Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 34324/96

by BRITISH BROADCASTING CORPORATION SCOTLAND,

Neil McDONALD, Murdoch RODGERS and Susan DONALD

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 23 October 1997, the following members being present:

Mrs J. LIDDY, President

MM M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 8 October 1996 by

BRITISH BROADCASTING CORPORATION SCOTLAND, Neil McDONALD, Murdoch

RODGERS and Susan DONALD against the United Kingdom and registered on

19 December 1996 under file No. 34324/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The first applicant is the British Broadcasting Corporation in

Scotland (BBC Scotland). The second, third and fourth applicants, who

are all resident in Scotland, are respectively the editor, producer and

presenter of a television programme series entitled "Frontline",

produced by BBC Scotland. The applicants are represented before the

Commission by Mr. Alistair Bonnington, a solicitor employed by BBC

Scotland, with offices in Glasgow. The facts of the application, as

submitted by the applicants' representative, may be summarised as

follows.

A. The particular circumstances of the case

In October 1995 the applicants produced and broadcast a

television programme entitled "Frontline Scotland", which included a

feature entitled "Beaten by the System". The feature concerned

allegations that prisoners, who had been involved in prison riots in

July 1993 and January 1994 in two Scottish prisons, had been assaulted

by prison officers when they had been removed to Barlinnie prison,

Glasgow. The applicants intended to broadcast a further programme in

the "Frontline Scotland" series on 30 May 1996. That programme was to

include an update on the feature previously broadcast, again under the

title "Beaten by the System" ("the broadcast").

On 9 May 1996 the Lord Advocate in Scotland served an indictment

on three prison officers ("the prison officers") at Barlinnie prison

alleging that they, whilst acting along with others, assaulted six

named prisoners in the segregation unit at Barlinnie prison on

5 January 1994. The trial of the prison officers was to be heard before

a jury at Glasgow High Court on 17 June 1996.

The prison officers presented a petition to the High Court of

Justiciary in Edinburgh on 30 May 1996. The petition asked the High

Court of Justiciary to use its powers of "nobile officium" (inherent

equitable jurisdiction):

"to prohibit the [first applicant] from broadcasting or causing

to be broadcast in Scotland, until the completion of the trial

of [the prison officers], the feature in "Frontline Scotland

Update" entitled "Beaten by the System".

The intervention of the High Court was sought on the grounds that

the broadcast would create a substantial risk that the course of

justice in the proceedings against the prison officers would be

seriously impeded or prejudiced.

The prison officers specifically stated in their petition that

the broadcast:

"would tend to create in the minds of persons who may be called

as potential jurors to try [the prison officers] the impression

that as a matter of course, when prisoners are moved to Barlinnie

prison after a riot, they are assaulted by prison officers in

Barlinnie prison; and that [Dr.S.D] who is a Crown witness in the

case against [the prison officers], is a person whose

credibility, reliability and expertise is enhanced by the

contents of the proposed broadcast."

The broadcast contained no reference to any of the charged prison

officers or to any of the prisoners whom they were alleged to have

assaulted, and no reference was made to the proceedings that were

pending against the prison officers. During the programme Dr. S.D.,

then a prison doctor, was interviewed and expressed his opinion that

the injuries sustained by a certain prisoner were consistent with that

prisoner's account of being kicked and beaten (the prisoner was not a

complainant in the trial of the prison officers). The programme

informed the viewer that Dr. S.D. had been dismissed from his

employment subsequent to his appearance on the programme, despite

having the backing of the British Medical Association and the European

Committee for the Prevention of Torture.

The judgment of the High Court was delivered on 30 May 1996. It

stated, inter alia:

"In our view, the Court does have power under the nobile officium

to make such an order even if it is not formally [in] a contempt

of court under the terms of the Contempt of Court Act 1981. If

this Court, as the High Court of Justiciary, which has under its

protection persons who have been charged by Her Majesty's

Advocate, considers that there is a risk of prejudice to the

trial of such a person then, in our view, this Court has power

to prevent such prejudice from occurring by such means as are

appropriate...

