenience, but on
necessity.'"
16 The aim therefore is to do justice to
the parties before the court. That aim must not be stultified by a rigid
application of the principle that justice must be done in public. Yet the
principle of open justice should not be displaced as a matter of convenience or
expedience, or to avoid embarrassment to one or more of the parties, but only
if it is necessary to do so in the interests of justice."
7.
Although Al
Thani was a civil case, the principles enunciated referred to above plainly
apply to criminal proceedings too.
This is a criminal case and the observations made below only extend to
criminal cases. It is not necessary
for there to be a revisitation of the particular exceptions identified in case
law where civil proceedings may legitimately be determined in private with
redacted judgments being, if appropriate, published thereafter, such as
directions hearings in trust cases, public law children cases, certain private
family proceedings, particularly those involving children, and other exceptions
established by case law.
8.
Al
Thani was decided prior to the incorporation into
domestic law of Article 6 of the European Convention of Human Rights. This occurred with the coming into force
of the Human Rights (Jersey) Law 2000. The judgment in Al Thani noted
the forthcoming implementation of Article 6 at paragraph 28. Article 6/1 of the Convention provides:
"In the determination of his
civil rights and obligations or of any criminal charge against him, everyone is
entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law. Judgment shall be
pronounced publicly but the press and public may be excluded from all or part
of the trial in the interest of morals, public order or national security in a
democratic society, where the interests of juveniles or the protection of the
private life of the parties so require, or to the extent strictly necessary in
the opinion of the court in special circumstances where publicity would
prejudice the interests of justice."
9.
It is
noted that Article 6 provides for the right of an individual for their case to
be heard publicly and not in secret.
This is particularly important in criminal proceedings. However, in this case, the Defendant
wishes, if he can, to waive that right in favour of his case being determined
privately. Article 6 seems to
permit such a course in circumstances where the "the protection of the
private life of the parties so require". Indeed, in Al Thani, the Court
held at the end of paragraph 28 of the judgment that that phrase was "sufficient
justification, absent any compelling reason to the contrary, for resolving to
sit in private to hear this kind of application under art 47 of the Trust Law". However, as I have observed, these are
criminal proceedings.
This case
10. Having referred to the principle of open
justice, I turn to the facts of this case.
The concerns of the Defendant can be summarised in this way. There have been various postings and
comments on social media connected to this case which have been extremely
hostile to the Defendant. Warnings
given by the States of Jersey Police given to one or more persons responsible
for posting this material, are said to have been of little or no effect. Members of the public, hostile to the
Defendant, have attended hearings in this case. Immediately after the alleged assaults,
it is said that the Defendant was assaulted by another. When proceedings against that individual
were discontinued by the prosecution in April, there was widespread support for
that decision on social media.
The Defendant's mental health has been detrimentally affected by
this conduct - this has been independently confirmed by medical
evidence. Dr Briggs, a consultant
psychologist, says the Defendant has significant impairment in intellectual
functioning, scoring within the extremely low range across assessment, likely
meeting the criteria for intellectual disability and for autism. He is vulnerable. Similar evidence is given by other
medical professionals. Those
responsible for supporting the Defendant, including the Defendant's key
worker, social worker and speech and language therapist, all support the view
that it is in the Defendant's best interests in respect of his physical
and mental health, for hearings to take place in private.
11. The Crown argue that this is not the case where
it is 'necessary' for the proceedings to be held in private,
notwithstanding the concerns ventilated on behalf of the Defendant.
Hearings in private
12. The Court possesses a power to order that
hearings take place in private, both under its inherent jurisdiction and in the
exercise of the Court's case management powers. In respect of the latter, in D v AG [2022] JRC 228, the Court observed at
paragraphs 13 onwards:
"13. However, we are satisfied that the Magistrate's
Court does, in the exercise of its case management powers, have the power to
order that a sentencing hearing takes place in private. We make this finding for the following
reasons.
14. First, under the Law, the Magistrate's
Court has extremely wide case management powers. Pursuant to Article 2 of the Law, the
'overriding objective' is to ensure that criminal cases are dealt with
'justly'.
15. 'Justly'
is considered in Article 3 of the Law under the title 'Implementation of the
overriding objective'. Dealing with
cases justly includes, inter alia, 'recognising the right of a defendant,
particularly those granted under Article 6 of the European Convention on Human
Rights...'.
16. Further, under Article
3(2)(c), dealing with a case justly also includes dealing with it in ways that
take into account 'the severity of the consequences for the defendant and for
others that are affected...'.
