B, Re

This is an appeal under section 159 of the Criminal Justice Act 1988 by the British Broadcasting Corporation, the Times newspaper and Associated Press against the order made by Butterfield J at the Central Criminal Court (sitting at Woolwich Crown Court) on 12 October 2006, and confirmed on 17 and 18 October. The judge ordered the postponement of reporting in the media of the sentencing hearing against Dhiran B until the conclusion of the trial of his co-defendants.

This is a very high-profile case. The application is argued before us by Mr Andrew Nicol QC. It is supported by Mr Edmund Lawson QC on behalf of the Crown. His position is that in the particular circumstances of this case there was no basis for concluding that there would be prejudice caused to the future trial by fair and accurate contemporaneous reporting of the sentencing hearing.

The appeal is opposed by the co-defendants, some of whom successfully applied to the judge to make the order now under appeal. We hope that we shall be forgiven at this time of the day if we do not set out all the detailed arguments which have been drawn to our attention. We studied the written submissions before we came into court and we have reflected on the oral submissions put before us this afternoon.

The appeal is brought against the decision of the trial judge, Butterfield J. He was very familiar with all the issues in the case. We have given close attention to his reasoning and the basis upon which he came to his conclusion. In the end, however, we are not being asked to interfere with the exercise of the judge's discretion. We are invited to the conclusion that, in the particular circumstances of what the judge recognised as a difficult case, his final conclusion was wrong.

Mr Nicol invited us to the observations in Ex parte The Telegraph Group plc and others [2001] 1 WLR 1983, 1987, where Longmore LJ giving the judgment of the court said:

A further consideration at this stage is that we are not here addressing, nor was the judge, whether there was or had been any abuse of process arising from pre-trial publicity; nor whether the publicity before or during a trial may have produced a miscarriage of justice. In short, we are not looking backwards at facts which can be established, or prejudice which may have materialised, but at a predicted, potential or possible risk of unfairness if publicity of this sentencing hearing were not postponed.

We shall explain the facts very briefly. In August 2004 B and his co-defendants were arrested in Blackburn, Luton and London. The arrests and subsequent charging of the defendants was extensively reported on 17 and 18 August. The defendants appeared at Belmarsh Magistrates' Court on 18 August. Reports of that hearing were also published in the media. The defendants were remanded in custody. There was a hearing on 25 August by way of video link at the Central Criminal Court. Reports of that hearing were again published in different parts of the media. A preliminary hearing took place at the Central Criminal Court on 3 September 2006. As far as we can gather from the papers reports of that hearing were published less widely, but the British Broadcasting Corporation certainly reported them. Butterfield J was invited to act as the trial judge. He was responsible for case-managing the case to trial and is the trial judge.

The indictment contained 23 counts. It was severed for practical management reasons in July 2006. At that stage B was due to be tried first, with his co-defendants' trial to follow. Almost exactly three months after that order, on 12 October 2006 B pleaded guilty to count 1. The count alleged conspiracy to murder. The particulars of offence alleged that between 1 January 2000 and 4 August 2004 B and several identified co-defendants conspired together and with other unidentified persons to commit murder. It was emphasised in the course of his written basis of plea that, in pleading guilty as he did, B was making no admission that he had conspired with any of the other named defendants. The Crown made clear that it did not accept what was accurately (if inelegantly) described as the "non-admission". Nevertheless (lest there be any doubt about it), the Crown did not suggest that B's plea did anything to interfere with the presumption that the remaining co-defendants were innocent and would remain innocent until proved guilty.

The hearing on 12 October turned to the issue of publication and publicity: How much of the proceedings involving B either on that day, or at any later date, should be subject to reporting restrictions designed to protect the integrity of the trial of the co-defendants? The judge accepted a submission on B's behalf, supported by the Crown, that, B having pleaded guilty, he should be sentenced as soon as possible and that sentence should not be postponed until the conclusion of the trial of the co-defendants, which would undoubtedly have been the more normal practice.

That decision cannot be, and has not been, impugned. It is suggested that if it had not been made, the issue which arises now would not have arisen. That is the fact, but it does not advance the argument. Its impact is that the sentencing decision was fixed for 1 November and, although it may be postponed for a few days yet, it will take place in the immediate future. That process will involve three interlinked but distinct features. The Crown will open the case against B and set out the facts against him in the familiar way. Counsel for B will then present his submissions in mitigation. Having reflected on all the material, the judge will then pass sentence. He will explain the basis for his sentencing decision in reasoned observations, capable of being understood by B himself and the public at large. All this will now happen before the start of the trial of the co-defendants.

On 12 October it was thought that the trial would begin in January 2007. As it happens, Butterfield J was subsequently persuaded (for reasons unconnected with the issues now before us) that the trial should revert back to its original starting date, 17 April 2007. This was the context that it was submitted on behalf of the co-defendants that any reporting in the media of the sentencing hearing should be postponed until after the conclusion of their trial. Butterfield J concluded that there was no substantial risk of prejudice if the fact of and the basis of B's plea were reported following the end of the hearing on 12 October. Inevitably, and with every justification in the present circumstances, those facts and the proceedings themselves (save those with which we are now concerned, that is the order prohibiting publication in relation to the sentencing hearing) attracted a great deal of media interest.

