Yam, R (n the Application f) v Central Criminal Court & Anor

On 16 January 2009 the claimant was tried by a jury and convicted of murder and associated counts of fraudulent misuse of the deceased’s identity and bank accounts. His conviction for murder depended on the jury being sure that he was the thief. His defence, in very summary terms, was that his admitted involvement in handling cheques and credit cards belonging to the victim was as a result of gangsters whom he had come to know handing them to him. He gave names and descriptions of the gangsters. He said that he had played along with them in order to assemble evidence with the intention of later reporting on them.

Ouseley J, the trial judge, directed that part of the proceedings should be conducted in camera. This included the defence case and the Crown’s response to it. The public and press were, however, free to attend the prosecution case and the summing up, except those portions relating to the defence case. Ouseley J was satisfied that his direction would not jeopardise the claimant’s right to a fair trial. He said that without such an order there was “a very real possibility” that there would be no trial at all. His order was unsuccessfully appealed to the Court of Appeal Criminal Division, prior to the trial starting, at an interlocutory appeal before Lord Phillips, Chief Justice, Silber and Underhill JJ: see [2008] EWCA Crim 269.

Following his conviction he challenged the verdicts on various grounds, including that he had not had a fair trial as a consequence of the judge’s order. The argument was that as a result of the hearings in camera he had been deprived of heightened media coverage and had thereby been denied the possibility that new witnesses might come forward to give evidence in support of his case. They might have been able to confirm the gangster characteristics of those whom he alleged had given him the victim’s cheques and credit cards, and to attest to his good character. The Court of Appeal Criminal Division (Hughes VP, Saunders and Thirlwell JJ) rejected the submission as unarguable, not least because information about the alleged gangsters had in fact been put to several Crown witnesses in open court: see [2010] EWCA 2072.

At the original criminal trial Mr Justice Ouseley had made an order to protect the sensitive information heard in camera. That order was expressly continued by the CACD following the rejection of the claimant’s appeal against conviction. The essential part of the order is in the following terms:

“IT IS ORDERED UNDER SECTION 11 of the CONTEMPT OF COURT ACT 1981 & all other powers enabling that the court having ordered that the press and public are to be excluded from part of these proceedings for the due administration of justice, no report is to be published revealing the grounds or reasons for the making of the order or any evidence, submissions, judicial decisions or other matter heard or dealt with in camera, other than that which has been said in public in these proceedings.”

In September 2013 the claimant applied to Ouseley J to vary the order because he wished to deploy some of the sensitive information in an application made to the European Court of Human Rights at Strasbourg. He wishes before that court to renew his submission that he did not have a fair trial under Article 6 of the Convention because of the decision to hold part of the trial in camera. The claimant contended that the original order was ambiguous but since he did not wish to risk being in breach of the order, he sought clarification that he would not be in breach if he disclosed some of the in camera material in his application to Strasbourg. Ouseley J dismissed the application and indeed specifically clarified the order to make it plain that the sensitive material could not be used. The following was added to the original text:

“For the avoidance of doubt, no document or other communication in whatever form shall disclose any of the material to which the prohibition in the preceding sentence applies, or make it available, to anyone who was or would have been excluded from the “in camera” parts of the trial, including the staff and members of the European Court of Human Rights .…”

In reaching that conclusion the judge had before him not only the transcripts from the trial but also a closed schedule to an open PII certificate in which the Secretary of State provided current reasons why it was necessary in the public interest not to permit the in camera material to be divulged even to the Strasbourg court. We were told by counsel for the claimant that although he knew of the existence of the closed schedule, he did not know what it said. The judge mistakenly thought that he had seen it.

The judge was influenced in reaching his decision by the fact that in his view the substantive case, which had already been rejected three times in the UK courts, would inevitably fail. The judge also considered the possibility that the Strasbourg court would co-operate to use its procedural powers to safeguard the security of the material in much the same way as the domestic court can do, but he concluded that the public interest could not be adequately protected even were Strasbourg to agree to adopt such procedures. He said this:

“I acknowledge that the court should not stand in the way of what an applicant wishes to place before Strasbourg, unless there is very good reason to do so. I have no doubt that there are very good reasons to do so in this case. These are sufficient to prevent any question of judicial comity requiring this Court to vary the order.”

There was a dispute between the parties as to whether we should see the closed material or the confidential schedule when determining this appeal. We did not do so, and have been able to resolve the issues before us without needing have regard to it.

The claimant submits that Ouseley J made various errors of law in reaching the conclusion he did. The arguments advanced before us in large part reflect those which did not find favour before the judge.

