Web view · 2017-01-23Neutral Citation Number: [2016] EWCA Crim 58. Case Nos: 201600621B2, 201600625B2, 201600624B2, 201600622B2 and T20157084. IN THE COURT OF APPEAL (CRIMINAL DIVISION)

Neutral Citation Number: [2016] EWCA Crim 58

Case Nos: 201600621B2, 201600625B2, 201600624B2, 201600622B2 and T20157084

IN THE COURT OF APPEAL (CRIMINAL DIVISION) IN THE MATTER OF AN APPEAL PURSUANT TO S.159 OF THE CRIMINAL JUSTICE ACT 1988 ON APPEAL FROM THE CROWN COURT AT BRISTOL Mr Justice King T20157084

Royal Courts of JusticeStrand, London, WC2A 2LL

Date: 17/03/2016Before :

LORD JUSTICE GROSS MR JUSTICE GLOBE

andHIS HONOUR JUDGE BURBIDGE QC

(SITTING AS A JUDGE OF THE CACD) - - - - - - - - - - - - - - - - - - - - -

Between :

In re GUARDIAN NEWS & MEDIA LTDand three other Media Organisations

Appellants

R-v-

JAN KINGSHOTTMICHAEL MARSDEN

SIMON TANSLEY

- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -

Guy Vassall-Adams QC for the Guardian News and Media Ltd and three other AppellantsJulian Evans for the Crown

Ramin Pakrooh for Jan KingshottHugo Lodge for Michael Marsden and Simon Tansley

Hearing dates : 09 February, 2016- - - - - - - - - - - - - - - - - - - - -

Approved JudgmentSUBJECT TO REPORTING RESTRICTIONS

The publication of any report of this judgment, or any part of it (other than the Ruling at Annex A, covered by its own reporting restriction), be postponed until after

(i) Verdicts in this trial, R –v- Kingshott and Others; and

(ii) Verdicts in the retrial of R –v- F and D (at Teeside Crown Court; Indictment: T20147608).

Judgment Approved by the court for handing down. In re Guardian News & Media Ltd and Others

Lord Justice Gross :

1. The publication of any report of this judgment, or any part of it (other than the Ruling at Annex A, covered by its own reporting restriction), be postponed until after:

i) Verdicts in this trial, R –v- Kingshott and Others; and

ii) Verdicts in the retrial of R –v- F and D (at Teeside Crown Court; Indictment T20147608).

INTRODUCTION

2. On the 9th February, 2016, we heard the Appellants’ (“the Media Organisations’”) application for leave to appeal and their appeal, pursuant to s.159 of the Criminal Justice Act 1988 (“the CJA 1988”), against an order of King J, dated 28th January, 2016 (“the Order”).

3. Given the urgency of the matter, we stated in our Ruling dated and handed down on 16th February, 2016 (“the Ruling”) that we allowed the Media Organisations’ appeal. A copy of the Ruling is annexed at Annexe A herewith.

4. We also indicated in the Ruling that our detailed reasons would be given in due course. We now do so.

THE HISTORY

5. As set out in the Order, King J refused an application of the Media Organisations made, on the 19th January, 2016, pursuant to Rule 5.8(7), Criminal Procedure Rules 2015 (“the CPR”), for access to certain CCTV footage shown in open court in the course of the trial, R v Kingshott and others (“the trial”).

6. In summary, the trial concerns charges of manslaughter brought against a police officer and two detention unit staff, arising from the death in custody on the 3 rd

October, 2012 of a 32 year old man, Thomas Orchard (“the deceased”). It transpires that the deceased was ill and suffering from a relapse of his mental illness, paranoid schizophrenia.

7. The video footage shows the arrest of the deceased by police in Exeter city centre and, subsequently, his handling and restraint by custody staff and police officers – including the use of an Emergency Response Belt (“ERB”) – in the custody suite at Heavitree Police Station. The prosecution case is that the placing of the ERB around the deceased’s head was unnecessary and unlawful and restrained his breathing in an unjustified way.

8. The Prosecution Opening Note says this:

“ 3. …..the combination of force and physical restraints used on him, coupled with a complete failure to enquire and so to realise his true condition and also to observe him closely, led to him being starved of oxygen to the point of cardio-respiratory arrest.


4. He died because force was used to restrain him, mostly in a prone position, and in addition a large webbing belt was put across his face. Together these things interfered with his ability to breathe. The situation continued for over five minutes. At the same time, no one of those directly responsible took sufficient care to see that he was breathing properly – or at all. Instead, he was left in a locked cell, under remote observation for a further twelve minutes until his true condition was discovered. By then, it was too late.

5. The three defendants ….are those directly responsible for his detention at the police custody unit, for implementing and directing the use of force there and for the application of the webbing belt about his head at the same time. The Crown says that by those actions they unlawfully caused his death.”

9. Each of the defendants denies that what he did was unlawful and that any unlawful action of his resulted in the deceased’s death. The use of the ERB was justifiable due to the risk of biting and spitting.

10. The video footage from the custody suite is central to the prosecution case and has been a major focus of the trial, displayed on large screens and viewed by the jury, the public and reporters in open Court. It has apparently been analysed to the jury over two days; frames were paused, stopped and rerun to give them the opportunity to see what can be seen.

11. The 19th January application by the Media Organisations sought the following:

“1. CCTV footage as played in open court: (1) Showing Mr. Orchard and police in Exeter city centre; and (2) from the custody suite showing the arrival of Mr. Orchard up to the point that it is discovered that he is unresponsive.

2. From the jury bundle, which is now an exhibit in the case: images of the cell and the view into the cell; images of the Emergency Response Belt; images of the police van used to transport Mr. Orchard….”

