Copyright Notice, Limited Permissions, and Disclaimers
Chapter 11: General Matters at the Inquest
The material formerly found here is now contained in the first supplement to Jervis, published by Sweet & Maxwell in November 2003, with ISBN 0 421 858 907.
11-13 In relation to the last two sentences in this paragraph, it was held by the Judicial Committee of the Privy Council in Independent Publishing Co Ltd v Attorney General of Trinidad and Tobago, The Times, 24 June 2004, that the courts have no power at common law to restrain the publication of a report of proceedings conducted in open court, although such publication, in prejudicing the administrationn of justice, might give rise to proceedings for contempt of court.
After a review of English and Commonwealth caselaw, Lord Brown of Eaton under Heywood said:
"67 Their Lordships [ ... ] conclude that if the court is to have the power to make orders against the public at large it must be conferred by legislation; it cannot be found in the common law. It is not for the Board to say whether or not such legislation is desirable. Sometimes, no doubt, an actual order rather than merely a warning may be judged necessary (as perhaps in this very case). There may, however, be fears lest the power be too readily invoked - always a concern with regard to prior restraint orders. If, moreover, legislation is to be enacted, it should include a right of appeal by those aggrieved (such as was added in the United Kingdom by section 159 of the Criminal Justice Act 1988 ).
68 Even without legislation, however, it remains open to the court (and is generally desirable, as indicated by Lord Edmund Davies in the Leveller - see para 42 above) to explain its concern and warn the press that they would be at risk of contempt proceedings were they to publish the matter in question. Such a warning would make it both less likely that a contempt would be committed and easier to punish if it were."
11-13 n 62 See also para 10 of the ruling dated 5 August 2003 of Lord Hutton in the context of his 1inquiry into the death of Dr David Kelly, agreeing with the corresponding decision of Dame Janet Smith in the Shiupman Inquiry.
11-19 In R (Officer A) v Inner South London Coroner [2004] EWHC 1592 (Admin), Mitting J held that a member of a police firearms unit who had fatally shot the deceased, and another member who accompanied the first on that occasion, were entitled to have their names withheld at the inquest into the death, because of the risks to them of serious harm, and the negligible harm resulting from anonymity. The operational difficulty of recruiting volunteers to the unit was not, however, a consideration.
The judge said:
"23 [The coroner's] very clear findings of fact reveal to me, and in my judgment to any reasonable decision-maker, the following essential propositions. First, Mr C made in the course of time outbursts which were sometimes, but by no means always, emotional, which contained threats to police officers generally; the last of which occurred in August 2003, just over two years after the killing. Secondly, Mr C reported threats, which, if taken seriously, were serious threats to the police officers involved in the killing, namely by those who might on his behalf (that is to say for his purposes rather than as his agent) wish to exact retribution.
24. Thirdly, there were available to those who may well have made those threats firearms and ammunition which would permit them to carry them out. Fourthly, Mr C was connected to a temple in which two loaded firearms had been recovered.
Those factors, in my view and in the view of any reasonable decision-maker, necessarily engage Article 2. The options open to the decision-maker were, therefore, curtailed, as Lord Woolf explained at paragraph 37 in the first of the two Bloody Sunday cases. The Coroner accepted that Sergeant A's and B's fears were genuine. She therefore rightly considered that it was an appropriate case to go on to consider the second and third of the two propositions in support of the application for anonymity.
In my view, as I have already explained, she could and should have gone on to consider those two propositions together. There is no criticism of her for beginning her consideration of them separately, but at some stage in her decision she should have considered them together.
The risk to Sergeants A and B, on any view, are at present small, but likely to increase as the inquest takes place, and are likely to increase significantly in the event of an outcome which casts no blame upon Sergeants A and B. The risk to Sergeants A and B in such an eventuality were both serious and of serious harm. Harm, by contrast to the family and to any members of the public who may wish to know their identities, from their identities not being revealed, was, on any view, negligible. It was not suggested that anonymity will prevent any proper line of inquiry being pursued into the conduct of Sergeants A and B. It is not suggested, for example, that it will be more difficult to test the credibility of their account if their names are withheld.
The only reasonable decision, in my view, open to the Coroner, was to protect the anonymity of Sergeants A and B until the verdict of the jury was returned and/or until some other event occurred before or during the inquest which demanded, in the interests of justice, that their identities be revealed. When the jury's verdict is returned, if no blame is cast upon Sergeants A and B then, although the question does not arise for decision now, it seems to me that there is unlikely to be any good reason for removing their anonymity. If the verdict does cast blame upon them, and in particular if a verdict of unlawful killing is returned, then although, again, this does not fall for decision today, it would be difficult to see how the anonymity of at least Sergeant A could properly be preserved. Those questions, if and when they arise for decision, must be determined by the Coroner in the events that then occur.
