Lees, R v. [2001] NICA 19 (6 April 2001)

1. In these proceedings the British Broadcasting Corporation (BBC) seeks leave to appeal against an order of Gillen J made on 4 December 2000 in Belfast Crown Court following the conviction by a jury of the defendant William John Colin Lees on two counts on bill of indictment 169/99 (“the drugs charges”) and his pleas of guilty on the counts contained in three other bills of indictment 5A/97, 336A/98 and 338/00 (“the three bills”), containing charges of various types of fraudulent activity. The judge’s order, made under section 4(2) of the Contempt of Court Act 1981 (the 1981 Act), prohibited the reporting of any of the proceedings or sentences passed in respect of the three bills –

“until the time has expired within which Notice of Appeal to the Court of Appeal in Northern Ireland in Bill of Indictment 169/99 may be given or, in the event of such notice being given, until the Appeal in Bill of Indictment 169/99 has been heard and determined or, in the event of a retrial being granted by the Court of Appeal in Northern Ireland, such retrial has been heard and determined.”

The Course of the Proceedings

3. The defendant’s trial on the drugs charges had commenced several weeks earlier. The judge had at its outset made an order under section 4(2) of the 1981 Act, postponing reporting of the proceedings in that trial, in order to avoid a risk of prejudice to the defendant on his trial on the three bills, which was then pending. The defendant was convicted by the jury on the drugs charges, then when the judge resumed the hearing to hear a plea in mitigation he pleaded guilty to each of the fraud charges contained in the three bills (with the exception of count 1 on bill of indictment 5A/97).

4. At that hearing counsel for the defendant made another application under section 4(2), this time that the reporting of the defendant’s pleas of guilty to the fraud charges in the three bills be postponed, in order to avoid a risk of prejudice to him if he should succeed in his appeal against his conviction on the drugs charges, then contemplated, and the Court of Appeal were to order a new trial. The trial judge granted the order sought, later setting out his reasons in full in a written judgment. He received detailed submissions, not only from counsel for the defendant and the Crown, but from counsel for the BBC, who sought and obtained leave from the judge to make submissions concerning the order between the time when it was first made and the judge’s delivery of his reasons. Counsel appeared for the BBC in this court to pursue the Corporation’s appeal under the 1988 Act against the making and continuance of the order. Counsel for the defendant sought to uphold the order. Crown counsel appeared as a matter of courtesy, but did not advance any arguments to the court.

6. The phrase “in any such proceedings” must refer to the legal proceedings of which a contemporaneous report would be made if postponement were not ordered. The words “those proceedings” and “the proceedings” also in our opinion refer to the same proceedings. In the present case those proceedings are the matters concerned in the three bills, to which the defendant pleaded guilty. The order made by the judge was to postpone the publication of any report of those proceedings, on the ground that it appeared to be necessary for avoiding a substantial risk of prejudice to the administration of justice in other proceedings, viz the appeal and possible retrial of the drugs charges.

“In all circumstances therefore I consider that the fact that this accused, through his Counsel has indicated that he wishes to consider an appeal to the Northern Ireland Court of Appeal, from which, if successful, a re-trial may flow is sufficient circumstance to bring this case within the meaning of ‘imminent’ or ‘pending’ proceedings. Alternatively I consider that Duffy’s case is some authority for the proposition that such a circumstance may be part of ‘those proceedings’ within the definition of Section 4(2) of the 1981 Act.”

8. We are unable to agree with his alternative ground. He was making an order in the cases comprised in the three bills, and it could not in our opinion be said that the potential retrial of the drugs charges was a part of those proceedings. We consider that for him to have jurisdiction to make the order under section 4(2) it had to be established that the appeal and possible retrial came within the meaning of “pending or imminent” proceedings.