The submissions advanced by the claimant fall under three broad headings. First, it is submitted that the order made by the judge is in breach of the claimant’s fundamental right of access to the courts. Second, it places the UK in breach of its international law obligations, and Ouseley J ought to have exercised his discretion to amend the original order so as to secure compliance with those obligations. Finally, the order was made under section 11 of the Contempt of Court Act 1981 which prohibits certain publications, and it is said that the conduct prohibited in this case would not amount to a publication within the meaning of that section.

There is a preliminary issue as to whether the Divisional Court had jurisdiction to hear this matter. The issue was raised by Mitting J who would have given permission for judicial review save for this point. Hence he directed that there should be a rolled up hearing where we dealt with the issue of jurisdiction and thereafter, if satisfied that there was jurisdiction, there would be a rolled up hearing to consider both permission and the substantive case. Section 29(3) of the Senior Courts Act 1981 provides as follows:

“In relation to the jurisdiction of the Crown Court, other than its jurisdiction on matters relating to trial on indictment, the High Court shall have all such jurisdiction to make mandatory, prohibiting or quashing orders as a High Court possesses in relation to the jurisdiction of an inferior court.”

The parties and Ouseley J all agreed that the Divisional Court did have jurisdiction because the issue was not with respect to a matter “relating to trial on indictment”.

Notwithstanding the agreement of the parties, we have to satisfy ourselves that we have jurisdiction. We have had regard to a number of cases, including R v Manchester Crown Court ex parte DPP [1993] 1 WLR 1524, Rv Manchester Crown Court ex parte H [2001] WLR 760, and R (Y) vAylesbury Crown Court [2012] EWHC 1140 (Admin). In the Aylesbury case Hooper LJ considered it now to be clear that a court had jurisdiction to entertain an application for judicial review of a judge’s order which imposed restrictions on reporting. We agree. As Ouseley J noted:

“the application may be said to arise out of a trial on indictment but it is not a matter relating to trial on indictment since the trial has concluded.”

In the circumstances we think that it is right to grant permission, as Mitting J would have done once jurisdiction had been determined in the claimant’s favour. We now turn to the legal grounds of challenge.

The claimant identified a number of authorities which have emphasised the fundamental nature of the right of access to a court: see e.g. Arthur JS Ball &Co v Simons [2002] 1 AC 615, page 710 where Lord Hope noted that the right is protected by Article 6 of the Convention. He cited the observations of the Strasbourg Court in Golder v United Kingdom [1975] 1 EHRR 524, para 35, where the court said:

“The principle whereby a civil claim must be capable of being submitted to a judge ranks as one of the ‘universally recognised’ fundamental principles of law.”

In similar terms in Ahmed v HM Treasury [2010] UKSC 2, [2010] AC 534, para 146, Lord Phillips noted that “access to a court to protect one’s rights is the foundation of the rule of law”.

Ms Brimelow QC submits that the right must apply just as much to the right to petition the Strasbourg Court as it does to any domestic court. The Convention provides important safeguards to individuals and it would be absurd to allow a state to deny a right of access to the very court which plays a central role in making those rights effective. An appeal court should be entitled to see precisely the same material as the lower court, as Lord Neuberger noted in Bank Mellat v HM Treasury [2013] UKSC 38 para 35, and the Strasbourg court was in an analogous position to the domestic court.

The Attorney General submits that this is too simplistic an analysis. The right of access to a supra-national court is not a fundamental common law right. The nature and scope of the procedures applicable to applications before the European Court of Human Rights are solely a matter of treaty obligation. The relevant articles and rules of the European Court of Human Rights form no part of domestic law and that includes the right of individual petition. That is something which is conceded by the UK but if the Government seeks to frustrate that right the remedy lies only on the international plain. Section 2(1) of the Human Rights Act gives effect to Article 6, but only in the context of proceedings brought before domestic courts.

Ouseley J accepted that submission, and so do I. The UK Government could, so far as domestic law is concerned, withdraw from the Convention and remove the right of individuals to petition the Strasbourg Court entirely. But that would not mean that the actions of government would be beyond judicial control. It cannot be the case that the courts would be helpless in the face of arbitrary, irrational or discriminatory conduct which sought to deny access to the court to particular individuals without good reason. But that is not because the right is a fundamental right. Like other executive powers, any attempt to limit access to the court would have to be exercised in accordance with the principles of administrative law.

However, the significance of claiming that the right of access has the status of a fundamental right lies in the next stage of the claimant’s argument. The claimant accepts that even assuming that the right can be described as a fundamental one, it is not an absolute one. However, Ms Brimelow QC, counsel for the claimant, submits that the authorities show that “the right to unimpeded access to the courts can only be taken away by express enactment”: Raymond v Honey [1983] 1 AC 1, page 14, per Lord Bridge. That approach was followed in Leech v Deputy Governor of Parkhurst Prison [1988] AC 533, see 577, per Lord Oliver; and in the Ahmed case Lord Phillips, at para 157, accepted that it was always open to Parliament to limit fundamental rights (though it would be subject to a declaration of incompatibility if the limits were not in accordance with the Convention).