17. The obligation of the Court under
Article 7 of the Law is to 'further the overriding objective by actively
managing cases in criminal proceedings'.
Pursuant to Article 9, the Court 'may give any direction and take any
step actively to manage a case unless that direction or step would be
inconsistent with any rule made under this Law or provision of this Law or any
other enactment'. Article 9(2) goes
on to provide a number of examples of case management powers including the
power on the part of the Court to give directions at hearings 'in public or
private'. Such a directions hearing
would not on its face extend to a substantive hearing such as a sentencing
hearing, but it is plain from the Rules made under the Law that hearings of
application, for admission of bad character or hearsay evidence may take place
in private."
13. The Court went on to set out the terms of
Article 6 and concluded that the Magistrate's Court (the same would apply
to the Royal Court), when exercising its case management powers, had the power
to order that a hearing, including a sentencing hearing, be heard in
private. The case of D v AG
was a case involving a defendant who committed the offence in question when he
was a child. Different principles
apply in such circumstances, and reference in D v AG was made at
paragraph 26 to 29 of the provisions of the United Nations Convention on the
Rights of the Child which were of relevance in that case. The "General Comment"
in respect of children's rights states that every person under the age of
eighteen at the time of the alleged commission of offence must be treated in
accordance with the rules of juvenile justice and, pursuant to Article 40 of
the Convention, such a person must have their privacy 'fully respected
at all stages of the proceedings'.
14. Those principles have no application on these
facts as the Defendant was not a child at the time of the alleged offence.
15. The defence in this case referred to the
Articles of the Criminal Procedure (Jersey) Law 2018 ("the 2018
Law"), referred to in the case of D v AG above, and submitted in
reliance upon those and other provisions contained in the same part of the 2018
Law that it is in the interests of justice for future hearings in this case to
be held in private. It was
submitted that this was an exceptional case warranting the Court making such a
finding. Further, the risk
presented to the Defendant's health and welfare was also said to extend
to members of his family; one, in particular, who no longer felt safe in her
home owing to the hostility referred to at paragraph
10 above.
16. Reference was made to the decision of the Royal
Court in L v AG [2019] JRC 223, in which the Court held that the hearing
of an application to be removed from the notification requirements under the Sex
Offenders (Jersey) Law 2010 ("the 2010 Law") should, if the
applicant discharged the burden upon them of showing it was necessary for such
an order to be made, be heard in private with a subsequent judgment
anonymised. Having set out the
principles in Al Thani, the Court made the following observations:
"12. The purpose of
the Sex Offenders Law is to protect potential victims from sexual harm, and not
to further penalise the offender, by ensuring that the police are aware of the
whereabouts of all serious sex offenders, knowledge which is of obvious
assistance in the detection of offenders and the prevention of crime (see
paragraph 25 of AG v Roberts).
Knowledge that a person is registered with the police may also dissuade
him or her from committing further offences, and thus the measures contribute
towards a lower rate of re-offending in sex offenders (see paragraph 14 of AG v
Roberts).
13. It is no part of
the scheme to encourage vigilantism through publicity of applications of this
kind, putting the safety of the Applicant and in particular innocent parties at
risk; indeed, that would increase the burden upon the paid and honorary police,
who have already deployed resources at the time of the Applicant's
conviction in regular patrols of the area in which the Applicant's wife
lives. It also seems to the Court that in a small community such as Jersey, the
potential for vigilantism is greater than otherwise might be the case.
14. For these
reasons, the Court agreed to sit in private, but it accepts that there is a
legitimate interest in the public and the legal profession knowing how
applications of this kind are treated by the Court, and therefore, this
judgment will be issued in an anonymised form."
17. In the subsequent case of A v AG [2020]
JRC 004, the Royal Court reviewed recent decisions of the Court under the 2010
Law, including L v AG. The
Court made the following observations:
"13. Sexual offences,
particularly those involving children, attract a good deal of media
attention. Some of this is not always
helpful. Increasingly, those
who have committed sexual offences also come under the scrutiny of
self-appointed protectors of the public interest whose focus is perhaps
understandably more on the victims of the crimes than on the need to reduce the
risk of further offending by the offenders in question. This risk is not invariably best
addressed in our view by publication of the names of the offenders and the fact
of their being subject to the notification requirements. Indeed, it is important that there is
some attention given to the need for the community to recognise that once an
offender has served his or her sentence, both the community and the offender
and his family need to move forward.
The caveat for the Court in relation to applications of the present kind
is that it must be satisfied on the balance of probabilities, as the
legislation provides at Article 5(6), that the risk to the public or to
particular individuals does not justify the continuation of that offender
remaining subject to the notification requirements.