On the whole matter we are satisfied that there is a more than

minimal risk of prejudice to [the prison officers] at their trial

if this programme is broadcast. There is a distinct risk that one

at least out of the fifteen jurors may get the impression from

this programme that [Dr.S.D.] is a witness of considerable credit

whose views should be taken to be of great importance although

that doctor's view may well be challenged during the course of

the trial. ... The only reason why this programme is sought to

be broadcast tonight is not because it is a matter of immediate

public concern, it is simply because this is the last programme

in the series of "Frontline Scotland" and it would be

inconvenient to postpone the matter to the autumn. There is

therefore no question of urgency arising in the broadcasting of

this programme.

In the whole circumstances we are entirely satisfied that it

would be appropriate in this case to make ... an order

prohibiting [the broadcast]... in Scotland, until the completion

of the trial of [the prison officers]..."

The High Court accordingly granted an order prohibiting the

broadcasting in Scotland, until the completion of the trial of the

prison officers, of the feature "Beaten by the System" in "Frontline

Scotland Update".

B. Relevant domestic law

The concept of "nobile officium" in Scots law is an extraordinary

equitable power vested in, inter alia, the High Court of Justiciary.

The applicants submit the following judicial description of the

jurisdiction of "nobile officium":

"wherever the interposition of some authority is necessary to the

administration of justice, and there exists no other judicature

by whom it can competently be exercised, or which has been in use

to exercise it, the Court of Justiciary is empowered and bound

to exercise its powers [of "nobile officium"], on the application

of the proper party, for the furtherance of justice".

The Contempt of Court Act 1981 ("the 1981 Act") creates a defence

to a charge of contempt of court. Where the act applies, by virtue of

Section 2 (2), a publication will only be in contempt of court if it

creates a:

"substantial risk that the course of justice in the proceedings

in question will be seriously impeded or prejudiced".

By Section 5 of the 1981 Act:

"A publication made as or part of a discussion in good faith of

public affairs or other matters of general public interest is not

to be treated as a contempt of court under the strict liability

rule if the risk of impediment or prejudice to particular legal

proceedings is merely incidental to the discussion."

COMPLAINTS

The applicants contend that the order of the High Court of

Justiciary in Scotland prohibiting the broadcast, constituted an

interference with freedom of expression and a violation of Article 10

of the Convention. They complain that the order was not "prescribed by

law" in accordance with Article 10 para. 2 of the Convention, as there

was no finding that the broadcast was a contempt of court under the

1981 Act, rather the prohibition of the broadcast was effected by the

Court using their inherent equitable jurisdiction, "nobile officium".

The applicants further contend that the prohibition of the broadcast

can not be considered "necessary in a democratic society", and that any

risk of prejudice to the prison officers' right to a fair trial, due

to the broadcast, was not sufficiently serious to counterbalance the

public interest in freedom of expression in a democratic society.

THE LAW

The applicants complain that the order of the High Court of

Justiciary prohibiting the broadcast, constituted a violation of

Article 10 (Art. 10) of the Convention.

Article 10 (Art. 10) of the Convention provides as follows.

"1. Everyone has the right to freedom of expression. This right

shall include freedom to hold opinions and to receive and impart

information and ideas without interference by public authority

and regardless of frontiers. This Article shall not prevent

States from requiring the licensing of broadcasting, television

or cinema enterprises.

2. The exercise of these freedoms, since it carries with it

duties and responsibilities, may be subject to such formalities,

conditions, restrictions or penalties as are prescribed by law

and are necessary in a democratic society, in the interests of

national security, territorial integrity or public safety, for

the prevention of disorder or crime, for the protection of health

or morals, for the protection of the reputation or rights of

others, for preventing the disclosure of information received in

confidence, or for maintaining the authority and impartiality of

the judiciary."

The Commission would first note that in previous cases it has

left open the question of whether the British Broadcasting Corporation

has the necessary status to bring an application to the Commission

(see, for example, No. 25798/94, Dec. 18.1.96). The question need not

be determined in relation to BBC Scotland in the present case, either,

as the application is in any event inadmissible for the following

reasons.

The Commission considers that the order of the High Court of

Justiciary prohibiting the broadcast constituted an interference with

the applicants' freedom of expression under Article 10 para. 1

(Art. 10-1) of the Convention.

The Commission recalls that such an interference will constitute

a violation of Article 10 (Art. 10) if it does not fall within one of

the exceptions provided for in paragraph 2 of Article 10 (Art. 10-2).