The claimant contends that the problem for Ouseley J was that no express limitation has been enacted. Parliament has not sought to limit the right of access to the Strasbourg Court and it is not for the domestic courts to imply any such limitation.

It is important to understand the consequences of this argument. Ms Brimelow accepts that the logic is that however grave the risk to national security, and even though lives may be at stake, still the court could not seek to give priority to national security over the fundamental right of access because it lacks Parliamentary authority to do so. There can be no balancing exercise to carry out. Moreover, she accepts that it cannot be for the domestic court to direct the European Court as to whether and to what extent it must adopt procedural safeguards to secure the confidentiality of material provided to that court. If the Strasbourg court was unwilling to adopt safeguards to protect the confidentiality of the material, there was nothing whatsoever that the government could do to prevent it.

I cannot accept that this is the state of the law. I agree with Mr Eadie QC, counsel for the Attorney General, that even if the right of access could properly be described as a fundamental right nonetheless it is inconceivable that it could be treated as an absolute right which would trump other equally important fundamental rights. The domestic authorities relied upon were not concerned with a potential clash of fundamental rights.

In my judgment, it must be open to the court in an appropriate case to conclude that the public interest, such as ensuring national security and possibly the right to life itself, will be so undermined by making confidential material available to third parties, that the court can order that there should be no communication of such material.

That is not to say that the Government can simply assert that in its view priority should be given to national security and thereby draw a veil over the issue. It is ultimately for the court to balance the conflicting interests and to determine whether or not the interference is proportionate. In this case Ouseley J has concluded that it is in the light of all the material, including the closed schedule.

I have so far assumed that it is an accurate characterisation of the claimant’s position that he cannot pursue his claim before Strasbourg without the material sought. Again, I agree with the Attorney General that this is not the case. There are two relevant articles which relate to this question, Articles 34 and 38. They are as follows:

“Article 34 – Individual applications

The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.

Article 38 – Examination of the case

The Court shall examine the case together with the representatives of the parties and, if need be, undertake an investigation, for the effective conduct of which the High Contracting Parties concerned shall furnish all necessary facilities.”

As the court has pointed out on a number of occasions, the procedural obligation under Article 38 is the corollary of the undertaking not to hinder an effective right in Article 34. The effective exercise of the latter may be thwarted by a refusal to comply with an article 38 request: see Janowiec v Russia (2014) 58 EHRR 30, para 209.

The claimant can and has lodged a claim with the court pursuant to article 34. He can and has expressed the view to the Strasbourg Court that he is prevented from presenting it effectively and in the way he would wish because of Ouseley J’s ruling. The Strasbourg court is seized of that question. It is in a position to consider whether the order made by Ouseley J is in principle compatible with Convention principles or not, and to that end it has the power under Article 38 to require the UK to provide the information which the applicant seeks.

Mr Eadie submits that it is by no means obvious that Strasbourg would consider that the order does infringe Convention principles. The cases demonstrate that the court has shown a marked reluctance to question the assessment by a domestic court that interests of national security should outweigh the unrestricted right of the claimant to conduct legal proceedings as he or she would wish. Where there is evidence that the domestic courts have carefully considered and weighed the conflicting interests and not simply rubber stamped the ruling of the executive, the Strasbourg Court has recognised that it is not in a good position to assess the strength of the security requirements and it will of necessity pay due deference to the domestic court’s assessment of that matter.

Two authorities in particular were relied upon. In Janowiec the case arose out of the massacre at the behest of the Soviet authorities of Polish prisoners of war in the Katyn Forest in 1940. A criminal investigation opened in 1990. The applicants were relatives of some of the deceased who were denied documents from the Russian state on the grounds that they were secret classified documents. Following a complaint to the Strasbourg court, the court requested a copy of a decision of the Russian Supreme Court which had been concealed from the applicants, but this was refused on the grounds of its top secret classification according to domestic law. The court unanimously held that there was a breach of Article 38. It expressed the general principles as follows:

“The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted under Article 34 of the Convention that States should furnish all necessary facilities to make possible a proper and effective examination of applications. This obligation requires the Contracting States to furnish all necessary facilities to the Court, whether it is conducting a fact-finding investigation or performing its general duties as regards the examination of applications. A failure on a Government’s part to submit such information which is in their hands without a satisfactory explanation may not only give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations, but may also reflect negatively on the level of compliance by a respondent State with its obligations under Article 38 of the Convention (see Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 253-254, ECHR 2004-III; Timurtaş v. Turkey, no. 23531/94, §§ 66 and 70, ECHR 2000-VI; andTanrıkulu v. Turkey [GC], no. 23763/94, § 70, ECHR 1999-IV.”

