MGN Ltd & Ors, RE Application for Leave To Appeal

This is an application by representatives of the media under section 159 of the Criminal Justice Act 1988 for leave to appeal against the order made by His Honour Judge Moss QC sitting at the Central Criminal Court on 20 December 2010 and his decision dated 6 January 2011 confirming that order. The order provides:

The order was made in relation to three trials listed for hearing at the Central Criminal Court, T20107117, T20107126, T20107210, T20107299, in accordance with section 4(2) of the Contempt of Court Act 1981. No other legislative provisions were considered.

The applicants require a three day extension of time. It is not entirely clear why, when Judge Moss considered this issue on 20 December 2010, so many members of the media now participating in this application were apparently unaware of the proceedings and therefore did not apply to participate in them. Whatever the reason, however, the application raises an issue of importance for the purpose of pending trials for murder involving no less than twenty young defendants. The issues merit our attention. We shall therefore extend time and grant leave. We shall deal with both decisions by Judge Moss as if they had been made in a single hearing.

For present purposes we have heard Mr Millar QC on behalf of the media; counsel for the Crown at trial, Mr Heywood QC; and counsel representing the different defendants in each of the three trials, that is the current trial and the two forthcoming trials, who have made submissions of common interest to all the defendants in the respective trials. We have also considered written submissions advanced by one or two of the counsel for the other defendants.

The litigation arises from the prosecution of twenty defendants aged between 15 and 18 years for the murder of Sofyen Belamouadden, a boy born in November 1994, who was aged 15 years at the time of his death. He was killed on 25 March 2010, shortly before 6pm, when he was chased across Terminus Place at the front of Victoria Station in London by a group of young men, some of them visibly armed. At least four of those pursuers peeled away and chased another young man. But Sofyen Belamouadden was chased by a large group. They caught him at the top of the stairs to the District and Circle Line ticket hall of the underground station at Victoria, where he was attacked. He was pushed and fell down a flight of stairs into the ticket hall. While there, for a continuous further period he was attacked, stabbed and slashed with knives, and beaten and kicked.

He sustained nine incised wounds, all of which were of significant severity and depth. His injuries included eight stabbings, a slashing injury and further blunt impact injuries. He suffered cardiac arrest at the scene. Death was certified at hospital later that same evening.

The stark recital of the facts is sufficient to demonstrate why the death of this young man caused, and remains the cause of public concern and legitimate interest. It was, after all, rush-hour at a mainline station in London. A boy of 15 was chased and attacked, and he suffered serious injuries which killed him. This was a very public incident which took place in a very public area.

The case for the prosecution is that the death of this young man was the result of growing and simmering tensions between pupils at a sixth form college in London, at which eighteen of those facing trial were then students, and their associates, and a group of others from a different area of London with which the deceased was connected, as they passed through Victoria Station on their way to and from their places of education.

On the previous day, 24 March, there was an incident at Victoria Station when members of the two groups met and clashed. There was a short fight, the details of which are irrelevant to our decision. After the fight members of the group from the sixth form college are alleged by the prosecution to have communicated with one another via mobile telephones and the Facebook social networking website. The prosecution case is that these communications were not coincidental. They indicated an intention to engage in serious violence.

The twenty defendants are indicted with the same offences: count 1, conspiracy to cause grievous bodily harm; count 2, the murder of Sofyen Belamouadden; and count 3, violent disorder. The charge of murder is based variously on alleged responsibility of one or more defendants as joint principals or as aiders and abettors (for example, as suppliers of weapons or offering encouragement) and/or secondary liability as parties to the wider violent joint enterprise. For case management reasons the trial has been divided so that there will, in fact, be three separate trials. The first trial comprises the defendants whom the Crown allege entered the ticket hall and were present at the time of the fatal attack, save for one further defendant who is alleged to have purchased knives and then involved himself in chasing the second young man. The second trial includes those who entered the ticket hall and some who peeled off from the main attack on the deceased and chased the other young man. The third trial includes defendants who joined in the chase of the deceased, but only one of whom on his own alleged admission can be demonstrated to have entered the ticket hall. However, none of the defendants in the first trial will be defendants in the second or third trials; and none of the defendants in the second trial will be defendants in the third trial. In reality, this is a single trial in which, for case management reasons and the practical organisation of the trial process, the division of trials has had to occur.

Defence statements have been received from the majority of the defendants. Why they have not been received from all of them is a question into which we shall not go, but it is unlikely that any defendant will contend that the use of any degree of violence against the deceased boy was lawful or justified in law.