14. The Court cannot
disregard this further aspect of these applications. It has to make an assessment of the
facts against the statutory test in the knowledge that if there is further
offending of a similar kind, there is a high chance of publicity which might,
rightly or wrongly, damage public confidence in the administration of justice,
with comments being made on the basis of the facts of the new offending, not
recognising that the facts put before the Court on applications of the present
kind were very different. It is
desirable that judgments setting out the reasons of the Court when dealing with
these applications are published so that the public can understand why the
Court makes the order it does.
15. Although the
Practice Direction provides that the Court will consider at the first hearing
whether the case should be heard in public or in private, in our view,
applications under the Law may be distinguished from the Al Thani approach in
this limited respect - the burden should not lie in any sense with the
offender seeking an order for a hearing in camera, requiring him to prove that
it is the only way in which justice could be done. The public interest in these cases is
wider than those issues which are contemplated by Al Thani and includes the
factors we have set out above.
Accordingly, in our judgment, the Court should be more willing than
hitherto to sit in private for applications of this kind and although no
applicant can be entirely certain that that will be the outcome, it would be
unsurprising if sitting in private for these cases became the norm. That would generally be followed by
publication of a judgment in anonymised form."
18. These decisions related to certain civil
proceedings and, in my judgment, have no read across to criminal proceedings.
Restrictions on publication
19. The power of the Court under Article 89 of the Criminal
Procedure (Jersey) Law 2018, to postpone publication of criminal
proceedings, is limited. So far as
it is relevant, it provides:
"89 Contemporary
reports of criminal proceedings
(1) In criminal
proceedings, the court may, where it appears to the court to be necessary for
avoiding a substantial risk of prejudice to the administration of justice in
those proceedings, or in any other criminal proceedings pending or imminent,
order that publication in Jersey of the proceedings or of any part of the
proceedings, be postponed for any period that the court thinks necessary for
that purpose.
(2) A court may make an
order under paragraph (1) of its own motion or on application by any of the
parties and, where a court makes an order under paragraph (1), it may give any
directions that appear to the court to be necessary for the purposes of the
order.
.....
(5) Where a court has made
an order under paragraph (1), if a report is included in a publication or
relevant programme in contravention of that order the following shall be guilty
of an offence and liable to a fine -
(a) where the publication
is a newspaper or periodical, any proprietor, editor or publisher of the
newspaper or periodical;
(b) where the publication
is a relevant programme, any body corporate which
provides the service in which the programme is included and any person having
functions in relation to the programme corresponding to those of an editor of a
newspaper;
(c) in the case of any
other publication, the person who publishes it.
(6) This Article shall be
in addition to, and not in derogation from, any other enactment or rule of customary
law with respect to the publication of reports and proceedings of any
court."
20. Accordingly, although without prejudice to the
Court's power to make an order for hearing(s) to take place in private in
exceptional cases where it is necessary to do so, the statutory power under
Article 89 is limited to making such an order where it is 'necessary
for avoiding a substantial risk of prejudice to the administration of
justice' in the proceedings or other criminal proceedings. A common example of this is the Court
making an order preventing any publication in relation to the first trial in
the case of a defendant facing two or more trials until the conclusion of the
final trial. However, such trials
are still held in public - it is merely that publication of the
proceedings is postponed.
21. I note the recently published English guidance
on Reporting Restrictions in the Criminal Courts published in September 2022,
which provides a helpful structured approach for judges, which requires the
judge to:
(i)
check the
nature of the proposed restriction and its legal basis;
(ii) consider whether the proposed restriction is
necessary in the interests of justice;
(iii) if restrictions are necessary, consider how far
should they go;
(iv) invite representations from the media;
(v) commit any order, which may be given orally,
into writing;
(vi) notify the media of any restrictions imposed;
and
(vii) keep the matter under review - and hear
any representation made by the media if the media were not heard before the
order was made.
This guidance should be adopted,
particularly in respect of the representations by the media.
22. The guidance in respect of criminal trial says:
"The court has an inherent or
implicit power to regulate its own proceedings, however, and may hear a trial
or part of a trial in private, but this is the most extreme measure, to be
adopted only in exceptional circumstances, where the hearing of the case in
public would frustrate or render impractical the administration of
justice. The test is one of
necessity. The fact, for example, that hearing evidence in open court will
cause embarrassment to witnesses does not meet the test for necessity."