It has been clear throughout that the application did not extend to footage of resuscitation efforts and that there would be “pixilation” of the faces of any individuals who were not defendants in the trial.

12. By the date of the Media Organisations’ application for the release of the material, it seems clear that the prosecution intended to deliver the CCTV material to the media for onward broadcast after it had been fully given in evidence subject to: (1) the views of the deceased’s family; (2) the views of the Devon and Cornwall Constabulary, together with the IPCC and the Police Federation; (3) any representations by or on behalf of the defendants; (4) the views of the trial Judge. It is noteworthy that neither the prosecution, for its own part, nor any of those within categories (1) and (2) opposed the release of the material.


13. Pausing here, the prosecution approach was guided by the CPS/Media Protocol (as I shall term it), i.e., Publicity and the Criminal Justice System: Protocol for working together: Chief Police Officers, Chief Crown Prosecutors and the Media. The CPS/Media Protocol is divided into two parts; the first may be characterised as Terms of Reference; the second deals in terms with media access to prosecution materials.

14. Part 1 of the CPS/Media Protocol includes the following provisions:

“ 1. ….Our aim is to ensure greater openness in the reporting of criminal proceedings.

2. Our overriding objective is to provide an open and accountable prosecution process, by ensuring that the media have access to all relevant material wherever possible, and at the earliest appropriate opportunity.

5. A key objective is to achieve effective mutual cooperation. Criminal justice agencies and the media have different roles to fulfil. The primary function of the police is to protect public safety. The role of CPS is to prosecute appropriate cases firmly and fairly. The media’s task is to provide the public with information they have a right to, swiftly and comprehensively.

6. ACPO and CPS appreciate the need for speedy decisions about releasing material. Expediting media access to information about prosecutions is an important element of the CPS role……”

15. So far as here relevant, Part 2 of the CPS/Media Protocol is in these terms:

“ 1. The aim of the CPS is to ensure that the principle of open justice is maintained – that justice is done and seen to be done – while at the same time balancing the rights of defendants to a fair trial with any likely consequences for victims or their families and witnesses occasioned by the release of prosecution material to the media.

2. Prosecution material which has been relied upon by the Crown in court and which should normally be released to the media, includes:

…..

CCTV footage of the defendant, subject to any copyright issues.

3. Prosecution material which may be released after consideration by the Crown Prosecution Service in consultation with the police and relevant victims, witnesses and family members includes:


CCTV footage or photographs showing the defendant and victim, or the victim alone, that has been viewed by jury and public in court, subject to any copyright issues

…..”

16. A CPS “Operational Note” dated 11th January 2016 contained information on the trial (due to start the next day) and stated that the media “may request access to materials that have been used in court”. Such requests would be considered in accordance with the CPS/Media Protocol.

17. Reverting to the history, when the prosecution informed the Judge – as a matter of courtesy – that it proposed to release the CCTV material, the Judge expressed concerns and, very properly, the prosecution then indicated that it would not release the material. Accordingly, the Media Organisations made the application to the Court already referred to and, in the event, King J refused to permit release of the footage before the conclusion of the trial.

18. The Order (of King J) was in these terms:

“1. The Media Organisations’ application for access to the following CCTV footage (and still images thereof) is refused:

a) CCTV footage showing Mr Orchard at and around the time of his arrest in Exeter City Centre on 3 October 2012;

b) CCTV footage from the custody suite at Heavitree Police Station from 11.18.43 to 11.29.17 on 3 October 2012 insofar as it shows Mr Orchard and the manner of the Defendants in their dealings with him (‘the material events’).

2. The Media Organisations shall be permitted to have access, at this stage of the proceedings, to CCTV footage and other images which have been played, shown or referred to in open court and do not show the material events, such as footage and/or images of the Emergency Response Belt, police van, custody suite and cell.

3. The Court is minded to allow the Media Organisations access to the CCTV footage (and still images thereof) referred to in paragraph 1 above after the jury has returned its verdicts in the trial, providing that there is pixilation of the faces of the police officers other than the Defendants and subject to any further representations received at that time.”

19. There was, helpfully, before us an agreed Note of the learned Judge’s ruling. Having outlined the facts and the course of the trial thus far, King J accepted that the “fundamental principle” was open justice. It was not for the Court to determine how the “responsible media” should approach its responsibility under the Contempt of Court Act 1981 (“the CCA 1981”). There was “powerful support” for the proposition that without a countervailing consideration of considerable strength – in


the present case linked to the fairness of the trial – such an application should be acceded to. King J reminded himself of the various relevant provisions of the Criminal Practice Directions 2015 (“the CPD 2015” – to which we return, below). He then said this (at [21]):

“ The general principle is that the court should provide documents unless there is a good reason not to. In addition, the thrust of the CPS Media Protocol is that a fair trial is paramount. One has to balance the rights of the defendant to a fair trial. Prosecution material relied on should normally be released subject to …considerations about the victim and their family.”

Further, the Judge made mention of the European Convention on Human Rights (“the ECHR”) and the decision of this Court in Re B [2007] EMLR 5, to which, again, we shall return. Against this background, the Judge had no doubt that the media should have released to them the footage and still images set out in para. 2 of the Order.

20. The Judge acknowledged that the Crown’s position (as already recorded above) was that (in essence) they would not stand in the way of the Media Organisations’ application. He then turned to his reasons for refusing the release of the material set out in para. 1 of the Order:

“27. I however take the view that the CCTV is of paramount importance to the case. It is key to the prosecution case. The jury has been invited to concentrate on the footage in its entirety and to determine whether the Crown’s case is established. They have been asked to look at it in detail to determine their own conclusion as [to] the manner in which Mr Orchard was restrained, the manner in which the ERB was used, and whether the force used was lawful. I have no doubt that the responsible media will not go further than playing the footage (or extracts from it), or publishing stills from it. However, in the context of this case this would involve enabling the jury in this case to be confronted inevitably with key, crucial evidence….outside the courtroom and the jury room in a way which ….. would be wholly unamenable to a fair trial. They must consider that CCTV when they are together in their retirement room and free of comment from outside sources.