Pending or Imminent Proceedings

9. It has been held that proceedings for an indictable offence may be regarded as pending when a person has been charged ( R v Parke [1903] 2 KB 432) or when an information has been sworn and a warrant has been issued for the arrest of the person to be charged ( R v Clarke, ex parte Crippen (1910) 103 LT 636). It seems to us clear, however, that proceedings cannot be regarded as pending until they have been commenced. We respectfully agree with the view expressed to this effect by the High Court of Australia in James v Robinson (1963) 109 CLR 593, in which the court reviewed the common law authorities in detail. As Windeyer J put it succinctly at page 615:

10. The extent of the meaning of the word “imminent” is rather more difficult to ascertain. In its ordinary sense the word carries a connotation of some event which is impending or threatening (cf R v Beaverbrook Newspapers Ltd [1962] NI 15, 21, per Sheil J), and by extension from that minatory sense it signifies that the event is due to take place shortly. It was suggested in argument, however, that a meaning contemplating a longer period of deferment might be possible, and that the court might have to resort to such a meaning in performance of its duty under section 3 of the Human Rights Act 1998 to construe legislation, so far as it is possible to do so, in a way which is compatible with Convention rights, specifically the defendant’s right to a fair trial under Article 6.

12. It is to be observed, however, that in making that remark Shaw LJ was considering committal proceedings, the subject of the appeal before the court, and it is questionable whether he intended it to refer to such proceedings as a possible retrial after an appeal which had not yet been heard. Such possible proceedings were, however, considered by the High Court of Justiciary in Galbraith v Her Majesty’s Advocate (1999, unreported). The defender had been convicted of murder and had appealed to the High Court of Justiciary. An application was made on her behalf under section 4(2) to postpone reporting of the appeal proceedings, including any retrial which might be ordered if her appeal succeeded. The court did not consider it proper in the circumstances of the case to make an order under section 4(2), and therefore it did not give a concluded answer to the question whether such a possible retrial could be regarded as pending or imminent. The Lord Justice General (Lord Rodger of Earlsferry) said, however, at paragraph 11 of his judgment, which was the judgment of the court:

“In the absence of a full argument we therefore prefer to say no more than that, if the retrial is not to be regarded as part of the same proceedings, we incline to share the view of Shaw L.J. that the words ‘pending or imminent’ would include ‘the possible (not necessarily the inevitable) outcome of legal process’ ([1982] 1 Q.B. at p. 797E). We should add that we are aware of cases in which, though the point was not argued, this court has indeed made an order under Section 4(2), covering the appeal proceedings, in view of a possible retrial.”

13. We were informed by Mr Treacy that the defendant has lodged a notice of appeal against his conviction on the drugs charges. The appeal is therefore “pending” within the meaning of section 4(2). Counsel did not address any submissions on the strength of the defendant’s case on appeal, we think rightly, for we should be very reluctant to base our decision on any estimate of the view which the court would take of the appeal when fully argued.

14. It could not in our view be said that a retrial, if one were ordered by the court pursuant to section 6 of the Criminal Appeal (Northern Ireland) Act 1980, is to be regarded as “pending”. Section 7(1) of that Act provides that a person who is to be retried in pursuance of an order made by the Court of Appeal is to be tried upon a fresh indictment preferred by direction of the court. Paragraph 16 of Schedule 1 to the 1981 Act classes a new trial amongst “any further or new proceedings”. It is referred as “fresh proceedings” in the judgment of Lord Parker CJ in R v Duffy, ex parte Nash [1960] 2 QBB 188 at 198. We therefore consider that a retrial, if ordered, would not fall under the head of pending proceedings.

15. On the other hand, it is open to the court, when making an order under section 4(2), to postpone publication of reports of the proceedings “for such period as the court thinks necessary for that purpose [viz avoiding a substantial risk of prejudice to the administration of justice].” We consider that reporting of the proceedings under the three bills could create a substantial risk of prejudice to the administration of justice in the hearing of the appeal. The ability of the members of the Court of Appeal to hear the appeal objectively would not of course be affected by the report. But if the court were to allow the appeal and consider ordering a retrial, it might be inhibited from doing so if the publicity created by the reporting would make it difficult to afford the defendant a fair trial. If the court found it impossible to order a retrial for such a reason, that could constitute prejudice to the administration of justice. It seems to us a tenable view that the judge had jurisdiction on this basis to continue the order postponing reporting until the conclusion of any retrial and that we should for that reason confirm his decision.