The court then observed that the Russian Government had previously failed to comply without explanation with the requirements of Article 38, refusing to submit documents that had been requested and then continued:

“205.

In cases where the Government advanced confidentiality or security considerations as the reason for their failure to produce the material requested, the Court had to satisfy itself that there existed reasonable and solid grounds for treating the documents in question as secret or confidential ….”

This case shows that whilst the court will not simply accept an assertion by the state that state security justified a refusal to respond to an Article 38 request, even where that is how the material is categorised under domestic law, the court does not insist on full disclosure in all cases. The refusal to accede to a request will not constitute a breach of Article 38 if the court is satisfied that there are “reasonable and solid grounds” for treating the material as secret or confidential and if the adoption of less intrusive safeguards, such as redacting parts of the documents in issue or having a hearing in camera, is not a satisfactory solution.

More recently, in Al Nashiri v Poland [2014] ECHR 833, para 365 the court made further similar observations about the way it will approach issues of national security and confidentiality:

“The judgment by the national authorities in any particular case that national security considerations are involved is one which the Court is not well equipped to challenge. Nevertheless, in cases where the Government have advanced confidentiality or security considerations as the reason for their failure to produce the material requested, the Court has had to satisfy itself that there were reasonable and solid grounds for treating the documents in question as secret or confidential. Where such legitimate concerns exist, the Court may consider it necessary to require that the respondent Government edit out the sensitive passages or supply a summary of the relevant factual grounds (see, among other examples, Nolan and K. v. Russia, no. 2512/04, § 56, 12 February 2009 and Janowiec and Others, cited above, §§ 205-206).

The judgment by the national authorities in any particular case that national security considerations are involved is one which the Court is not well equipped to challenge. Nevertheless, in cases where the Government have advanced confidentiality or security considerations as the reason for their failure to produce the material requested, the Court has had to satisfy itself that there were reasonable and solid grounds for treating the documents in question as secret or confidential. Where such legitimate concerns exist, the Court may consider it necessary to require that the respondent Government edit out the sensitive passages or supply a summary of the relevant factual grounds (see, among other examples, Nolan and K. v. Russia, no. 2512/04, § 56, 12 February 2009 and Janowiec and Others, cited above, §§ 205-206).

The judgment by the national authorities in any particular case that national security considerations are involved is one which the Court is not well equipped to challenge. Nevertheless, in cases where the Government have advanced confidentiality or security considerations as the reason for their failure to produce the material requested, the Court has had to satisfy itself that there were reasonable and solid grounds for treating the documents in question as secret or confidential. Where such legitimate concerns exist, the Court may consider it necessary to require that the respondent Government edit out the sensitive passages or supply a summary of the relevant factual grounds (see, among other examples, Nolan and K. v. Russia, no. 2512/04, § 56, 12 February 2009 and Janowiec and Others, cited above, §§ 205-206).

Furthermore, such concerns may, depending on the document, be accommodated in the Court’s proceedings by means of appropriate procedural arrangements, including by restricting access to the document in question under Rule 33 of the Rules of Court, by classifying all or some of the documents in the case file as confidential vis-à-vis the public and, in extremis, by holding a hearing behind closed doors (see Janowiec and Others, cited above, §§ 45 and 215, and Shamayev and Others, cited above, §§ 15-16 and 21).”

I do not say that the Strasbourg Court would be bound to conclude that the order of Ouseley J would be in compliance with the Convention. This court has not seen the material and is not in a position to express a view one way or the other. Moreover, I accept that there is potentially a material difference between seeking to balance conflicting interests by taking part of the case in camera on the one hand, and seeking to strike that balance by denying a claimant a right to present some material to the court at all on the other. The fact that the domestic courts have on three occasions considered that a fair trial was carried out with the proper reconciliation of conflicting interests does not mean that the Strasbourg Court would necessarily reach the same conclusion with respect to the potentially greater interference with the claimant’s right which this order involves. But whatever view the Strasbourg court may take, I have no doubt at all that it is not for this court to seek to determine the question. It is a matter for the Strasbourg Court in the light of the application of its own principles.

