HM Attorney General v British Broadcasting Corporation

This application relates to the so called “Cash for Honours” inquiry being conducted by the Metropolitan Police, which has attracted considerable publicity. The inquiry is in two parts: first, an investigation into whether honours have been bestowed in exchange for financial assistance; and second, an investigation into whether there has been an attempt to pervert the course of justice in connection with the investigation. In this application we are concerned only with the second part of the investigation.

This is an application for permission to appeal by the BBC against an order of Swift J made last Thursday 8 March 2007 refusing to discharge part of an order made by Wilkie J during the evening of the previous Friday 2 March. The order made by Wilkie J was made on the application of the Attorney General and was made against the BBC. Paragraph 1 of the order provided:

As Swift J put it, those paragraphs were designed to ensure that the object of the injunction was not frustrated by the publication of details of what had taken place during the hearing or the contents of the judge’s judgment.

The application before Swift J and indeed the hearing before us has been concerned with those three paragraphs. The persons referred to in Schedule B included the Director General of the BBC and were included so as to enable instructions to be taken with regard to a possible appeal. Wilkie J granted permission to appeal.

The Attorney General did not seek to restrain the BBC from reporting the mere fact that he had applied for and obtained an injunction against the BBC in connection with the “Cash for Honours” investigation. As a result during the weekend of 3 to 4 March 2007, the national media, which were unaware of the terms of the injunction, published extensive reports about the Attorney General’s “gag” on the BBC, what was likely to be the subject of the injunction, and the progress of the investigation. On Monday 5 March, a week ago today, in the light of the media coverage over the weekend, the Attorney General agreed to a variation of the injunction so that it read:

Some time in the late afternoon or evening of 5 March the Attorney General applied to Swift J as the duty judge for an injunction in the same terms, that is the terms as varied, against The Guardian newspaper. However, it became apparent during the hearing that the first edition of The Guardian, comprising 20,000 to 30,000 copies, was in the process of printing and distribution with no practical means of recalling it. In those circumstances, given the fact that the injunction was already in effect in the public domain, Swift J did not regard it as appropriate to grant the injunction sought. On the next day, Tuesday 6 March, the Attorney General agreed with the BBC that save for three paragraphs, Friday’s injunction should be discharged. Swift J accordingly made an order to that effect.

That left three paragraphs of the order still in force. They were paragraphs 2, 3 and 5 which I have already quoted. The BBC sought the discharge of those paragraphs of the order before Swift J on the afternoon or evening of 7 March. She gave judgment refusing the application on the morning of 8 March last Thursday. She delivered her judgment in private, although a little later she delivered a truncated judgment in public. She refused permission to appeal.

The BBC now seeks permission to appeal against her order. On Friday 9 March I directed that the application for permission to appeal be heard today, with the appeal to follow if permission is granted. We grant permission to appeal.

In order to put the appeal in context it is necessary to return to the events before Wilkie J. No evidence as such was put before him. The only document we have seen is an undated application notice which was issued on 5 March, which was of course the Monday after the Friday when the order was made. The application notice is signed by Mr A P Chapman and includes the following:

Mr Chapman signed the Statement of Truth at the bottom of the form. No further and better particulars were given of the statement and no statement has subsequently been lodged stating in the form of evidence what Wilkie J was told by Mr Havers QC on behalf of the Attorney General.

I refer to the fact that no subsequent written evidence was lodged with the court not because it has any bearing on our decision or because I wish to be critical of any one concerned in this case, but because it raises a point of some practical importance. It seems to me that when an urgent application is made to a judge for interlocutory injunctive relief (whether in this or any other class of case) and counsel puts facts or evidence before the court orally, such facts and evidence should subsequently be put into the form of a statement or statements which should bear a declaration of truth. In this way there should be no confusion or misunderstanding as to what the claimant’s evidence is. I will return to the evidential or other basis for the application to Swift J in a moment.