28. I can direct them to ignore it but in this case it would be unrealistic….to believe that they would be able to put out of their minds anything they see (for example) on television. There is also a real and not a fanciful risk that the footage will (once shown) go viral on social media, where the risk of distortion and comment is very real. Mr Vassall-Adams [who appeared for the Media Organisations] points out that I have already directed the jury not to consider material on social media, but it will inevitably come to their attention. I accept


that the jury have been directed not to research it but there is a risk they might come across it inadvertently.

29. The media has submitted that ‘to fully and effectively inform the public of the evidence in this case it is necessary to show the footage as part of our reporting of the trial’. This is not a case in which the material was shown secretly; it was shown in open court. This is not a case where the documents were simply referred to but not read out, as in the Guardian News case. Those in the courtroom included representatives of the media …..and I do not accept that it is essential to informing the public effectively of the ongoing trial to show the CCTV footage as part of their reporting at this stage. I have already made it clear that when the trial is completed the media should have access to the entirety. ….. The timing of the release is a matter peculiarly for this court and is fact-specific.

30. I am determining the timing of release.

31. I do not regard the role of the CCTV footage as comparable to that which has been released, in the words of counsel for the applicants, routinely up and down the country – here it is the critical evidence, and the jury must assess it together in the court room or jury room. I regard the need to uphold that principle as so important that it outweighs the very powerful countervailing considerations put so cogently by Mr. Vassall-Adams, in order to preserve a fair trial. ”

THE GROUNDS OF APPEAL AND THE ARGUMENTS BEFORE THIS COURT

21. We should record that we invited the Attorney General to consider instructing an amicus to appear at the hearing before us. We were told, however, that in the time available it had not been possible for the Attorney to instruct counsel of suitable seniority to do so.

22. We should further record that we became aware that a different constitution of this Court was imminently to give judgment in another case concerning the media, namely, Ex parte BBC; R v F and D [2016] EWCA Crim 12. We therefore heard initial argument from the parties and the Media Organisations on the 9 th February and then gave all concerned a short period of time to make written submissions following the handing down of Ex parte BBC. In that case the jury had been discharged and a high profile and extremely difficult trial aborted following “vile” social media comment; such comment had fallen into three categories: those threatening the defendants, those derisive of their guilty pleas and those dismissive of the court process. With the retrial shortly to commence, this Court ultimately decided to discharge an earlier order made under s.4(2) of the CCA 1981 and, in its place, to order the media organisations under s.45(4) of the Senior Courts Act 1981 (“the SCA 1981”):

“ ….until verdicts in the criminal trial or further order (a) not to place any report of the criminal trial of F and D on their


respective Facebook profile page or pages and (b) to disable the ability for users to post comments on their respective news websites on any report of the criminal trial published by the media organisations on their websites. ”

The Court additionally directed that the order should also be published to the Press Association, so as to bring it to the attention of other media outlets not specifically involved in or aware of the court proceedings. The summary of the Media Organisations’ and the parties’ submissions in the present case covers both those before and those after consideration of the judgment in Ex parte BBC.

23. The Media Organisations appealed to this Court, advancing six Grounds of Appeal. In summary, it was contended that the Judge erred:

i) In failing to consider whether rejection of the application was necessary;

ii) In failing to give any or adequate consideration to the importance of contemporaneous reporting;

iii) In concluding that the requested footage was unnecessary for accurate and effective reporting;

iv) In failing adequately to identify the mechanism/s by which access to the requested footage would prejudice the proper conduct of the trial;

v) In failing to follow the authorities on jury robustness;

vi) In the alternative to i) above, in concluding that the risk of prejudice outweighed open justice and freedom of expression.

24. For the Media Organisations, Mr. Vassall-Adams, developing the Grounds of Appeal, focused in particular on open justice and contemporaneous, accurate and effective reporting. The centrality of the CCTV material supported rather than undermined the case for its release. Mr Vassall-Adams also underlined the importance attached to “trusting the jury” and “jury robustness”. Upon consideration, the Judge’s analysis of the risks to the fairness of the trial was unsustainable. Ex parte BBC was an extreme case on its own facts; submissions as to prejudicial social media comment in the present case were speculative and not supported by evidence. It was further to be remembered that for jurors to carry out online research, or share such research with other jurors, would (now) be criminal offences under ss. 20A and 20B of the Juries Act 1974 (as amended).

25. We have already outlined the prosecution’s initial readiness to release the CCTV material. Plainly, in the light of the Order, the prosecution would not release that material while the Judge’s decision stood. Should this Court overturn the Judge’s decision, then the prosecution invited us to consider making an order in similar terms to that made by the Court in Ex parte BBC.

26. Counsel on behalf of the First Defendant (Mr. Kingshott) advanced no “independent submissions”.


27. Counsel on behalf of the Second and Third Defendants (Mr. Tansley and Mr. Marsden) supported the Judge’s decision. In particular, as it was “impossible to effectively control social media” it was imprudent to release the CCTV material until after verdicts had been given. The observations of the Court in Ex parte BBC as to social media comment applied here too. If this Court was minded to overturn the Judge, then the Second and Third Defendants submitted that release of the CCTV material should be delayed until after the conclusion of the evidence; the First Defendant had already concluded his evidence and a “level playing field” should be maintained between defendants.