There is a further reason why this court should not usurp the determination of the Strasbourg Court. Ultimately the executive has to act in accordance with a ruling of the domestic courts, unless that ruling is overturned on appeal or the ruling can be reversed by statute. But that is not so with an international court. The UK Government can always put national interests first and refuse to comply with any directions of the Strasbourg Court. It will be in breach of its international obligation if it refuses to give effect to an Article 38 ruling and will have to take the consequences; but it may choose to take that line rather than jeopardise what it perceives to be an overriding national interest. So even if it were plain that the Government were acting in breach of international law, it would still not in my view be for the domestic courts to say so.

The distinct but related argument advanced was that in exercising discretions the court is obliged to ensure that the Government acts compatibly with its international obligations and not in breach of them. As I have said, it is far from certain that the order of Ouseley J does constitute a breach of any obligation relating to the Strasbourg procedures. But even assuming in the claimant’s favour that it does, I do not accept that the court is obliged to exercise a discretion in that way.

The House of Lords had to consider a similar argument in R v Home Secretary ex parte Brind [1991] 1 AC 696. In that case the question was whether a discretion conferred upon the Secretary of State had to be exercised in accordance with the European Convention on Human Rights, and in particular Article 10, which had not at that time been incorporated into English law. Lord Bridge explained why it would be inappropriate to adopt this principle in relation to the exercise of discretions (p.747 H to 748F):

“It is accepted, of course, by the appellants that, like any other treaty obligations which have not been embodied in the law by statute, the Convention is not part of the domestic law, that the courts accordingly have no power to enforce Convention rights directly and that, if domestic legislation conflicts with the Convention, the courts must nevertheless enforce it. But it is well settled that, in construing any provision in domestic legislation which is ambiguous in the sense that it is capable of a meaning which either conforms to or conflicts with the Convention, the courts will presume that Parliament intended to legislate in conformity with the Convention, not in conflict with it. Hence, it is submitted, when a statute confers upon an administrative authority a discretion capable of being exercised in a way which infringes any basic human right protected by the Convention, it may similarly be presumed that the legislative intention was that the discretion should be exercised within the limitations which the Convention imposes. I confess that I found considerable persuasive force in this submission. But in the end I have been convinced that the logic of it is flawed. When confronted with a simple choice between two possible interpretations of some specific statutory provision, the presumption whereby the courts prefer that which avoids conflict between our domestic legislation and our international treaty obligations is a mere canon of construction
which involves no importation of international law into the
domestic field. But where Parliament has conferred on the
executive an administrative discretion without indicating the
precise limits within which it must be exercised, to presume that it must be exercised within Convention limits would be to go far beyond the resolution of an ambiguity. It would be to impute to Parliament an intention not only that the executive should exercise the discretion in conformity with the Convention, but also that the domestic courts should enforce that conformity by the importation into domestic administrative law of the text of the Convention and the jurisprudence of the European Court of Human Rights in the interpretation and application of it. If such a presumption is to apply to the statutory discretion exercised by the Secretary of State under section 29(3) of the Act of 1981 in the instant case, it must also apply to any other statutory discretion exercised by the executive which is capable of involving an infringement of
Convention rights. When Parliament has been content for so long to leave those who complain that their Convention rights have been infringed to seek their remedy in Strasbourg, it would be surprising suddenly to find that the judiciary had, without Parliament's aid, the means to incorporate the Convention into such an important area of domestic law and I cannot escape the conclusion that this would be a judicial usurpation of the legislative function.”

Brind was of course before the Convention had been given effect in domestic law by the Human Rights Act. But the principle continues to apply where the domestic law cannot be relied upon.

It does not follow, however, that the Convention is entirely irrelevant. In Rantzen v Mirror Group [1994] QB 670 at 691 Neill LJ considered the potential relevance of Article 10 ECHR to the domestic law of defamation, again before the incorporation of the Convention into domestic law. After citing the principle enunciated in Brind that the provision may be used to resolve an ambiguity, he added:

“It is also clear that Article 10 may be used when the court is contemplating how a discretion is to be exercised. Thus, in Attorney-General v Guardian Newspapers Limited [1987] 1 WLR 1248, 1296, Lord Templeman referred to Article 10 when considering whether the interference with the freedom of expression which the grant of an interlocutory injunction would entail was “necessary in a democratic society” for any of the purposes specified in paragraph 2 of Article 10.”

There was nothing in the approach of Ouseley J which was inconsistent with the principle that one may have regard to international obligations. He did take into account the nature of the right to petition the Strasbourg Court in the exercise of his discretion.

For these reasons, which essentially reflect those of Ouseley J, I would reject the first two related grounds.

Section 11 of the Contempt of Court Act is as follows:

“In any case where a court (having power to do so) allows a name or other matter to be withheld from the public in proceedings before the court, the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purpose for which it was so withheld.”