The application to Wilkie J was expressed to be made:

In giving his reasons granting the Attorney General’s application Wilkie J had regard to articles 6 and 10 of the European Convention on Human Rights and to section 12(3) and (4) of the Human Rights Act 1998 [the HRA]. Articles 6 and 10 provide so far as relevant:

It was common ground before Wilkie J that the question was whether he was satisfied to the criminal standard that the publication would infringe Section 2 (1) and (2) of the Contempt of Court Act 1981, namely that:

In her judgment on 8 March Swift J gave a clear and -- it is common ground for present purposes -- complete account of what Mr Havers had told Wilkie J. She observed that the material deployed went further than the subject matter of the document at issue. It emanated from the police officers responsible for conducting the information. Swift J observed that if Wilkie J’s order were discharged in its entirety, all that material would be released into the public domain.

Although on one view it was for the BBC to discharge the remaining paragraphs of the injunction, the judge treated the application before her as an application by Mr Havers on behalf of the Attorney General for a variation of Wilkie J’s order by seeking an order that the remaining paragraphs remain subject to the order. On that basis the judge correctly said that the application was made under CPR 39.2, which provides so far as relevant:

The judge said that the application was made under rule 39.2 (3) (c) and (g). She said in paragraph 7:

I will return to the test in a moment but first refer to Mr Havers’ key submission, which was the same before Swift J as it had been before Wilkie J. It was that, absent the injunction, there was a substantial risk that the course of justice would be impeded or prejudiced because there was a substantial risk that the police investigation would be impeded or prejudiced.

Both the nature of Mr Havers’ submission and the judge’s conclusion on this central point can be seen from paragraph 19 of her judgment as follows:

I return to the test. Mr Pannick submits that CPR 39.2 is concerned only with whether the hearing is to be in public. He submits that the mere fact that the court directs that it take place in private does not mean that any publication of proceedings at the hearing is a contempt of court. He relies upon Section 12 of the Administration of Justice Act 1960, which provides to far as relevant:

Mr Pannick also relies upon the decision of this court in Hodgson v Imperial Tobacco Limited [1998] 1 WLR 1056 especially per Lord Woolf, MR giving the judgment of the court at pages 1070 and 1072. At page 1070 D Lord Woolf said that proceedings in chambers are always correctly described as being conducted “in private” and at page 1072 he described the principles referable to proceedings in chambers as including:

It is however important to note that Hodgson v Imperial Tobacco was decided before the Civil Procedure Rules. Since then it has been held in Economic Department of the City of Moscow v Bankers Trust Company [2004] EWCA Civ 314 [2005] 1 QB 202 that the word “private” in rule 39.2 means the same as “secret”. Lord Justice Mance said at paragraph 22:

He submits that there is no support for the proposition that the criminal burden of proof is applicable to applications under rule 39.2. Mr Pannick submits on the other hand that publication would only be a contempt if a specific order was made under Section 4 of the Contempt of Court Act 1981.

It is not necessary for us to resolve these issues in this appeal. There may well be orders made under rule 39.2 which do not necessitate the application of the criminal standard of proof. However, all depends upon the circumstances. As already stated, it was common ground before Wilkie J that in order to succeed, the Attorney General had to make the judge sure that, absent an injunction, there was a substantial risk that the investigation would be seriously prejudiced. It was not suggested before us that common ground was wrong. It seems to us that where, as here, the Attorney General seeks to maintain the disputed paragraphs on the same basis, namely a substantial risk that the investigation would be seriously prejudiced, he must satisfy the same standard of proof as when he sought a wider injunction. As Swift J observed, the orders made in the disputed paragraphs were made in order to ensure that the object of the principal injunction was not frustrated. The object was to avoid the investigation being seriously prejudiced. Now that the paragraphs stand alone but with the same object, both logic and principle lead to the conclusion that the standard of proof should be the same. For these reasons I would accept Mr Pannick’s submission that the judge erred in principle in holding that the threshold was significantly higher before Wilkie J.

I would only add this. It was suggested in argument that there may be cases in which a claimant might wish to disclose confidential information to a court on the basis that the hearing was in private and that the information should remain private and not be published even if the substantive application failed. This is not such a case because that was not the basis upon which the application was made. In such a case I would expect the position to be made clear to the judge, and indeed the defendant, at the outset although I would not go so far as to say that there might not be exceptions to that approach. On the facts here, as Mr Pannick observed, no application was made for the hearing to be in private until after Wilkie J gave his judgment, when it was agreed that it was to be treated as having been in private. The note of the hearing shows that it was appreciated by those advising and appearing for the Attorney General that the hearing was in public or at least potentially in public because in relation to one aspect of the evidence Mr Havers said that he could not give a reason why the police wanted to know whether Mr Powell received the central document in the case because:

I turn to the facts. The judge identified the material which Mr Havers contended should not be published as falling into three different categories.