On 17 October Butterfield J said that he had no concerns arising from the way in which the proceedings on 12 October had been reported. On the other hand, we bear in mind that those proceedings did not extend to a detailed opening of the case against B.

In a short, concise judgment on 12 October Butterfield J explained his concern about the risk of substantial prejudice to the trial of the remaining co-defendants if his sentencing remarks and the proceedings which culminated in his sentencing decision were to be reported. He explained that B would be the first Muslim to be sentenced in the United Kingdom for terrorist crime involving plans to commit mass murder of innocent civilians. As part of a very well understood obligation, now enshrined in statute, he would have to explain the reasons for his sentencing decision. As he correctly noted, none of those observations could provide evidence admissible against any co-defendant. He also recognised that both the sentence and his reasons for it, whatever they were and however expressed, would be likely to be productive of a huge amount of legitimate public discussion and debate -- a debate that might well continue for some time -- and, depending on future events, might revive from time to time. That consideration provided the critical factor in his decision.

As we have emphasised, the judge was plainly familiar with all the essential facts of the case. He recorded in his judgment that the activities of B were "central" to the subsequent trial. However (and this is not without significance to our decision), it was not in dispute that B's conviction will be admissible as evidence at the forthcoming trial in support of the Crown's case. It is also not in dispute that the evidence relied on by the Crown against B (although not any judicial comment by the sentencing judge on them) but including his perceived role and detailed evidence of his activities would also be admissible.

The judge examined a number of different possibilities, including whether it might be possible to allow the actual sentence to be reported, but without his sentencing remarks, or to allow the sentence and the Crown's opening of the facts to be reported without them. He concluded that that would be unrealistic. Accordingly, he made the order which is the subject of this appeal.

On 17 October the judge was invited to revisit the order. It was suggested that as the starting date for the trial had been postponed from January until April, the delay would work as the "fade factor". In fairness to the careful explanation given by the judge for maintaining his decision, we should recite it in full:

The following day, because of some perceived uncertainty about the effect of his ruling, the judge provided an addendum to it. He said:

The papers before us included references to a very large number of authorities, both within this jurisdiction and from the European Court of Human Rights. The authorities from both sides have taken full account of each defendant's Convention rights and the right to freedom of expression. But the reality is that we are here in familiar, if never easy, territory. Fundamental principles are engaged. First, in this country every defendant who appears before the court to stand his trial, whatever the charge, whoever he or she may be, is entitled to, and must receive, a fair trial. That was, in the memorable epithet of Lord Bingham of Cornhill, a "birthright". Although the epithet is relatively recent, the concept is of some antiquity.

An equally precious principle, hallowed by custom and the tradition of the common law, is the freedom of the media to act as the eyes and ears of the pubic at large and, among their other responsibilities, to observe and contemporaneously to report the criminal proceedings involving the same defendant whose birthright to a fair trial must be protected. The administration of criminal justice must be open and transparent. The freedom of the press to report the proceedings provides one of the essential safeguards against closed justice.

The question here is whether the operation of this principle creates a risk of substantial prejudice to the fairness of the trial of B's co-defendants if reporting this stage of the proceedings (that is the sentencing of B) is not prevented altogether, but postponed. That is the issue which we must address, acknowledging, as we do, that the "primacy" of the fair trial is the crucial feature. We take that word from the speech of Lord Hope of Craighead in Montgomery v Her Majesty's Advocate [2003] 1 AC 641.

The broad criticism of the judge's decision, developed by Mr Nicol, can be briefly summarised. The judge did not find that a proper report of the prosecution opening of the case would create any of the risks of prejudice with which this jurisdiction is concerned. The decision, and the essential basis for it, was that the case as a whole, including the level of sentence and the reasons for it, would inevitably generate huge, justifiable comment and possibly controversy. It was publicity of this kind which, according to the judge's conclusion, created the risk which justified the order which he made. Mr Nicol submits that that is not a sufficient basis for the order, which in any event was wrongly made on the facts as they are known.