The Commission therefore has to examine in turn whether the

interference in the present case was: prescribed by law, in pursuance

of a legitimate aim, and was necessary in a democratic society (see

Eur. Court HR, Sunday Times v. the United Kingdom judgment of 26 April

1979, Series A no. 30, p. 29, para. 45).

The Commission considers, and the applicants accept, that the

interference was in pursuance of a legitimate aim, that is the

protection of the right of the prison officers to a fair trial. It was

therefore "for the protection of the reputation and rights of others

... or for maintaining the authority and impartiality of the

judiciary".

The applicants however contend that the interference was neither

"prescribed by law" nor "necessary in a democratic society".

The Commission will first consider whether the order was

"prescribed by law". The Commission recalls that the word "law" in the

expression "prescribed by law" covers not only statute but also

unwritten law. The Commission thus considers that the fact that the

High Court of Justiciary did not prohibit the broadcast as a contempt

of court under the 1981 Act, but rather used their powers under their

inherent jurisdiction of "nobile officium" is not, of itself,

inconsistent with the order prohibiting the broadcast being "prescribed

by law". However in order to be "prescribed by law", within the meaning

of Article 10 para. 2 (Art. 10-2), the law must be adequately

accessible and formulated with sufficient precision to enable the

citizen to regulate his conduct (see the above-mentioned Sunday Times

v. the United Kingdom judgment, pp. 30-31, paras. 47 & 49).

With regard to the questions of accessibility and foreseeability

the Commission notes that the power of "nobile officium" has been

described by the High Court of Justiciary, and is quoted by the

applicants, in the following terms:

"wherever the interposition of some authority is necessary to

the administration of justice, and there exists no other

judicature by whom it can competently be exercised, or which has

been in use to exercise it, the Court of Justiciary is empowered

and bound to exercise its powers, on the application of the

proper party, for the furtherance of justice."

The general ground on which the prison officers sought the

intervention of the High Court of Justiciary was that the proposed

broadcast would:

"create a substantial risk that the course of justice in the

proceedings against the petitioners would be seriously impeded

or prejudiced."

The Commission considers that in the circumstances, the power of

"nobile officium", was formulated with sufficient precision, and the

risk that this power would be used to forbid the broadcast was

sufficiently foreseeable.

The interference with the applicants' freedom of expression was

thus "prescribed by law" within the meaning of Article 10 para. 2

(Art. 10-2).

With regard to whether the interference was "necessary in a

democratic society", the Commission recalls that it is necessary to

consider whether the "interference" complained of corresponded to a

"pressing social need", whether the interference was "proportionate to

the legitimate aim pursued" and whether the reasons given by the

national authorities to justify it were "relevant and sufficient under

Article 10 para. 2 (Art. 10-2) (see Eur. Court HR, Handyside v. the

United Kingdom judgment of 7 December 1976, Series A no. 24, pp. 22-24,

paras. 48-50).

The Commission notes that the High Court of Justiciary carried

out a balancing act. They considered that the broadcast of the

programme represented a more than minimal risk of prejudice to the

prison officers at their trial, due in particular to the fact that the

programme featured, and arguably gave enhanced credibility in the minds

of jurors, to Dr. S.D., a key witness against the prison officers. In

addition, the High Court considered that the subject matter of the

broadcast was not a matter of immediate public concern and there was

no urgency in the broadcast, which could be postponed until after the

trial of the prison officers. The Commission notes that the order did

not prohibit the broadcast from ever being shown, it merely postponed

its showing until after the trial of the prison officers.

The Commission considers that in the circumstances the

interference corresponded to the "pressing social need" of ensuring a

fair trial for the prison officers, and that it was "proportionate to

the legitimate aim pursued" in that the broadcast was merely postponed.

Moreover, High Court gave "sufficient and relevant reasons" for its

judgment.

In these circumstances the Commission considers that the

interference with the applicants' freedom of expression was necessary

in a democratic society.

It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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BRITISH BROADCASTING CORPORATION SCOTLAND, McDONALD, RODGERS AND DONALD v. THE UNITED KINGDOM

BRITISH BROADCASTING CORPORATION SCOTLAND, McDONALD, RODGERS AND DONALD v. THE UNITED KINGDOM

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