23. The guidance gives examples of circumstances
which might justify hearing a criminal case in private, which include
situations where the nature of the evidence, if made public, would cause harm
to national security, e.g. by disclosing sensitive operational techniques, or
identifying a person whose identity ought to be protected, e.g. an undercover
police officer. The application
should be supported by evidence and the test to be applied in all cases is the
same. Disorder in Court may justify
the clearance of the public gallery, but representatives of the media, who are
unlikely to have participated in such a disorder, should normally be allowed to
remain.
24. Mr Sibcy observed
that, although the Court has an inherent jurisdiction to sit in private, which
is well established, it does not have inherent jurisdiction to restrict
reporting. Such a power, it if
exists, can only be found in statute.
There, of course, are other statutory provisions not referred to above,
which prevent reporting which may identify complainants in sex cases and
children, e.g. the Criminal Justice (Anonymity in Sexual Offence Cases)
(Jersey) Law 2002, which prima facie provides that complainants in
sexual offence cases are entitled to lifelong anonymity. In Khuja
v Times Newspapers Limited and Others [2017] UKSC 49, Lord Sumption, giving
the judgment of the majority (five of the seven Law Lords) said:
"14. The principle of open
justice has, however, never been absolute. There have been highly specific
historic exceptions, such as the matrimonial jurisdiction inherited from the
ecclesiastical courts, the old jurisdiction in lunacy and wardship and
interlocutory hearings in chambers, where private hearings had become
traditional. Some of these exceptions persist. Others have been superseded by
statute, notably in cases involving children. More generally, the courts have
an inherent power to sit in private where it is necessary for the proper
administration of justice: .... Traditionally, the power was exercised
mainly in cases where open justice would have been no justice at all, for
example because the dispute related to trade secrets or some other
subject-matter which would have been destroyed by a public hearing, or where
the physical or other risks to a party or a witness might make it impossible
for the proceedings to be held at all. The inherent power of the courts extends
to making orders for the conduct of the proceedings in a way which will prevent
the disclosure in open court of the names of parties or witnesses or of other
matters, and it is well established that this may be a preferable alternative
to the more drastic course of sitting in private: see R v Socialist Worker
Printers and Publishers Ltd, Ex p Attorney General..... But the court
retains the power which it has always possessed to allow evidence to be given
in such a way that the identity of a witness or other matters is not more
widely disclosed in open court, if the interests of justice require it. Where a
court directs that proceedings before it are to be conducted in such a way as
to withhold any matter, section 11 of the Contempt of Court Act 1981 allows it
to make ancillary orders preventing their disclosure out of court. Measures of
this kind have consistently been treated by the European Court of Human Rights
as consistent with article 6 of the Convention if they are necessary to protect
the interests of the proper administration of justice: Doorson
v The Netherlands (1996) 22 EHRR 330, para 71; V v
United Kingdom (1999) 30 EHRR 121, para 87; cf A v
British Broadcasting Corpn [2015] AC 588, paras 44-45
(Lord Reed). But necessity remains the touchstone of this jurisdiction.
15. More recently, two factors have
combined to broaden the scope of the exceptions to the open justice rule and
the frequency of their application. One is the growing volume of civil and
criminal litigation raising issues of national security. This calls for no
comment on the present appeal. The other is the recognition of a number of
rights derived from the European Convention on Human Rights, which the courts
as public authorities are bound by section 6 of the Human Rights Act 1998 to
respect. The Convention right most often engaged in such cases is the right
under article 8 to respect for private and family life. Article 8 rights are
heavily qualified by the Convention itself, and even when they are made good
they must be balanced in a publication case against the right to freedom of
expression protected by article 10. But other Convention rights may
occasionally be engaged which are practically unqualified, such as the right to
life under article 2 and to protection against serious ill-treatment under
article 3: A v British Broadcasting Corpn [2015] AC 588.
These countervailing interests have become significant, not just because they
have come to be recognised as legal rights, but because the resonance of what
used to be reported only in the press and the broadcasting media has been
greatly magnified in the age of the internet and social media."
25. Lord Sumption went on to consider balancing the
claimants' Article 8 rights in that case against the Article 10 rights
usually asserted by the media. At
paragraph 16, in respect of the media, he said:
"It has been recognised for
many years that press reporting of legal proceedings is an extension of the
concept of open justice, and is inseparable from it. In reporting what has been
said and done at a public trial, the media serve as the eyes and ears of a
wider public which would be absolutely entitled to attend but for purely
practical reasons cannot do so."
26. At paragraphs 17 and 18 he observed:
"17. The limits on
permissible reporting of public legal proceedings are set by the law of
contempt, the law of defamation and the law protecting the Convention rights.