In Re Guardian News and Media Ltd. [2010] 2 AC 697, para 31, Lord Rodger described the purpose of the section as follows:

“…. Collins J appears to have thought that section 11 of the Contempt of Court Act 1981 was the source of the power to make anonymity orders that is in play in these cases. That view was mistaken. Section 11 is dealing with the particular situation where a court, having power to do so, allows a name or other matter to be withheld from the public in proceedings before the court. An obvious example is a court allowing the victim to withhold his name when giving evidence for the Crown in a prosecution for blackmail. Section 11 then gives the court the ancillary power to give directions prohibiting a newspaper which actually knows the name of the individual from publishing it. The section resolves any doubt about the power of the court in these circumstances to prevent persons, other than the parties, from naming the individual or mentioning the matter outside court. Cf Ex p P, The Times 31 March 1998, per Sir Christopher Staughton.”

The statute therefore simply removes any uncertainty as to the power at common law to make an order of this kind.

The claimant accepts that Ouseley J had the power to hold part of the hearing in camera. Nonetheless he denies that section 11 conferred on the judge the power to do what he did. The argument turns on the meaning of “publication” in the 1981 Act. By section 19 this has the meaning assigned by section 2(1) which is as follows:

“The strict liability rule applies only in relation to publications, and for this purpose “publication” includes any speech, writing, or other communication in whatever form, which is addressed to the public at large or any section of the public.”

The strict liability rule is in turn concerned only with contempts tending to interfere with the course of justice.

The claimant submits that a publication to the staff members of the Strasbourg Court is not properly to be described as a publication to the public or a section of the public. He submits, citing a paragraph from a leading text on the subject, Arlidge, Eady and Smith on Contempt, 4^th edn. paras 4-54, that a distinction needs to be drawn between a public and a private communication, and this would be the latter. Moreover, it is relevant to consider the context of the communication and the way in which it is controlled. The claimant has indicated a willingness to co-operate in ensuring that special measures are put in place by the Strasbourg Court to ensure the security of sensitive material and there is every reason to suppose that the court would agree to this, even although they cannot be compelled to do so. Applying this approach, the only proper inference is that the lodging of a claim which includes the sensitive material is not a publication within the meaning of section 2(1).

Ouseley J disagreed; he expressed his reasoning as follows (paras 75-76):

“… I can see the argument that an application to the ECtHR, while clearly a communication in some form, may not be one addressed to “any section of the public”. However, once the addressee falls outside the scope of those entitled to receive the information, they are for these purposes a section of the public. The exclusion did not permit those who had to hear the material in camera to pass it on in private, to a family member or a friend, or to a few acquaintances when no one else was around, who could then pass it on themselves, all in private. S11 does not require information to be imparted in public for the prohibition to bite. The protection which the UK Courts decide such material should have should not then be put at risk through an application to Strasbourg, and the ECtHR cannot have intended that it should do so.

76.

The staff and members of the Strasbourg Court would have been excluded from the trial as part of the public. The ECtHR is not another domestic appellate tier. Its Judges and staff owe no allegiance to the Crown. They do not apply UK domestic law. The various protected interests cannot be explained to it without risk of harm to those interests. It may take a different view of what is justified in the national interest, applying different tests and balancing the interests differently. It has no power to commit people for contempt of court in support of any orders it may make. The UK has no such power either in law or practice. The right to make the application has not been inhibited. The Strasbourg Court is simply not in the same position as the UK Court when it comes to the approach to such material, any balancing of interests in respect of it, its protection, and the enforcement of such protection as it orders.”

Mr Eadie supports this analysis.

In essence the reasoning of Ouseley J is that the concept of “the public or a section of the public” must take its meaning from the purpose for which the order has been made. Where it is to protect an important matter of state security, the purpose would be wholly defeated if the communication were made even to just a single person. The section must therefore be interpreted so as to treat a communication to even a single individual as a relevant publication within the meaning of the section.

I have sympathy with that approach and see the force of it, but I confess that I have considerable difficulty with giving the words such an elastic interpretation, however desirable that may be. Moreover, even on the judge’s analysis, I would have thought it highly arguable that the Strasbourg Court would be prima facie entitled to receive the information if that is necessary in order to enable the claimant properly to advance his case, even if the domestic court considered that there were good reasons for requiring the information to be withheld in the particular circumstances. And if Parliament intended that the definition should be read in that very broad way, it used very curious and convoluted language to express that intention. I have difficulty with the notion that a private disclosure to one person can be said to constitute a publication even though I accept that in a case where security interests are at risk it might well frustrate the purpose of section 11 not to interpret it in that way. I suspect that the problem arises because when considering the concept of “publication” the draftsman had principally in mind contempts which involve an interference with the course of justice by improperly influencing the judge or, more significantly, the jury. Hence section 2(1)(a) is in terms defining the concept for that purpose. In that context, if a publication is not at least to a section of the public it is highly unlikely to come to the notice of a judge or jury and thereby interfere with justice. But where the purpose of the order is to protect some other interest, such as the names of blackmailers or national security, more limited communications including entirely private ones may need to be prohibited. The concept of “publication” is inapt; it is not the language of private conversation. But it is the concept used in section 11 and by section 19 it is given precisely the same meaning as for contempts involving an interference with the course of justice.