DISCUSSION

28. Our approach falls conveniently under three broad headings:

i) Jurisdiction;

ii) Law;

iii) Decision.

Jurisdiction

29. We can dispose, summarily, of a preliminary concern raised as to our jurisdiction. S. 159 of the CJA 1988 provides, insofar as material, as follows:

“ (1) A person aggrieved may appeal to the Court of Appeal, if that court grants leave, against –

…..

(c) any order restricting the publication of any report of the whole or any part of a trial on indictment….;

and the decision of the Court of Appeal shall be final. ”

30. The question posed was whether paras. 1a) and b) of the Order came within s.159 (1)(c). Suffice to say that there was no dispute before us that they did and that we had jurisdiction under s.159(1)(c) to entertain the appeal; moreover, authority supports giving that sub-section “…the widest possible construction”: In re ITN News Ltd [2013] EWCA Crim 773; [2014] 1 WLR 199, at [26]; see too, R v Marine A [2013] EWCA Crim 2367; [2014] 1 WLR 3326.

31. We gave leave to appeal and proceeded to consider the appeal.

Law

32. (1) Open Justice: It is unnecessary to cite the many authorities of the highest standing on the importance of open justice. In the present context - involving a consideration of whether materials shown to the jury in open court should be released to the media and, if so, when – it suffices to take as our starting point R (Guardian News & Media Ltd) v Westminster Mags’ Court (CA) [2013] QB 618. There, after the conclusion of extradition proceedings, a newspaper publisher sought to be provided with copies of


or to be allowed to inspect written evidential material referred to but not read out in open court. The District Judge refused the application; the Court of Appeal allowed the appeal.

33. The lead judgment was given by Toulson LJ (as he then was). He began as follows:

“ 1. Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed? …..In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process…..

2. This a constitutional principle which has been recognised by the common law since the fall of the Stuart dynasty….

4. There are exceptions to the principle of open justice but, as Viscount Haldane LC explained in Scott v Scott…., they have to be justified by some even more important principle. The most common example occurs where the circumstances are such that openness would put at risk the achievement of justice which is the very purpose of the proceedings.”

34. Toulson LJ emphasised (at [69]) that the open justice principle was a constitutional principle, “…to be found not in a written text but in the common law”; the courts have an inherent jurisdiction to determine how the principle should be applied. It was not an objection that to allow the application would be to go further than the courts had considered necessary in the past; the practice of the courts was not frozen: [78], [80]. The power was derived from the common law; the process was set out in the CPR: [75]. In basing his decision on the common law principle of open justice, Toulson LJ was fortified by the common theme of the judgments in other common law countries to which he referred: [88]. Though it was not entirely clear cut, the Strasbourg jurisprudence might be seen as leading in the same way but his decision was based on the common law, not on Art. 10, ECHR: [89].

35. Toulson LJ held that the claimant had a “serious journalistic purpose” in seeking access to the documents for the purpose of “stimulating informed debate” about the way the justice system dealt with suspected international corruption and the system for the extradition of British subjects to the USA: [76]. Absent strong contrary arguments, the courts “should assist rather than impede such an exercise”; the matters in question were matters of public interest about which it was right that the public should be informed: [77].

36. The nub of Toulson LJ’s approach is encapsulated in the following passage (at [85]):

“ In a case where documents have been placed before a judge and referred to in the course of proceedings, in my judgment the default position should be that access should be permitted on the open justice principle; and where access is sought for a proper journalistic purpose, the case for allowing it will be particularly strong. However, there may be countervailing


reasons. In company with the US Court of Appeals, 2nd Circuit, and the Constitutional Court of South Africa, I do not think that it is sensible or practical to look for a standard formula for determining how strong the grounds of opposition need to be in order to outweigh the merits of the application. The court has to carry out a proportionality exercise which will be fact-specific. Central to the court’s evaluation will be the purpose of the open justice principle, the potential value of the material in advancing that purpose and, conversely, any risk of harm which access to the documents may cause to the legitimate interests of others.”

37. It is fair to note that the Guardian case itself did not involve a jury – though the reference to “countervailing reasons” is general in scope.

38. The CPD 2015, para. 5B, “Access to information held by the court”, is of the first importance to the present case and was, as its terms make clear, drafted in the light of Guardian (supra). Para. 5B – as will be seen from the paragraphs which follow – addresses the application of the “open justice principle” and the proper balancing of conflicting rights and principles which fall to be considered in the individual case. The paragraph provides, in terms, that a “document” includes CCTV footage and applies specifically to jury bundles and exhibits, including video footage shown to the jury. The significance of contemporaneous reporting is noted as is the need to have regard to the stage the proceedings have reached. The particular role of the media as “public watchdog” is acknowledged. While “editorial judgment” is not for the judge, responsibility for compliance with the CCA 1981 and any other restrictions on the use of the material rests with the recipient.

39. After referring to the principle stated by Toulson LJ in Guardian, para. 5B.1 goes on to say this:

“ …the practical application of that undisputed principle, and the proper balancing of conflicting rights and principles, call for careful judgments to be made. The following is intended to provide some assistance to courts making decisions when asked to provide the public, including journalists, with access to or copies of information and documents held by the court. It is not a prescriptive list, as the court will have to consider all the circumstances of each individual case.”

40. Para. 5B.2 contains a reminder that the recipient of information or documents remains responsible for compliance with any restrictions, including reporting restrictions.

41. As made clear by para. 5B.3, the word “document” includes “images in photographic, digital including DVD format, video, CCTV or any other form”.