18. The inherent power of the Court
at common law to sit in private or anonymise material deployed in open court
has never extended to imposing reporting restrictions on what happens in open
court. Any power to do that must be
found in legislation."
27. However, such legislation includes
consideration, where appropriate, of Convention rights enshrined into domestic
law. Lord Sumption went on to set
out the terms of Articles 8 and 10 of the European Convention on Human Rights,
namely the right to respect for private and family life and freedom of
expression respectively. He noted
at paragraph 21 of the judgment that the English Courts had now effectively
recognised a qualified common law right of privacy, and at paragraph 22 that
the cause of action for invasion of a claimant's right to private and
family life was relatively new to the common law and originated from the
incorporation of the Convention into domestic law. The same principles apply in Jersey and
may be a significant factor to take into account when considering applications
such as these. At paragraph 22,
Lord Sumption went on to consider what Lord Steyn said in Re S [2004] UKHL 47, in respect of the Articles 8 and 10 of the Convention:
"First, neither article has
as such precedence over the other. Secondly, where the values under the two
articles are in conflict, an intense focus on the comparative importance of the
specific rights being claimed in the individual case is necessary. Thirdly, the
justifications for interfering with or restricting each right must be taken
into account. Finally, the proportionality test must be applied to each. For
convenience I will call this the ultimate balancing test."
28. Lord Sumption's following observation is
germane to this case:
"23. These two decisions [Re
S and Campbell v MGN [2004] AC 457] are the principal English authorities for
an approach to the balancing exercise which is fact-specific rather than being
dependent on any a priori hierarchy of rights. On some facts, the
claimant's article 8 rights may be entitled to very little weight. On
some facts, the public interest in the publication in the media may be slight
or non-existent. Nonetheless, in deciding what weight to give to the right of
the press to publish proceedings in open court, the courts cannot, simply
because the issues arise under the heading "private and family
life", part company with principles governing the pre-emptive restraint
of media publication which have been accepted by the common law for many years
in the cognate areas of contempt of court and defamation, and are reflected in
a substantial and consistent body of statute law as well as in the
jurisprudence on article 10 of the Human Rights Convention."
29. Nonetheless, it is clear from the authorities,
including the decision in Khuja, that it will
be a rare case where a claimant's Article 8 rights result in
non-publication of proceedings or (as any relief would need to be
proportionate) the specific aspects of proceedings which infringed the claimant's
rights.
30. In Re Trinity Mirror and Others [2008] EWCA Crim 50, the English Court of Appeal said that an anonymity order made to
protect a defendant who had admitted child pornography offences, because of the
risk that his children would suffer bullying, was "inapt". It is clear from the decision in Trinity
Mirror that the inability of the Crown Court to grant injunctive relief in most
circumstances does not extend to the English High Court which, of course, has a
similar broad jurisdiction of the Royal Court and is entitled to grant
injunctive relief wherever it is just and convenient to do so. As the President of the Queen's
Bench Division, Sir Igor Judge, said at paragraph 22 in that case:
"The essential question would
not be the existence of the power, but the very limited and exceptional
circumstances in which it may be appropriate for it be exercised."
In any event, the legislative power
permitting injunctive relief to be granted so as to restrict reporting would,
in most circumstances, arise by virtue of alleged breaches of rights protected
by Article 8 of the Convention.
31. As to the interplay between the various
relevant rights provided for under the Human Rights legislation, the practice
guidelines issued in September 2022 referred to above, provides:
"As public authorities under
the Human Rights Act, courts must act compatibly with Convention rights,
including the right to freedom of expression under Article 10 ECHR and the
right to a public hearing under Article 6 ECHR. However, both Article 10 and
Article 6 permit of exceptions. In some cases, the right to privacy under
Article 8 may be engaged and need to be weighed in the balance. However, any
restriction on the public's right to attend proceedings in the courtroom
and the media's ability to report them must fulfil a legitimate aim under
these provisions and be necessary, proportionate and convincingly
established. It is for the party
seeking to derogate from the principle of open justice to produce clear and
cogent evidence in support of the derogation. (R v Central Criminal Court ex parte W, B and C [2001] 1 Cr. App. R 2)."
32. The submission made on behalf of the media in
this case was that, for better or worse, in a free and open society in the
digital age, run of the mill commentary on social media regarding Court
proceedings is inevitable. However,
as identified on behalf of the media, adverse comment by ordinary members of
the public directed at the Defendant can tip into vigilantism which may lead to
criminal conduct and, depending upon the orders made by Court, may amount to
contempt of Court. Further, there
were no concerns ventilated by the defence in relation to the established
Jersey media, who generally understand the need for fair and accurate
reporting. Mr Sibcy
argued that there was nothing exceptional about the Defendant's
vulnerabilities, and that many defendants suffered from challenges to their
mental health which may be exacerbated by adverse attention on social
media. It was said on behalf of the
media that allowing a derogation from a principle of open justice in this case
would open the floodgates to others to make similar applications, with a
consequent risk to the principles of open justice.