In summary, therefore, the primary issue in the case of each defendant is whether it can be shown that he or she was party to an unlawful agreement to cause serious harm, and then took part in the events at Victoria Station, which amounted at the very least to a violent disorder, and did so knowing that a range of knives and other dangerous weapons were being taken to the scene and that it was at the very least in contemplation that these potentially lethal weapons might be used with intent to do really serious injury or to kill. It will, of course, ultimately be for the juries to decide whether Sofyen Belamouadden was the victim of murder. On the face of it, however, the more difficult question to be faced by each jury is whether it has been proved as against each individual defendant that he or she was guilty of murder or indeed any other of the alleged offences.

The first trial began on 4 January 2011. The first evidence was called on 13 January. The time estimate is twelve weeks. Consistently with the timetable, the second trial is fixed for 11 April, with an estimate of eight weeks. The third trial is fixed for 13 June, with an estimate of six weeks. In accordance with practice, the prosecution has served its case papers on each of the defendants. The papers include statements from approximately 360 witnesses, of whom a small majority are eyewitnesses of fact. Some of the witnesses are youngsters who attended college with the defendants. In the first trial, something like 55 adult eyewitnesses are fully bound to attend to give evidence, and five of the younger witnesses are similarly bound. It is likely that all five of the young witnesses, and a significant proportion of the other eyewitnesses, will be required to give evidence during either the second or the third, or possibly both the subsequent trials.

The effect of the order made by Judge Moss is a blanket prohibition on any reporting of any aspect of any of the three trials until the conclusion of the third trial. The fact that the prohibition is a blanket one is underlined by the fact that, as a result of the order, not even, for example, the opening of the case by the Crown at the first trial may be the subject of reporting. Judge Moss is a highly respected and experienced judge. It was no doubt for that reason that he was entrusted with a case of such importance and potential complication. It is clear from the transcripts that he perfectly well understands the principles of open justice and the public advantages of fair, contemporaneous reporting of criminal proceedings. His decision was based on his judgment that the interests of a fair trial, and the interests of both the prosecution and the defendants in a fair trial, required the imposition of this wide-ranging reporting restriction. His reasoning is clear. Focusing his attention on section 4(2) of the Contempt of Court Act 1981, he decided that accurate reports of any part of the three trials before the conclusion of the third trial, even if published contemporaneously and in good faith, would create a substantial risk of prejudice to the administration of justice in those proceedings or in any other proceedings, pending or imminent. To avoid that risk, he ordered that publication should be postponed. Unless he was satisfied about that risk, the order could not have been made.

In R v Sherwood, ex parte the Telegraph Group Plc and Others [2001] 1 WLR 1983, commented on with approval in Independent Publishing Co Ltd v Attorney General of Trinidad and Tobago and Another [2004] UKPC 26, [2005] 1 AC 190, it was suggested that any possible confusion in relation to applications under section 4(2) of the 1981 Act could be avoided by a systematic approach to applications to restrict media coverage of court proceedings. The first question is whether the reporting would give rise to a not insubstantial risk of prejudice to the administration of justice. The second question is whether an order under section 4(2) would eliminate that risk. If not, there would be no necessity to impose such a ban. Again, that would be the end of the matter. If, on the other hand, an order would achieve the objective, the court still has to consider whether the risk could satisfactorily be overcome by less restrictive measures. Third, even if there is no other way of eliminating the perceived risk of prejudice, it still does not follow necessarily that an order has to be made. This requires a value judgment. The court highlighted the need for care to avoid confusing the senses in which the word "necessary" is used in the legislation. Adapting Viscount Falkland's famous aphorism, the court's approach should be that, unless it is necessary to impose an order, it is necessary not to impose one; and if it is necessary to impose an order at all, it must go no further than necessary. In summary, an order under section 4(2) of the 1981 Act should be regarded as a last resort.

To reach his conclusion, Judge Moss examined first the question whether fair and accurate reporting of the first trial would create or represent any risk to the integrity of the juries in the second or third trials, in effect prejudicing them in such a way that they might not perform their duty. He decided that any potential problems would be addressed in the usual way by clear and unequivocal directions with which the jury could be expected to comply. We have been asked to reconsider the same point. We acknowledge that this is a very high profile case, that there will be a number of trials arising from the same event, and that it is a case likely to create a considerable emotional response.

All that aside, however, in our judgment the juries in the second and third trials can be trusted to reach an unprejudiced verdict in relation to the alleged involvement in the offences of each and every individual defendant in accordance with the evidence. We maintain a positive view about the robustness of jurors. In In the matter of B [2007] EMLR 5, this court emphasised that

It was after he examined the position of witnesses that Judge Moss satisfied himself that the blanket prohibition on reporting of the proceedings of the first trial was necessary. He had in mind that some of the witnesses were very young; that many of them came from the same places of education as the defendants; and that they would be exposed to the risk of potential hostility if they gave evidence for the prosecution. That would be bad enough in itself, but it would lead to the further risk that any evidence which they gave at the second or third trial would be altered or diminished, or in effect tainted by the unpleasant situation in which these witnesses might find themselves. It was therefore concluded that the effect of reading or studying reports of the proceedings in the media might create pressure on them. If that is the case, then so might pressure be created by others who knew what they had said. As we have indicated, the statements of the witnesses have been served on the defendants. The identity of each and every witness is known to each and every one of the twenty defendants. Their identities certainly are not secret.