42. Where CPR r. 5.8(7) applied – as it does in this case – the provision of information is at the discretion of the court and the CPD 2015 furnishes guidance at paras. 5B.6 and following to assist the court in the exercise of that discretion. In that regard, express mention is made (at para. 5B.7) to the CPS/Media Protocol (already referred to).


43. Para. 5B.9 is in these terms:

“ The court will consider each application on its own merits. The burden of justifying a request for access rests on the applicant. Considerations to be taken into account will include:

i. whether or not the request is for the purpose of contemporaneous reporting; a request after the conclusion of the proceedings will require careful scrutiny by the court;

ii. the nature of the information or documents being sought;

iii. the purpose for which they are required;

iv. the stage of the proceedings at the time when the application is made;

v. the value of the documents in advancing the open justice principle, including enabling the media to discharge its role, which has been described as a ‘public watchdog’, by reporting the proceedings effectively;

vi. any risk of harm which access to them may cause to the legitimate interests of others; and

vii. any reasons given by the parties for refusing to provide the material requested and any other representations received from the parties.

Further, all of the principles below are subject to any specific restrictions in the case. Courts should be aware that the risk of providing a document may reduce after a particular point in the proceedings, and when the material requested may be made available.”

44. Para. 5B.17 comes under the heading “Jury Bundles and exhibits (including video footage shown to the jury)”. This paragraph provides as follows:

“ The court should consider:

i. whether access to the specific document is necessary to understand or effectively to report the case;

ii. the privacy of third parties, such as the victim…..

iii. whether the reporting of anything in the document may be prejudicial to a fair trial in this or another case, in which case whether it may be necessary to make an order under section 4(2) of the Contempt of Court Act 1981.

……”


45. Para. 5B.26 deals specifically with “Access by reporters” and addresses the role of the press as “public watchdog”:

“ Under CrimPR Part 5, the same procedure applies to applications for access to information by reporters as to other members of the public. However, if the application is made by legal representatives instructed by the media, or by an accredited member of the media, who is able to produce in support of the application a valid Press Card….then there is a greater presumption in favour of providing the requested material, in recognition of the press’ role as ‘public watchdog’ in a democratic society…. The general principle in those circumstances is that the court should supply documents and information unless there is a good reason not to in order to protect the rights or legitimate interests of others and the request will not place an undue burden on the court….. ”

46. Finally, for these purposes, para. 5B.30 provides that it is not for the judge to exercise an “editorial judgment” as to the “adequacy of the material already available to the paper for its journalistic purpose” – but:

“ …the responsibility for complying with the Contempt of Court Act 1981 and any and all restrictions on the use of the material rests with the recipient.”

47. A number of the themes contained in the CPD 2015 found earlier and authoritative expression in the speech of Lord Steyn in In re S [2004] UKHL 47; [2005] 1 AC 593. That case involved an application for an injunction to prohibit the identification of the defendant (“mother”) and the victim (“brother”) in the mother’s trial for murder of the brother, so as to protect the privacy of the surviving child (S). Upholding the decisions of the lower courts, the House of Lords dismissed S’s appeal; the interference with his Art 8 rights, though distressing, was outweighed by the need to avoid inhibiting the press from reporting criminal trials.

48. At [18], Lord Steyn referred to the press as “the watchdog of the public”. Later in his speech, Lord Steyn’s observations highlight the importance of open justice, contemporaneous reporting and public confidence in the administration of justice. Lord Steyn said this:

“ 30. … A criminal trial is a public event. The principle of open justice puts, as has often been said, the judge and all who participate in the trial under intense scrutiny. The glare of contemporaneous publicity ensures that trials are properly conducted. It is a valuable check on the criminal process. Moreover, the public interest may be as much involved in the circumstances of a remarkable acquittal as in a surprising conviction. Informed public debate is necessary about all such matters. Full contemporaneous reporting of criminal trials in progress promotes public confidence in the administration of justice. It promotes the values of the rule of law.


34. ….it is important to bear in mind that from a newspaper’s point of view a report of a sensational trial without revealing the identity of the defendant would be a very much disembodied trial. If the newspapers choose not to contest such an injunction, they are less likely to give prominence to reports of the trial. Certainly, readers will be less interested and editors will act accordingly. Informed debate about criminal justice will suffer.”

49. (2) Trust the jury: A number of authorities address the impact on juries of media publicity and the safeguards in the trial process to ensure a fair trial, together with the confidence necessarily placed in the jury under our criminal justice system.

50. Montgomery v HM Advocate (PC) [2003] 1 AC 641 concerned extensive pre-trial publicity, including a campaign group formed to press for the defendants to be brought to trial. The defendants unsuccessfully contended that it would be impossible for them to have a fair trial. Lord Hope of Craighead said this (at pp. 673-4):

“ …Recent research conducted for the New Zealand Law Commission suggests that the impact of pre-trial publicity and of prejudicial media coverage during the trial, even in high profile cases, is minimal. …..The lapse of time since the last exposure may increasingly be regarded with each month that passes, in itself as some kind of a safeguard. Nevertheless the risk that the widespread, prolonged and prejudicial publicity that occurred in this case will have a residual effect on the minds of at least some members of the jury cannot be regarded as negligible. The principal safeguards of the objective impartiality of the tribunal lie in the trial process itself and the conduct of the trial by the trial judge. On the one hand there is the discipline to which the jury will be subjected of listening to and thinking about the evidence. The actions of seeing and hearing the witnesses may be expected to have a far greater impact on their minds than such residual recollections as may exist about reports about the case in the media. This impact can be expected to be reinforced on the other hand by such warnings as the trial judge may think it appropriate to give them as the trial proceeds, in particular when he delivers his charge before they retire to consider their verdict.