33. All parties drew my attention to the decision
of the English Court of Appeal in ex parte British
Broadcasting Corporation [2016] EWCA Crim 12, a judgment given by the
President of the Queen's Bench Division, Sir Brian Leveson. The first two paragraphs of the judgment
provide the background to that case and, in some respects, this case:
"It is beyond argument that
members of the public have long held and expressed views about all aspects of
the criminal trial process, including the guilt of those facing trial, the
gravity of the offending and the appropriate sentence. In the privacy of their
homes, or in social gatherings, expressions of such views are part of the
discourse of life. What passes in such discussions does not in any way affect
the trials about which comment is made and those who might be affected (such as
jurors) are unlikely to be involved. In any event, all jurors receive a warning
in every trial not to discuss the case they are trying outside their number or
allow anyone else to discuss it with them. In that way, the integrity of the
process is protected.
The world has now changed and
observations which were previously communicated orally or had the most limited
publication now appear on social media sites and are readily accessible by a
potentially vast audience. In that regard, what is published can extend beyond
the reach of the traditional media (whether newspaper or television). Everyone
is bound by the common law of contempt, but, as regards the traditional media,
in order to ensure the fairness of the trial and to protect those whom the law
has considered deserving of protection, there are further real constraints on
what can be reported: these are contained within the Contempt of Court Act 1981
("the 1981 Act"). This case, for the first time, raises the issue of
how critical fair trial protections can be extended to prevent or control
communications on social media."
34. In that case, the two defendants, both
children, were charged with the murder of a woman. They pleaded not guilty to murder and,
during the trial, the defence became aware of numerous adverse comments posted
about the defendants by members of the public on the Facebook link to a
newspaper local to the proceedings, namely the Hartlepool Mail. At paragraph 8, the Court said:
"Without giving further
unwarranted prominence to them, they fell into one of three categories: there
were those that were threatening to the accused, those which were derisive of
their not guilty pleas, and those which were dismissive of the court
process."
35. There were also comments on the Facebook pages
of various national newspapers and other media organs. The judge (Globe J) observed that no one
had suggested that the news reports themselves, issued by the media outlets,
were other than fair, accurate and reasonable, but the comments left by members
of the public were 'extreme'. The judge made an order under the 1981
Act directing the media, inter alia, to remove any posted comments on
any media reports, prevent the ability to leave posted comments upon such
reports from any website under the control of the media organisations and, inter
alia, prohibit the publication of posted comments on any media report of
the trial on websites under their control.
36. Such was the nature of the widespread
discussion on social media that defence counsel submitted that the content was
so prejudicial that the fairness of the trial was imperilled and there was a
real risk of injustice to the defendants.
The judge noted he had given the usual warnings to the jury about not
researching the case online and being wary of the possibility of inaccurate
reports. But he had not foreseen
the 'avalanche of public outrage recorded on social media in reaction
to media reports' and, accordingly, he discharged the jury and a new
trial was ordered at a different Crown Court. The judge then received submissions from
a number of media organisations in respect of the orders that he had made,
which were said to be disproportionate and unworkable. The judge then made an order restraining
the publication of any report of any part of the proceedings until the fresh
trial had concluded or further order of the Court. The media organisations appealed to the
Court of Appeal. The Court of
Appeal made the following observations:
"35. In relation to modern social media, comments are
immediately available at the click of a mouse and although we recognise that
the printed pages of comments which have been put before us are not reflective
of what would be seen by searching a computer, we do not accept (as was argued)
that those trawling the internet would not go beyond the first page. There is a
real risk that those interested in the subject matter would continue to scroll
down comments, or potentially worse, search out the most 'likes' which are
themselves likely to be the most inflammatory.
36. Suffice
to say, we have no doubt that the publication on social media of comments of
the type which caused Globe J to discharge the jury in Teesside would create a
substantial risk of serious prejudice which could easily threaten a second
trial as it undermined the first. Testing it another way, it is inconceivable
that a responsible media organisation would allow comments on their own
websites of the type of which complaint is made: even if comments of any sort
were permitted (which we doubt) they would be moderated and excluded. We saw no
reason why the approach should be different when the report is copied onto the
media organisations' Facebook or other social media site."