Special measures are being taken in court to give the young witnesses the protection to which they are entitled. But however it is examined, notwithstanding any reporting restrictions, the defendants themselves would have not the slightest difficulty in identifying the witness giving evidence and informing the entire community of the fact. Some of the defendants are on bail. Some of them will have families and friends attending the proceedings. None of this can be avoided by the imposition of the order under section 4(2). In effect, it is already too late, and would inevitably be too late, for the processes under section 4(2) to be deployed for the purposes of protecting these witnesses from whatever troubles may be anticipated for having assisted the police or (if they do) for having given evidence at the first trial.

In amplification of the submission we have just considered, it was argued that the reporting of the evidence of witnesses will lead to witnesses modifying their own accounts, not merely because of threats (or concerns about threats) but because if they look at reports of the evidence they may be subject to "memory adjustment", which sometimes occurs quite innocently as time goes by since an incident was witnessed, and further accounts about it emerge and are seen and noted by the witness.

This all presupposes that the witnesses will read all the reports published in the media about the trial, and that the media will publish all the evidence given by all the witnesses. In theory, that is possible, although in reality unlikely. The problem of witnesses giving evidence at trial which is inconsistent with earlier statements, or indeed giving evidence at a second trial, which is different from the evidence they have given at a first trial, is not new. The solution is not always easy and straightforward. But to the extent that evidence is changed or embellished to the disadvantage of any defendant, the witness can be cross-examined on the basis of his or her earlier statements or evidence. The greater concern, in reality, is for the prosecution: that the witnesses will not come up to their original statements or evidence when, unless they are a hostile witness in the sense understood in the criminal justice system, the prosecution cannot cross-examine them. In the result, without minimising the difficulties which may lie ahead when witnesses give evidence about the same matters on a second or third occasion, our focus in the present context is whether the blanket prohibition on fair contemporaneous reporting of the first trial would extinguish or significantly diminish these difficulties. We very much doubt whether they would do so. Indeed, we have reflected on many of the concerns carefully and succinctly expressed on behalf of the defendants and we have come to the conclusion that those concerns and the consequences of reporting in any very high profile case would be common. The issue of how these cases are tried and how they are conducted by counsel on each side exercising their responsibilities is never easy, but there is nothing specific about this case which is different from that of any other high profile case -- at any rate for the purposes of the imposition of a blanket prohibition on reporting under section 4(2) of the 1981 Act.

We must remind ourselves that this section is not concerned with inaccurate or unfair reports of court proceedings, or of observations or comments made anywhere which would constitute contempt of court. Lifting this blanket ban, or part of it, would not suspend the ordinary principles which apply to contempt of court. Those principles are always in place and in allowing the appeal, as we shall, we are not implicitly approving anything other than fair, accurate and contemporaneous reporting of the proceedings as they take place at the Central Criminal Court. As section 4(2) imposes limits on fair and accurate reporting on proceedings, for all the reasons encapsulated in two short words "open justice" -- and surely such an elementary principle requires no citation of authority -- an order is only to be made, as we have already said, when it is necessary for the purposes of ensuring that justice is fairly and properly done in the cases in which an order has been made.

Without minimising the burdens and difficulties faced by witnesses, the use of section 4(2) of the 1981 Act for the purposes of alleviating the difficulties of giving evidence, even if evidence has to be given in more than one trial, is rarely appropriate. Of course, if the conditions for an order under section 4(2) are established in the case of a particular witness or witnesses so that the order is justified in accordance with principle, then the order should be made. But in essence the protection of witnesses is more appropriately secured by statutory measures designed for the purpose, such as section 39 of the Children and Young Persons Act 1933, or sections 23-30 of the Youth Justice and Criminal Evidence Act 1999, or any further legislation designed to enable witnesses to give of their best.

For the reasons set out in this judgment, this appeal must be allowed and the order imposing the blanket prohibition on publication of fair and accurate reporting of the first trial, or the second or the third trial will be quashed. Any applications which may be made in relation to individual aspects of the present trial or the forthcoming trials should be made to Judge Moss, as the trial judge, and he will consider any individual applications in the context of the principles as we have endeavoured to state them in the course of this judgment.