16. The alternative ground on which the judge’s order of postponement could be upheld is that a retrial could properly be regarded as “imminent”. It is uncertain what may be the result of the defendant’s appeal or whether, if it is successful, the court would see fit to order a new trial. By the time preparations for the appeal are completed and the appeal is heard and determined, any retrial which might be ordered could not, even employing all reasonable expedition, be heard before a number of months has elapsed from the present time. We are conscious of what the Lord Justice General said in Galbraith v HM Advocate , but he was properly careful about expressing a conclusion. It would be stretching the ordinary meaning of the word “imminent” a considerable distance to regard such a retrial as having been imminent in December 2000. It may be possible, however, to accomplish this by focusing on the link between the appeal and any new trial which might be ordered. Although the potential retrial is regarded by the legal system as fresh proceedings and so is not at present pending, it would nevertheless be an extension of the appeal and could be regarded as stemming from them. One could therefore say that the whole appellate process, comprising the appeal and a new trial, was in effect one process and was imminent at the time when the judge made the order. We have to say frankly that we would not regard that construction as natural, but it seems to us that it is just possible to read section 4(2) in this way. To read it in any other way would leave the defendant vulnerable to the adverse effects of having the proceedings on the three bills reported, which could be regarded as making the retrial unfair, in breach of Article 6 of the Convention. We therefore could on this argument regard ourselves as bound to read the section in the way suggested, in order to comply with section 3 of the Human Rights Act 1998.

17. On either of these bases it would be possible to justify the judge’s order of postponement of publication. We are inclined to prefer the former, whereby the appeal is regarded as “pending” and the order is made to extend beyond it to cover any retrial in order not to inhibit the Court of Appeal in ordering a retrial if it thinks fit. If we are wrong in our conclusion that this is a tenable basis for the judge’s order, we would adopt the latter basis and hold that the retrial is “imminent”, for the reasons which we have given.

18. We turn then to the other major issue argued by Mr Stephens QC for the BBC, that even if he had jurisdiction to make an order under section 4(2), the judge was wrong on the facts of the case to do so. We trust that we do not do injustice to his careful and thorough argument if we do not deal in extenso with the points which he made . He emphasised the length of time which is bound to elapse before any retrial could commence, the relatively minor degree of publicity which would ensue from a report, the ability of the trial judge to give directions to the jury and the common sense and intelligence which should be attributed to modern jurors. He also submitted that Article 10(1) of the Convention, containing the right to freedom of expression, should not be confined any more than was strictly required by Article 10(2) and that the court should not accept a hierarchy of provisions in the Convention which would elevate Article 6 above Article 10.

19. The learned trial judge took all these matters into account in a thorough review of the issues and the authorities in his judgment, and we do not find it necessary to repeat what he there set out. He concluded that it was necessary to make a postponement order to avoid a substantial risk, which he found to exist, of prejudice to the administration of justice. In considering the issue he properly appreciated the two-stage nature of the test which he had to apply, first, whether the publication would create a substantial risk of injustice and, secondly, whether it was necessary to postpone publication in order to avoid that risk. He set out fully the considerations which he took into account. Mr Stephens did not suggest that he had taken incorrect considerations into account or omitted any of importance. His challenge to the judge’s conclusion was directed more to the weight which he placed on the several factors.

20. It is material at this point to consider the way in which we should approach the exercise of the judge’s discretion in a case of this type, in particular the extent to which we as an appellate tribunal should be ready to substitute our own view of the matter decided by him. The authorities do not speak with a clear voice on the review of discretion in criminal appeals and there is a discernible conflict in this very area of decisions on postponement of publication.

“We are firmly of the view that the judicial exercise of discretion under section 4(2) of the 1981 Act can only become an exercise which involves a question of law if it can be demonstrated that the discretion was exercised by the judge upon a fundamentally flawed basis. Once, however, the judge carries out what is essentially a balancing exercise upon proper material, then the court will not interfere unless it can be shown that the decision was perverse.”

“It has been correctly submitted to us by Mr Aikens QC that in applying the subsection we, as the Court of Appeal, can exercise our own discretion. It is not a case of reviewing the exercise of the learned judge’s discretion with the limitations imposed on the Court of Appeal in such circumstances. So we approach the case first of all by deciding whether there was such a substantial risk of prejudice and secondly whether, if we find that there is such a risk, in our discretion we should make the order.”