37. At paragraph 39, the Court held that an order
preventing any publication of the trial was a 'disproportionate interference
with the Article 10 ECHR rights of the press and the importance rightly
attached to contemporaneous reporting of criminal proceedings which attract
considerable entirely legitimate public interest'. The Court went on to note that although
it had received submissions from the media organisations, the Director of
Public Prosecutions and the individual defendants, there were wider issues
involved than encompassed by the particular litigation, and the Court noted:
"We have no doubt that the
Attorney General (as guardian of the public interest in this area) should be
involved in the general analysis of the overall position in order that a wider
consultation can take place and appropriate guidance issued."
38. This is a matter which I invite the Attorney
General to consider as it will be his responsibility, in the first instance, to
bring persons before the Court who may have impeded or prejudiced the course of
justice by their actions.
39. In its conclusions, the Court of Appeal
observed that it was 'beyond doubt' that the particular
Facebook material did 'contain material which potentially prejudiced
the rights of [the defendants] to a fair trial and creates a substantial risk
in relation to the trial which is about to commence. Those responsible for the website risk
proceedings for contempt of Court unless it is immediately
removed....'. The
Court ordered the link to be removed, giving Facebook the opportunity to apply
to the Court within seven days to discharge the order. It needs to be clearly understood that
any posting of material which may impede or prejudice the course of justice in
Jersey may amount to a contempt of Court which could give rise to criminal
sanctions, including imprisonment.
It might also, depending upon the circumstances, give rise to investigation
and prosecution for the offence of attempting to pervert the course of
justice. It may be that inaccurate,
hostile and / or inflammatory contributions on social media may be more likely
to prejudice the course of justice in Jersey as such comments are more likely
to come to the attention of jurors and potential jurors.
40. The Court of Appeal went on to say:
"43. In that regard, we ought
to underline that anyone posting a comment on a publicly available website
which creates a substantial risk of causing serious prejudice faces the
potential prospect of proceedings for contempt of court and we anticipate that
the authorities will be alert to inform the Attorney General should such
circumstances arise. This does not just apply to the appellant or any other
media organisations: it applies to individuals who run the risk of causing real
difficulty to the smooth progress of a fair trial for these defendants."
In my view, the same principles apply in
Jersey. It is the police who
should, in the first instance, notify the Attorney General of such
circumstances.
41. The Court of Appeal went on to make a limited
order preventing the media organisations from placing any report of the
criminal trial on their Facebook profile pages, and to disable the ability of
users to post comments on their respective news websites on any report of the
criminal trial published by the media organisations on such websites.
42. I note that it is already the practice of, I
believe, all media organisations in Jersey to prevent comments being made on
criminal proceedings reported on their websites, and if it is not the practice
of any news / media organisations of which I am unaware, then it should be.
43. Finally, the Court of Appeal noted that they
had 'no doubt that the police will take appropriate steps to support
witnesses and discourage them from researching the trial on the internet. Those responsible for the custody and
care of [the defendants] must take steps to isolate the defendants from
potentially prejudicial material which could divert their attention from the
exceptionally important issues that will be ventilated at trial'.
Conclusion
44. Many of the principles set out by the Court of
Appeal in ex parte BBC are of obvious
relevance to the circumstances of this case. I also agree with what Sir Igor Judge
said in Trinity Mirror Plc [2008], at paragraph 32:
"In our judgment it is
impossible to over-emphasise the importance to be attached to the ability of
the media to report criminal trials.
In simple terms this represents the embodiment of the principle of open
justice in a free country. An
important aspect of the public interest in the administration of criminal
justice is of the identity of those convicted and sentenced for criminal offences
should not be concealed.
Uncomfortable though it may frequently be for the defendant that is a
normal consequence of his crime."
45. The Court's duty in criminal proceedings
is not to protect the reputation or feelings of defendants and other third
parties. It is to protect the
administration of justice. As Lord
Read said in AG v Times Newspapers [1974] AC 273 at page 294:
"The law on this subject is
and must be founded entirely on public policy. It is not there to protect the private
rights of parties to a litigation or prosecution. It is there to prevent interference with
the administration of justice and it should, in my judgment, be limited to what
is reasonably necessary for that purpose.
Public policy generally requires a balancing of interest which may
conflict. Freedom of speech should
not be limited to any greater extent than is necessary but it cannot be allowed
where there will be real prejudice to the administration of justice."