However, even accepting that there must be a communication to at least a section of the public, I am inclined to think that the court staff and judges in Strasbourg as a body could properly be so described within the meaning of section 11.

But I do not think that it is strictly necessary to determine this difficult issue. The judge’s order made it clear that it was made not only under section 11 “but under all relevant powers”. In my judgment, and in agreement with the judge below, there was in any event a power to make the order both using the inherent jurisdiction of the court and pursuant to section 12 of the Administration of Justice Act 1960.

As to the former, the origin of section 11 is in fact the case of R v Socialist Worker Printers and Publishers Ltd ex parte Attorney General [1975] 1 QB 637. The judge had in that case made an order to protect the names of blackmail victims during the proceedings. He gave no further order formally requiring the media to desist from making the names public. The Leveller magazine published the names during the trial. This was held to be a contempt of court. Lord Widgery CJ observed that the purpose of the order was not to protect the victims, some of whom could not reasonably complain if their names were disclosed, but to promote the public interest in getting blackmailers prosecuted and sentenced. Many victims would not come forward without the protection of an anonymity order.

Lord Widgery held that even although there was no formal direction by the judge, and the original direction did not in terms apply outside the court room, nevertheless the publication was a contempt because it undermined the judge’s direction (p. 650):

“Accordingly with the prima facie case of contempt made out, one has to turn to the argument for the defence and see on what basis that is put forward. Mr. Waterhouse, appearing for Mr. Foot, started with a short point. He said that the order made by the trial judge in this case did not extend to ordering the press not to disclose the names of the two witnesses. That, I think, is absolutely correct, and my reading of the judge's directions is that he was directing what was to happen in his court and was not in express terms dealing with anything which was to happen outside.

But that does not in my view make any difference. The basis of the prima facie case to which I have referred is not that the judge had made an order directly and expressly affecting the conduct of people outside his court. The real vice of this publication can only be judged by imagining a person suffering blackmail, who is trying to screw up his courage to go to the police and do something about it. He sees in the paper that at the Central Criminal Court the judge has allowed Mr. Y and Mr. Z not to give their names but to pass under those descriptions. Our potential complainant of blackmail feels cheered by this and sees the prospect perhaps of his being able to bring his proceedings without disclosure of his circumstances. But then if the next day or a few days after he sees published in the papers the names of Mr. Y and Mr. Z, he would at once realise that the protection which he was hoping for is a myth. He would say to himself “Even the judge cannot protect me. Look at this case. The judge said the names were not to be given and yet they were. Even the judge cannot protect me.” It is that aspect of the matter which is the sting of the allegation against the publication in this case, and it is not affected in my judgment at all by the fact that the order was not in terms an order addressed to the press but was an order concerned with the conduct of the trial. The publication made the directions as to the conduct of the trial meaningless in this regard.”

On this analysis it matters not to whom any publication was made – nor, indeed, that there was no express order prohibiting publication outside the court. Any publication which undermines the direction given in court and would render it meaningless would constitute a contempt.

In my view, the court must have an inherent power to issue an ancillary order or direction whose express object is to secure the purpose of the order made in court. The common law would be seriously deficient if the order made in the proceedings could be wholly undermined because the judge’s writ did not run outside the court room. I would uphold the order on this basis even if it would otherwise fall outside section 11.

In addition, in my judgment, the proposed action would be a contempt under section 12(1)(c )of the Administration of Justice Act 1960 which is as follows:

“The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say —

…

(c)

where the court sits in private for reasons of national security during that part of the proceedings about which the information in question is published.”

I agree with Ouseley J that in the context of this Act, the concept of publication (which is not expressly defined) must extend to any circumstance where the prohibited information is made available to persons who would have been excluded from the court during the in camera proceedings. If that would constitute a contempt, the judge must surely be able to issue an order making the position clear.

It follows therefore that I would dismiss all three grounds.