For the reasons given, I quash her decision to refuse anonymity to Sergeants A and B. I direct that she affords them anonymity until either the verdict of the jury is returned or some other event before or during the inquest occurs which would make it just to remove anonymity. I direct also that she herself directs, as she has indicated that she would if she were to grant anonymity, that no reference to the names of Sergeant A and B should be made in any report in connection with the proceedings, under section 11 of the Contempt of Court Act 1981. I leave it to her, as I have indicated in my judgment, what to do once the jury's verdict has been returned."
11-20 n 82 See also R v Mazen Itani [2003] EWCA Crim 935 (criminal case: witnesses gave evidence from behind screens, but in view of jury and counsel).
11-24 nn 3, 4 In R v D (Contempt of court: Illegal photography), The Times, 13 May 2004, the Court of Appeal upheld a 12 month sentence imposed for contempt of court on a man who had used his mobile telephone to take three photographs in the court complex, two of them in the courtroom during the trial of his brother.
11-25 In Von Hannover v Germany, on 24 June 2004, the ECtHR held that German law had failed to give adequate protection to Princess Caroline of Monaco from media intrusion into her private life (in particular by photography), even when she was in public, going about her everyday affairs. The court laid stress on the fact that photography of such a person conveyed information about the subject, but did not contribute to public debate. The Court said:
"56. In the present case the applicant did not complain of an action by the State, but rather of the lack of adequate State protection of her private life and her image.
57. The Court reiterates that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see, mutatis mutandis, X and Y v. the Netherlands, judgment of 26 March 1985, Series A no. 91, p. 11, § 23; Stjerna v. Finland, judgment of 25 November 1994, Series A no. 299-B, p. 61, § 38; and Verliere v. Switzerland (dec.), no. 41953/98, ECHR 2001-VII). That also applies to the protection of a person’s picture against abuse by others (see Schüssel, cited above).
The boundary between the State’s positive and negative obligations under this provision does not lend itself to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see, among many other authorities, Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290, p. 19, § 49, and Botta, cited above, p. 427, § 33).
58. That protection of private life has to be balanced against the freedom of expression guaranteed by Article 10 of the Convention. In that context the Court reiterates that the freedom of expression constitutes one of the essential foundations of a democratic society. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society” (see Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 23, § 49).
In that connection the press plays an essential role in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see, among many authorities, Observer and Guardian v. the United Kingdom, judgment of 26 November 1991, Series A no. 216, p. 29-30, § 59, and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 59, ECHR 1999-III). Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick v. Austria, judgment of 26 April 1995, Series A no. 313, p. 19, § 38; Tammer v. Estonia, no. 41205/98, § 59-63, ECHR 2001-I; and Prisma Press v. France (dec.), nos. 66910/01 and 71612/01, 1 July 2003).
59. Although freedom of expression also extends to the publication of photos, this is an area in which the protection of the rights and reputation of others takes on particular importance. The present case does not concern the dissemination of “ideas”, but of images containing very personal or even intimate “information” about an individual. Furthermore, photos appearing in the tabloid press are often taken in a climate of continual harassment which induces in the person concerned a very strong sense of intrusion into their private life or even of persecution.
60. In the cases in which the Court has had to balance the protection of private life against the freedom of expression it has always stressed the contribution made by photos or articles in the press to a debate of general interest (see, as a recent authority, News Verlags GmbH & CoKG v. Austria, no. 31457/96, § 52 et seq., ECHR 2000-I, and Krone Verlag GmbH & Co. KG v. Austria, no. 34315/96, § 33 et seq., 26 February 2002). The Court thus found, in one case, that the use of certain terms in relation to an individual’s private life was not “justified by considerations of public concern” and that those terms did not “[bear] on a matter of general importance” (see Tammer, cited above, § 68) and went on to hold that there had not been a violation of Article 10. In another case, however, the Court attached particular importance to the fact that the subject in question was a news item of “major public concern” and that the published photographs “did not disclose any details of [the] private life” of the person in question (see Krone Verlag, cited above, § 37) and held that there had been a violation of Article 10. Similarly, in a recent case concerning the publication by President Mitterand’s former private doctor of a book containing revelations about the President’s state of health, the Court held that “the more time passed the more the public interest in President Mitterand’s two seven-year presidential terms prevailed over the requirements of the protection of his rights with regard to medical confidentiality” (see Plon (Société) v. France, no. 58148/00, 18 May 2004) and held that there had been a breach of Article 10."
These principles appear to support the right of witnesses not to be photographed even in public situations, such as attending court, where this would amount to a significant interference with private life.
11-26 The written decision of Lord Hutton to refuse permission to broadcast the proceedings of his Inquiry is available on the Inquiry's website.
11-29 In R v D (Contempt of court: Illegal photography), The Times, 13 May 2004, the Court of Appeal upheld a 12 month sentence imposed for contempt of court on a man who had used his mobile telephone to take three photographs in the court complex, two of them in the courtroom during the trial of his brother.
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Last modified: Monday, 09-Aug-2004 08:53:15 BST by: Malcolm Bishop