46. In the circumstances, I have no doubt, and I
find, that any trial of these proceedings must be heard in public in the usual
way. The same applies to any
determination, if the Defendant is unfit to stand trial by jury, as to whether
or not he did carry out the acts alleged to constitute the offences with which
he is charged. Such a hearing is
sometimes required under the provisions of the 2016 Law. As Sir Michael Birt, Commissioner,
recently determined in AG v Nicolle [2022] JRC 268:
"There is a very strong
public interest in criminal proceedings taking place in public.
Furthermore, there is now the issue
as to whether the defendant should be held criminally responsible. In my opinion a matter such as this
cannot be held behind closed doors, so that the public do not know what has
been said and what the evidence is.
I find that the public interest in criminal proceedings being held in
public, particularly of this gravity, outweigh any risks to the mental health
of the defendant."
47. It was accepted, certainly on behalf of the
media, that it was arguable that different principles perhaps applied to
hearings such as this, namely hearings to determine whether or not a defendant
should be remanded to a specialist unit for assessment for the purposes of the
provisions of the mental health legislation, from that which may apply to a
trial.
48. Certainly, the public interest in such hearings
will be less and, arguably, there is a risk that such hearings may involve the
ventilation of private details about a defendant's mental health which
might, if widely publicised, prejudice a future jury from considering the evidence
fairly if, ultimately they are found to be fit to stand trial and evidence in
relation to their mental health is irrelevant to determination of their guilt
or innocence. However, I remind
myself of the strong presumption in favour of open justice, the fact that
departures from that principle can only be justified on the grounds of
necessity, and that all those reporting and commenting on such matters, whether
by way of the accredited media or otherwise, must be fully aware of the need
not to report any matters that would cause prejudice to the course of justice,
which would give rise to possible proceedings for contempt of Court. Such proceedings are summary proceedings
which, by their very nature, need to be resolved quickly in order that the
course of justice is not prejudiced.
In R v Griffin [1989] 88 Cr App R 63 at page 67, Mustill LJ
said:
"In proceedings for criminal
contempt there is no prosecutor, or even a requirement that a representative of
the Crown or of the injured party should initiate the proceedings. The judge is
entitled to proceed of his own motion.
There is no summons or indictment,
nor is it mandatory for any written account of the accusation made against him
to be furnished to the contemnor.
There is no preliminary enquiry or
filtering procedure, such as a committal.
Depositions are not taken. There is
no jury. Nor is the system adversarial in character. The judge himself enquires
into the circumstances, so far as they are not within his personal knowledge.
He identifies the grounds of complaint, selects the witnesses and investigates
what they have to say (subject to a right of cross-examination) decides on
guilt and pronounces sentence. This summary procedure, which by its nature is
to be used quickly if it is used at all, omits many of the safeguards to which
an accused is ordinarily entitled, and for this reason it has been repeatedly
stated that the judges should choose to adopt it only in cases of real
need."
49. In Alan Wilkinson v
The Lord Chancellor's Department [2003] EWCA Civ 95, Hale LJ said at paragraph 20:
"Once a judge has decided
that it is proper to invoke the summary procedure, she has to secure that the
process is as fair as possible for the alleged contemnor, consistent with its
being a summary procedure.
Arrangements must be made for him to be legally represented. A short period of reflection is
valuable. The contemnor is given
the opportunity to contain his anger, consider the situation, apologise to the
Court and assure it of his good behaviour in future."
50. Accordingly, I order that all proceedings in
this case take place in public, but that the publication of this judgment be
postponed (although it must be communicated to the relevant representatives of
media) until any trial of the Defendant has concluded.
Authorities
Mental Health (Jersey) Law 2016.
Jersey
Evening Post v Al Thani and Others [2002] JLR 542.
Trusts (Jersey) Law 1984.
Human Rights (Jersey) Law 2000.
D
v AG [2022] JRC 228.
Criminal Procedure (Jersey) Law 2018.
L
v AG [2019] JRC 223.
Sex Offenders (Jersey) Law 2010
A
v AG [2020] JRC 004.
Criminal Procedure (Jersey) Law 2018.
Criminal Justice (Anonymity in Sexual
Offence Cases) (Jersey) Law 2002.
Khuja
v Times Newspapers Limited and Others [2017] UKSC 49.
Re S [2004] UKHL 47.
Re Trinity Mirror
and Others [2008] EWCA Crim 50.
British
Broadcasting Corporation [2016] EWCA Crim 12.
AG v Times Newspapers [1974] AC 273.
AG
v Nicolle [2022] JRC 268.
R v Griffin [1989] 88 Cr App R 63.
Alan Wilkinson v
The Lord Chancellor's Department
[2003] EWCA Civ 95