There is a further matter which the claimant may wish to pursue at a later occasion. He wishes to contend that even if in principle it was open to the judge to make an order interfering with the way in which he wished to present his case, in the particular circumstances of this case the order ought not to have been made. The judge gave disproportionate weight to the national security considerations. The claimant said that he was unable to run this argument because in order to do so his lawyers needed to be able to see the material which had only been disclosed in the closed session, but they were unable to do. The reason is that the Secretary of State has required certain undertakings to be complied with before permitting access to the material. The claimant’s lawyers say that these are unjustified conditions and they have refused to comply; hence there has been a stand-off. We were not asked to resolve this matter and in any event we were not in a position to do so. Moreover, we were asked in the circumstances not to look at the confidential material, and have not done so.

I confess that it is not clear to me from the grounds that this point had been raised. Counsel has undertaken to give careful consideration as to whether in all the circumstances it is still proper to pursue that ground. If it is pursued, there should be a short hearing before the same court if possible.

I would grant permission for judicial review but dismiss the application.

Open justice is an important principle of the common law; and, being normative, it is unsurprisingly reflected in international conventions such as article 6 of the European Convention on Human Rights. However, the principle is not absolute: it must sometimes bow to other rights such as the right to life, or other elements of the public interest such as national security. Indeed, to insist on openness may hinder or prevent rather than further justice, e.g. where the victim of a crime such as blackmail will not come forward and give evidence if his identity (and what he has to say) is not adequately protected by the court. It is uncontroversial that, in exceptional circumstances, the court has an inherent power at common law to make orders allowing information to be withheld from the public, or restricting public access to what otherwise would be a public hearing. That power is confirmed in Notes (w)-(y) to rule 16.1 of the Criminal Procedure Rules 2013.

In this case, Ms Brimelow QC for the claimant rightly accepts that Ouseley J had the power to make the order he did, restricting public access to parts of the hearing before him, on the basis that it was in the public interest described in the PII certificate so to do. Indeed, the need to restrict access to parts of the evidence at the hearing in December 2013 was not in issue before him.

The common law confers a power on the court to make effective and enforceable orders. As my Lord Elias LJ says (see paragraph 55 above), the court’s inherent power thus extends to making ancillary orders and directions to secure the purpose of the substantive order restricting access to information. Where the court makes a clear order restricting access to information about a case, it is a contempt to undermine it. The potential “vice” – or infraction of the rights of other individuals or the public interest – sought to be addressed by the court’s order can only be identified by reference to the facts of the individual case (see R v Socialist Worker Printers and Publishers Ltd ex parte Attorney General [1975] 1 QB 637 at page 650, quoted at paragraph 53 above). Similarly, the ancillary orders and directions that are required to protect the relevant rights and interests depend upon the circumstances of the case. Where the purpose of the restriction is to protect the national interest, clearly that purpose might be frustrated by anything less than an order restricting disclosure of the relevant information to a very limited circle of people who would be entitled to be present in the private hearing; and disclosure beyond that circle – even to a single individual – might compromise the national security interests that the substantive order is seeking to protect.

That is the position at common law. The central question in this case is whether the relevant international law or domestic statutory provisions restrict that power. For the reasons given by Elias LJ, it is my firm view that they do not.

With regard to the domestic provisions, the Administration of Justice Act 1960 does not attempt to define “publication”; and I find it difficult to see how that term as used in section 12(1)(c) (quoted at paragraph 56 above) can sensibly be restricted to publication to the general public or a section of the public, rather than publication to any person outside the limited circle to which I have referred, who would have been allowed in court during the private session; as disclosure to any single individual outside that circle might defeat the entire purpose of the substantive order. In any event, section 12 clearly does not restrict the inherent powers of the court; indeed, it appears to be supportive of those powers by providing that it is a contempt of court to disclose matters from certain identified types of proceedings merely as a consequence of the decision to hear them in private, but making it clear (in section 12(4)) that, in doing so, it does not extend the court’s powers in respect of contempt.

Turning to the definition of “publication” in the Contempt of Court Act 1981, I admit to having some real difficulties, particularly in the context of section 11. One possible answer may be that section 2(1) does not in terms define “publication”, but rather merely confirms that it includes any communication addressed to at least “any section of the public”, thus arguably merely emphasising the breadth of the term as used in the Act rather than imposing a restriction. However, as Elias LJ indicates, as a matter of construction, there is difficulty with the notion of a private disclosure to one individual in this statutory context being a “publication” – I should add that I find his suggestion as to why the difficulty arises compelling – and, as the point I make with regard to the ambit of section 2(1) was not fully argued before us, I would hesitate to say more without some such debate. But, in any event, I am sure that section 11 of the 1981 Act does not exhibit an intention on the part of Parliament to restrict the powers of the court designed to ensure that justice is done. In my view, far clearer words would have been necessary to have had that effect.

Consequently, having granted permission to proceed, for the reasons given by Elias LJ, I too would dismiss the substantive application for judicial review.