…..the entire system of trial by jury is based upon the assumption that the jury will follow the instructions which they receive from the trial judge and that they will return a true verdict in accordance with the evidence. ”

51. In Re B [2006] EWCA Crim 2692; [2007] EMLR 5, amidst extensive publicity, B and his co-defendants were arrested in connection with high profile terrorist offences. In the event B pleaded guilty and came to be sentenced (unusually) before the trial of his co-defendants. The Judge (who was both the Judge sentencing B and the trial Judge in respect of the co-defendants) made an order under s.4(2) of the CCA 1981 postponing any reporting of the sentencing hearing and decision on the ground of a


substantial risk of prejudice to the administration of justice. The order permitted reporting of the fact and basis of B’s guilty plea, perhaps unsurprisingly, given that these matters, together with detailed evidence of his activities were (as was not in dispute) admissible at the trial of the co-defendants. This court allowed the appeal of various media parties against the s.4(2) order.

52. Sir Igor Judge P (as he then was) emphasised (at [25)] that responsibility for avoiding the publication of material which might prejudice the outcome of a trial “rests fairly and squarely on those responsible for the publication”. He went on (ibid) to say this:

“ …broadcasting authorities and newspaper editors should be trusted to fulfil their responsibilities accurately to inform the public of court proceedings, and to exercise sensible judgment about the publication of comment which interfere with the administration of justice.”

Otherwise, they were exposed to the risk being in contempt of court, not a risk “which any responsible editor would wish to take”. In itself that was an important safeguard and was not to be overlooked “simply because there are occasions when there is widespread and ill-judged publicity in some parts of the media”.

53. The Court then posed the question as to whether a fair and accurate report would be prejudicial if published at the pre-trial stage. The President referred (at [28]) to Montgomery (supra), observing that in that case the court had been looking “backwards” rather than “forwards” to the very high level of publicity. Allowing the appeal, he expressed the Court’s conclusions in these terms:

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


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

54. A more recent Scottish decision – by now in the internet age – is that in Fraser v HM Advocate [2013] HCJAC 117. This case concerned a re-trial which followed the quashing of the appellant’s conviction of murder; much publicity had been attracted, in particular after the quashing of the appellant’s conviction.

55. A preliminary point to halt the re-trial was unsuccessfully argued before Lord Bracadale who underlined (at [29]) the “focusing effect of listening to evidence over a prolonged period”; that was a “powerful safeguard”. This focusing effect was not a “polite fiction”:

“ It seems to me that listening to the evidence and hearing it being tested in cross-examination in the immediacy of the court environment will be likely to focus the minds of jurors on what they are hearing in court. This is more likely … to dispel notions that they may have picked up from reading prejudicial material, rather than to reinforce preconceived views. ”

56. The appellant was tried and convicted; he appealed to the High Court against conviction. The appeal was dismissed. The Lord Justice Clerk (at [54]) highlighted the impact of the internet on the ability of jurors to discover information about the appellant. He then emphasised the importance of the “strategy” adopted by the courts, in the form of directions, to combat the possibility of jurors conducting their own web searches ([55]). He continued as follows (at [56]):

“ Jurors are adults. They have a collective intelligence. Of course, a rogue juror may decide to disregard the admonitions of the trial judge. If that is shown to have occurred, there may be an arguable ground of appeal. However, it is not to be assumed that this will occur….. ”

57. In summary, over and above the responsibility of the media to avoid inappropriate comment which may interfere with the due administration of justice, three safeguards can be discerned in respect of the impact on juries of media publicity:

i) The conduct of the trial by the trial Judge, including, in particular, appropriate directions to the jury - as to not conducting internet searches and, in any event, to focus on and only on the evidence in the case rather than anything they might have seen or heard outside of the trial;

ii) The “focusing effect” (per Lord Bracadale) of listening to evidence over a prolonged period in the “immediacy of the court environment”;

iii) The integrity of juries and their own commitment to the fairness of the trial process.


Decision

58. Looking at this appeal in the round, two features loom large. The first is that the CCTV footage in question was played extensively to the jury, in open court and without any restriction. Why it might be asked, as a matter of common sense, should it not be released to the media without more ado? The second is the Judge’s understandable concern not to prejudice the fairness of a high profile jury trial, leading him, as a matter of timing, to refuse access to the material in question until after verdicts have been given. Did the Judge strike the right balance? If not, what balance should we strike?

59. In our judgment, principle and authority furnish a strong launching pad for the Media Organisations’ case. First, the “default position” (Guardian, supra) is that access should be permitted to “documents” placed before the Court on the open justice principle. “Documents” include CCTV footage (CPD 2015, para. 5B.3). Secondly, the request here was made for the purpose of contemporaneous reporting - an important facet of the open justice principle and promoting public confidence in the administration of justice (In re S, supra and CPD 2015, para. 5B.9). Thirdly, the responsible media’s role as “public watchdog” is explicitly recognised in the CPD 2015, so that the “general principle” is that documents should be supplied in response to a request from such a party, unless there is a good reason for not doing so (para. 5B.26). Fourthly, all these considerations apply with particular force to a case of considerable public interest such as the present, involving, as it does, a death in custody.

60. As is clear from the Note of his careful ruling, most or all of this was accepted by the Judge.

61. Further and though in no way decisive, the Media Organisations’ request in this case enjoys additional support from the attitude of others – the prosecution (perhaps unsurprisingly in the light of the CPS/Media Protocol), police bodies and the deceased’s family.