Section 1 of the Contempt of Court Act 1981 provides:

Mr Nicol drew our attention to a passage in Ex parte The Telegraph Group, in which Longmore LJ brought together a number of threads to be derived from the authorities. He suggested that there were possible sources of confusion which could be avoided if applications to restrict media coverage of court proceedings were approached as follows:

However, Mr Friedman argued before us that section 4(2) of the Contempt of Court Act was not confined to prejudice arising from contemporaneous fair and accurate reporting of court proceedings. He suggested that section 4(2) went to protect against a risk of what was vividly described as "parasitic damage" arising from fair and accurate reporting. Our attention was drawn to Scarsbrook or Galbraith v Her Majesty's Advocate from the Appeal Court, High Court of Justiciary in Scotland (7.9.2000), in a judgment given by the Lord Justice General. After considering the statutory provisions, the Lord Justice General observed:

We should make plain that, quite apart from the effect of Scarsbrook, which we adopt, the responsibility for avoiding the publication of material which may prejudice the outcome of a trial rests fairly and squarely on those responsible for the publication. In our view, broadcasting authorities and newspaper editors should be trusted to fulfil their responsibilities accurately to inform the public of court proceedings, and to exercise sensible judgment about the publication of comment which may interfere with the administration of justice. They have access to the best legal advice; they have their own personal judgments to make. The risk of being in contempt of court for damaging the interests of justice is not one which any responsible editor would wish to take. In itself that is an important safeguard, and it should not be overlooked simply because there are occasions when there is widespread and ill-judged publicity in some parts of the media.

We shall examine whether a fair and accurate report would be prejudicial if published at this stage. We must do justice to the submissions made on behalf of all the respondents, but we will narrate the submissions made to us by Mr Rees QC, who called into mind the public interest and the prejudice identified by the judge. Mr Rees suggested that there would be a high level of extensive reporting, and eventually, extraneous comment on the case. He suggested (and this was the position of counsel for all the respondents) that there was genuine ground for fearing that the sort of widespread comment which had occurred in previous cases would be transposed to this one. He reminded us, too, of the publicity that was given when the defendants were arrested back in the summer of 2004. It was suggested that the public interest in this case would at this stage be satisfied by the judge's decision to allow the Crown's comments to him when the plea was tendered and the basis of plea put forward to be reported. They were fully reported. That was sufficient.

We were invited to consider the consequences, if the appeal was allowed, that the fairness of the trial could not be protected. The comment could cross the proper boundary; it could be disastrous to the fairness of the trial. Therefore, as the future is still unsure, it is much better to deal with the matter now by supporting the judge's order. Anything different would create a difficulty for an as yet unchosen jury, all of whom (it was suggested) were potential victims of the charge which the co-defendants faced, if the Crown's case was right, and the jury would have great difficulty putting out of their minds the material which would derive from the publicity. That is an important submission which we shall address in a moment in the context of the jury's performance of its own duties. In effect, therefore, although the trial judge would give directions to the jury, those directions would not address the risk of unfairness and alleviate the dangers that the trial would have been prejudiced beyond rescue.

As we have already said, the entitlement to a fair trial has primacy above all other considerations. Montgomery v Her Majesty's Advocate was a case in which the court looked backwards, rather than forwards, at a very high level of publicity. Lord Hope identified the common law test where pre-trial publicity is relied upon in support of a plea of oppression. It was whether the risk of prejudice was so grave that no direction by the trial judge, however careful, could reasonably be expected to remove it. He then addressed the jurisprudence at Strasbourg, reinforced by the jurisprudence in the Supreme Court at Canada, the High Court of Australia and the High Court in Ireland, and commented at page 673G:

The submissions on behalf of the respondents are based on what we accept will be the generation of huge public interest in the case and in the reporting of Mr Lawson's opening of the Crown's case, the judge's sentencing remarks and the sentence itself. That will be of true and genuine public interest, not gawping regard of a prurient nature.

A week ago today, in a different constitution over which I presided, this court considered a point arising from pre-trial publicity. For reasons connected with that case we ordered that there should be no report of the judgment until the conclusion of the trial. However, what I said then is something with which my colleagues in this case also agree. As it has no bearing on the decision where the prohibition was imposed, we adopt what was said then as apposite to this case too.

There is a feature of our trial system which is sometimes overlooked or taken for granted. The collective experience of this constitution as well as the previous constitution of the court, both when we were in practice at the Bar and judicially, has demonstrated to us time and time again, that juries up and down the country have a passionate and profound belief in, and a commitment to, the right of a defendant to be given a fair trial. They know that it is integral to their responsibility. It is, when all is said and done, their birthright; it is shared by each one of them with the defendant. They guard it faithfully. The integrity of the jury is an essential feature of our trial process. Juries follow the directions which the judge will give them to focus exclusively on the evidence and to ignore anything they may have heard or read out of court. No doubt in this case Butterfield J will give appropriate directions, tailor-made to the individual facts in the light of any trial post the sentencing hearing, after hearing submissions from counsel for the defendants. We cannot too strongly emphasise that the jury will follow them, not only because they will loyally abide by the directions of law which they will be given by the judge, but also because the directions themselves will appeal directly to their own instinctive and fundamental belief in the need for the trial process to be fair.

In this case there are at least two safeguards against the risks to which our attention has been directed. There is the responsibility of the media to avoid inappropriate comment which may interfere with the due administration of justice in this case and there is the entire trial process, including the integrity of the jury itself.

In those circumstances and for those reasons this appeal will be allowed.