Mr Havers submitted to the judge, as he has submitted to us, that there should be no interference with the police strategy. They must be left to carry out their investigations as they think fit, which involves not forewarning those likely to be reinterviewed (whether as witnesses or suspects) of police thinking. In particular, it was contrary to the public interest to reveal any uncertainty in the minds of the police. In short, it would be highly damaging for potential interviewees to be informed about police thinking and strategy or for the police thinking and strategy to be placed into the public domain. As to the facts, it would be damaging for those concerned to know that the document was not an email and that it was not a short document or that the police were uncertain about the role of Mr Powell vis-à-vis the document. As to Mr McTernan it would be unhelpful for details of information confidential to the police to be disclosed to him.

The judge weighed the submissions on either side and finally set out her conclusions in paragraph 19, which I have already quoted.

I have reached the conclusion that the judge’s conclusions cannot be supported. For the reasons I have already given, I do not think she applied the correct test. I recognise that if, contrary to that view, she did apply the correct test, this court will not interfere with her decision unless persuaded that she was plainly wrong. I am so persuaded. In my opinion the judge’s conclusions do not sufficiently have regard to the fact that the injunction which the Attorney General principally sought with regard to the document has now been discharged. I can understand the police concerns with regard to the document itself and, indeed, the judge’s description of those concerns as put to Wilkie J by Mr Havers demonstrates their fears. Hence the real concern was to be able to put the documents to interviewees and not to give potential interviewees opportunities to obtain copies of the documents in advance and thus enable them to prepare responses in advance, with the possible result that the interviews would be frustrated. Hence also the concern was about advance publicity of the document.

In my judgment, however, once the injunction which relates to the document itself was discharged, those concerns no longer have the force they had before. It seems to me that publication of the fact that the document is an email and is longer than might have been thought is most unlikely to have any significant impact on the investigation. I would accept Mr Pannick’s submission that there is a considerable element of speculation about the residual concerns of the police. There is no convincing evidence that any of those named is likely to take steps to obstruct the investigation if what Wilkie J and Swift J were told is made public. There is I think much force in Mr Pannick’s submission that, in the light of what has already been published, all those named will expect to be asked questions about the documents and will carefully prepare their answers. That must include Mr McTernan, who must know that there is a document and will no doubt prepare for any future interview. There is a suggestion that one or more of the potential interviewees will prepare to respond dishonestly in future interviews if the disputed paragraphs in the order are not discharged. However, to my mind that is really only speculation and unsupported by evidence.

In all these circumstances I would not uphold the conclusion in so far as it accepts the submission that there would be a substantial prejudice to the conduct of the investigation if these paragraphs do not remain in force which was, after all, the principal thrust of Mr Havers submissions.

In paragraph 20 of her judgment the judge added a concern of her own which was not suggested by counsel or indeed by Wilkie J. She said this:

In my judgment there is really no evidence in support of these concerns. There is certainly no evidence that anyone brought to trial would not receive a fair trial; see for example the powerful considerations in the recent decision of the Court of Appeal Criminal Division led by the Lord Chief Justice in Regina v Abu Hamza [2006] EWCA Crim 1918, [2007] 2 WLR 226. Nor is there any reason to think that any particular proposed interviewee would be prejudiced. They will no doubt have the benefit of legal advice throughout and I see no basis for real concern that they will not be able to deal with any questions that might be asked, whether or not the disputed the paragraphs are retained in the order.

Finally the judge said this about confidentiality:

For all these reasons I would allow the appeal. As I see it, subject to any particular submission which may be made by counsel, this will mean that the argument before Wilkie J and Swift J, the judgments of both judges, the various orders made by both judges, the argument in this court and our judgments will all be in the public domain.

I agree

I also agree.