62. The Media Organisations submitted that release of the CCTV material was “necessary” for accurate and effective reporting. For our part, we think that this may be put too high; we have reservations as to whether a claim of necessity can be made good. Withholding the CCTV material plainly does not prevent accurate, effective and contemporaneous reporting, summarising what has been shown to the Court in that material. That said, there are a number of points –falling short of strict necessity – which can nonetheless be made in support of the Media Organisations’ request:

i) First, as underlined by the CPD 2015, para. 5B.30, it is not for the Court to exercise “editorial judgment” as to the adequacy of the material already available for journalistic purposes.

ii) Secondly, the most effective manner of accurately, fairly and contemporaneously reporting the proceedings in this trial – given the centrality of the CCTV material – is by way of that material itself. As it seems to us, there is something artificial and unsatisfactory in refusing access to the material which really matters.


iii) Thirdly, in the light of the CPD 2015 it is plainly no bar to the release of the CCTV material that it is or may be characterised as an “exhibit” or form part of the Jury Bundle: see para. 5B.17.

iv) Fourthly, though the application of the open justice principle is a matter for the court’s inherent jurisdiction and the practice of the court is “not frozen” (Guardian, supra), on the evidence, the request here is in no sense breaking new ground. There was, before us, uncontradicted evidence that in a number of high profile cases, material or footage central to the prosecution case was released to the media as soon the footage or material had been shown to the jury; examples include the “Liquid Bombers”, PC Simon Harwood (death of newspaper vendor, Mr. Tomlinson), Lee Rigby, Shauna Hoare and Nathan Matthews (murder of Becky Watts), and Duffy (murder of refugee following unavailing requests to the police for help).

63. Against this background, we come to the balancing of conflicting rights and principles to be conducted in the individual case, in accordance with the guidance contained in the CPD 2015. As already recorded, the Judge’s reasons for refusing the application in respect of those materials set out in paras. 1 a) and 1 b) of the Order, are to be found in paras. 27 – 31 of the Note of his ruling. We remind ourselves that our task is not merely to review the Judge’s decision but to come to our own independent conclusion (Archbold, at para. 7-325; Ex p Telegraph Group [2001] EWCA Crim 1075; [2001] 1 WLR 1983, at [3]). Even so, we differ from the decision of the trial Judge on a ruling such as this, made in the course of an ongoing trial, with reluctance. With respect, however, it is here, at the balancing stage, that the Judge fell into error. While acknowledging the justifiable caution required to avoid prejudicing the fairness and safety of the trial, we are unable to accept that the facts before the Judge demonstrated the risks upon which he relied in coming to his decision. On this narrow ground, we are driven to the conclusion that the Judge’s analysis cannot be sustained. Our reasons follow.

64. First and at the outset, we can dispose rapidly of the city centre footage, to which access was refused under para. 1 a) of the Order. None of the defendants feature at all in this footage. We cannot therefore see any risk to the trial process or, indeed, any basis for refusing access to this material.

65. Secondly and turning to the custody suite material falling under para. 1 b) of the Order, the Judge dealt separately with (1) the responsible media and (2) the social media. We begin with the responsible media.

66. Rightly, in our judgment, the Judge (at [27]) accepted that the responsible media would not go further than “…playing the footage (or extracts from it), or publishing stills from it”. The risk, as the Judge perceived it, lay in the jury seeing this key evidence, other than when together in court or in the jury room; notwithstanding a direction he could give, it would be “unrealistic” if they did so, to believe they would be able to put it out of their minds: [27], [28] and [31].

67. With respect, we cannot agree.

i) The critical point is that this CCTV footage had been extensively considered in open court. Here, by the time of the hearing before us, it was said that the jury


had spent some 2 days in court doing so. As the trial proceeded and before the conclusion of the defendants’ evidence, it is highly likely that more time will have been taken.

ii) As it seems to us, Lord Bracadale’s observation in Fraser (supra), that the “focusing effect of listening to evidence over a prolonged period” in the “immediacy of the court environment” will serve as a “powerful safeguard”, is strikingly and directly in point.

iii) After so prolonged a period considering this material in court, we are unable to accept that there is any real risk of the jury being swayed by any references to it which they might encounter out of the court and the jury room, whether in the press or on television. This is far removed from a case where, for example, some peripheral material is briefly shown in court, to which disproportionate importance might be attached if widely published in the media.

iv) In any event, this is a classic instance where it is both necessary and appropriate to “trust the jury”. There is ample scope for an appropriate direction, reminding the jury that the concentrated viewing in court has given them the best opportunity to consider the CCTV material fully and fairly and that they should neither be distracted by, nor should they take into account, any snippets of the same material which they might see elsewhere, when not together in the jury room. For the reasons given in Montgomery, Re B and Fraser (all supra), there is no reason to suppose that any such direction would not be followed or that they would do otherwise than return true verdicts in accordance with the evidence. Experience supports a robust approach in this regard.

68. We turn next to the risk posed by social media, dealt with by the Judge at [28] of his ruling. There, the Judge referred to “a real and not a fanciful risk that the footage will ….go viral on social media, where the risk of distortion and comment is very real”.

69. As a matter of generality, the Judge’s anxiety as to social media is readily understood. But there is a short answer on the facts of this case. Neither before the Judge (so far as we are aware), nor before us, was there any evidence of social media comment as to this trial, giving rise to a real risk of the footage, once released, going viral. In the absence of such evidence, this risk is no more than speculative and incapable of supporting the Judge’s decision to withhold release of the footage until after verdicts have been given. Our view is reinforced by the following further considerations:

i) It is not the release of the CCTV material which poses the risk to the fairness of the trial. It is, instead, the misuse of such material by individuals on social media. We reiterate the observation in the CPD 2015, at para. 5B.30, that responsibility for complying with the CCA 1981 and any and all restrictions on the use of the material rests with the recipient. In Ex parte BBC, the torrent of “vile” social media comment proved overwhelming; even were there to be social media comment on this case, there is no evidence whatever that the scale of the risk would be comparable.

ii) So far as concerns any risk of jury members intentionally researching social media in breach of the direction already given by the Judge (see the Judge’s


ruling at [28]), such research would (prima facie) give rise to a criminal offence under s.20A and/or s.20B of the Juries Act 1974 (as amended).

iii) With regard to the risk of jury members coming across social media comment either intentionally or “inadvertently” (the Judge’s ruling, at [28]), our earlier observations as to trusting the jury apply and need not be repeated here.