22. The conflict between these statements has not been resolved in subsequent case-law and we have to attempt to determine the correct approach. We consider that there is substance in the view set out in Blackstone’s Criminal Practice 2000 para 22.17 that the readiness of the Court of Appeal to interfere with a judge’s exercise of discretion varies with the subject matter. Where it is dealing with a matter of procedure, such as the ordering of separate trials, it has generally been unwilling to interfere unless the result of the judge’s decision was to make the conviction unsafe: see R v Grondkowski [1946] KB 369; R v Moghal (1977) 65 Cr App R 56. At the other end of the scale, the court has been rather more ready to substitute its own view for that of the trial judge in the area of exclusion of evidence under PACE: see, eg, R v Canale [1990] 2 All ER 187. Somewhere between these extremes lie cases such as R v McCann (1991) 92 Cr App R 239, where the issue was the judge’s exercise of his discretion to discharge the jury when potentially prejudicial statements about the right of silence had been made by public figures. Beldam LJ, giving the judgment of the court, said at page 251:

“The second matter we have in mind is that when the learned judge considered the application at the trial he was exercising a discretion. To the exercise of this discretion this Court must give great weight. To reverse the judge’s ruling it is not enough that the members of this court would have exercised their discretion differently. We must be clearly satisfied that the judge was wrong; but our power to review the exercise of his discretion is not limited to cases in which he has erred in principle or there is shown to have been no material on which he could properly have arrived at his decision. The court must, if necessary, examine anew the relevant facts and circumstances to exercise a discretion by way of review if it thinks that the judge’s ruling may have resulted in injustice to the appellants. See Evans v. Bartlam [1937] A.C. 473.”

23. We find it difficult to share the view expressed in Ex parte Telegraph plc that power conferred on the court to confirm, reverse or vary the order takes the case into a category in which the appellate tribunal is to exercise its own discretion rather than reviewing the trial judge’s exercise of the discretion vested in him. The powers of the Court of Appeal in civil cases are defined in virtually identical terms – see, in England, section 15(3) of the Supreme Court Act 1981 and CPR 59.10(3) and, in Northern Ireland, section 38(1)( a) of the Judicature (Northern Ireland) Act 1978 and RSC (NI) Order 59, rule 10(3) -- yet in Evans v Bartlam [1937] AC 473 it was accepted as settled law that the Court of Appeal will not generally interfere with the exercise of a judge’s discretion except on grounds of law, although it will do so if it sees that otherwise injustice will be done.

24. We therefore would prefer to place the power of the Court of Appeal to review the exercise of discretion in a case such as the present rather nearer the description given by Russell LJ in R v Saunders than those in the subsequent cases. In our opinion we should not upset the judge’s decision unless he has made an error of law, such as taking incorrect factors into account, while reserving the right to do so if he has gone plainly wrong, perhaps not so far as reaching a decision which is Wednesbury unreasonable or perverse, but far enough away from our view of a proper decision to cause injustice. Applying this test, we can see nothing in the judge’s exercise of his discretion in the present case to cause us to feel any concern that his decision should be vulnerable to such an attack.

25. If we should be wrong on this issue, and it is our duty to investigate the several factors to be taken into account and exercise the discretion afresh for ourselves, we should nevertheless conclude that the judge was right. We agree with the reasons which he has expressed in his judgment for concluding that there would be a substantial risk of prejudice to the administration of justice if the proceedings on the three bills were reported before the conclusion of any retrial which might be ordered. If the modus operandi of the defendant were publicised, the more so if it were done in a feature programme of the type envisaged, there is a substantial risk that it would be remembered by jurors and that it would affect their assessment of the case they had to try. We do not consider that there is any practicable way of protecting him against this risk other than ordering a postponement of reporting under section 4(2). Further postponement of the appeal and possible retrial would be undesirable, for the reasons given by the judge: attempting to restrict the reporting ban to the modus operandi does not appear practicable to us and jury selection procedures or warnings to the jury are not in our view likely to be very effective and may well have the opposite effect of reminding them of the proceedings reported. We therefore take the same view as the judge and if, contrary to the view which we have expressed, we are bound to exercise our own discretion ab initio, we consider that reporting of the proceedings comprised in the three bills should be postponed until the final determination of the appeal and any retrial which may be ordered.

Court of Appeal in Northern Ireland Decisions