70. For completeness, we address [29] and [30] of the Judge’s ruling. As will already be apparent and whether or not the CCTV footage is strictly “essential” to contemporaneous reporting, we differ from the Judge’s approach at [29], not least because it appears to stray into the territory of editorial judgment. While it is correct, as the Judge observed at [29] and [30] of his ruling, that the timing of the release is a matter for the Court and his decision was (essentially) to refuse release until the conclusion of the trial rather than indefinitely, for the reasons already given, we cannot uphold the risk analysis upon which that decision rested.

71. It follows that the Judge’s ruling could not stand. It did not follow that the CCTV footage should be released immediately or unconditionally. Instead, having particular regard to timing and practicalities, we addressed the release of the footage in a number of ways, as appears from the paragraphs which follow.

72. First, we accepted the submission advanced by the Second and Third Defendants, that release of the CCTV material should be delayed until after the conclusion of the evidence of all three defendants. The First Defendant had concluded his evidence before our Ruling but the Second and Third Defendants had not. We were anxious to ensure a “level playing field” for all three defendants and determined to avoid even the perception of injustice as between Defendants. We also had very much in mind the concluding words of the CPD 2015, para. 5B.9 and took the view that, given the stage the trial had already reached when the matter came before us, the conclusion of the evidence was the point in the trial when any risk posed by release of the material (if such risk there was) could best be managed.

73. Secondly, out of an abundance of caution and, again, given the well-advanced stage the trial had already reached by the time the matter was before us, we accepted the prosecution submission that we should make a similar order to that made by this Court in Ex parte BBC. We do not regard such an order as commonplace or routine. As to detail, we add the following further comments:

i) To avoid any jurisdictional debate, we made our order under s.45(4) and/or s.37 of the SCA 1981.

ii) Given our understanding of the position and role of the Press Association, we did not incorporate any reference to that Association in our order.

74. Thirdly, as appears from our Ruling (attached at Annex A), we expressly invited the trial Judge to consider such further directions to the jury as might be appropriate to deal with the release of the CCTV material.

75. It follows that, for the essentially narrow reasons set out above, we allow the Media Organisations’ appeal on the terms set out in our Ruling and order.


76. We offer two final more general observations by way of postscript. First, on the facts of this case, we have upheld the Media Organisations’ appeal; there will, however, be other cases where – whether because of the interests of victims or the risk of prejudice to the fairness of the trial – release of material such as CCTV footage may not be appropriate, even though played in open court, either at all or before the conclusion of the trial. In each case, a balancing exercise will be required, as envisaged by the CPD 2015. Secondly, this is especially so because much work and thought is plainly still required in order to address the tensions between (1) the importance of contemporaneous reporting to the open justice principle on the one hand and (2) the risks (when made out on the facts) posed by social media comment to the fairness of the trial process on the other; this must be regarded as unfinished business.


ANNEX A

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

201600621B2, 201600625B2, 201600624B2, 201600622B2, T20157084

16/2/2016

BEFORE:

LORD JUSTICE GROSSMR JUSTICE GLOBEHHJ BURBIDGE QC

(SITTING AS A JUDGE IN CACD)

Between :

REGINA

-v-

JAN KINGSHOTTMICHAEL MARSDEN

SIMON TANSLEY

_______________________________________

RULING__________________________________

1. Pursuant to s.4(2) of the Contempt of Court Act 1981, the publication of any report of this Ruling, or any part of it, be postponed until after the conclusion of the evidence of the Third Defendant.

2. The decision of this Court is as follows.

3. The Court allows the appeal and permits the Media Organisations to have access to the CCTV footage (and still images thereof) (“the CCTV material”) set out at paragraphs 1a) and b) of the Order of King J, dated 28th January, 2016, subject to the following provisos:

i) Such access is not to be granted until the conclusion of the evidence of the Third Defendant;


ii) Given the timing of this appeal, the Media Organisations, until verdicts in the trial or further order, are ordered under s.45(4) and/or s.37 of the Senior Courts Act 1981 (a) not to place any report of the criminal trial on their respective Facebook profile page or pages; and (b) to disable the ability for users to post comments on their respective news websites on any report of the criminal trial published by the media organisations on their websites.

4. The publication of any report of the Appeal Proceedings, or any part of the Appeal Proceedings, shall be postponed until after:

i) Verdicts in this trial, R –v- Kingshott and others; and

ii) Verdicts in the retrial of R –v- F and D (at Teeside; Indictment T20147608).

The Order dated 10th February, 2016 under s.4(2) of the Contempt of Court Act 1981, is varied accordingly.

5. This Court invites King J (no doubt after discussion with the parties and the Media Organisations) to consider such directions to the jury as might be appropriate to deal with the release of the CCTV material.

6. The Court underlines that the responsibility for compliance with the Contempt of Court Act 1981 (and any other restrictions in force) rests with the Media Organisations and any other person having access to the CCTV material.

7. A detailed judgment will be given in due course.

8. The Court requests the parties and the Media Organisations to draw up an order reflecting the terms of this Ruling.

SUBJECT TO REPORTING RESTRICTIONS