Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25798/94

by the BRITISH BROADCASTING CORPORATION

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 18 January 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 1 November 1994

by the BRITISH BROADCASTING CORPORATION against the United Kingdom and

registered on 29 November 1994 under file No. 25798/94;

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 applicant in the present case is the British Broadcasting

Corporation ("the BBC"), which was established by Royal Charter in

1927. It is represented before the Commission by Ms. G.E. Phillips,

of its litigation department, and Mr. D. Pannick, QC, of counsel. The

facts of the case, as submitted by the BBC's representatives, may be

summarised as follows.

On 20 April 1994 a witness summons was issued to the BBC in the

context of criminal proceedings against two policemen for conspiracy

to pervert the course of justice in connection with investigations into

the death of PC Keith Blakelock during a major riot at Broadwater Farm,

Tottenham, London, on Sunday 6 October 1985. The witness summons

required the BBC to attend court and to produce "all material in your

possession or control (whether transmitted or untransmitted) of or

related to the disturbances at Broadwater Farm Estate, Tottenham, North

London taken on the 6th or 7th October 1985." The summons was later

amended to relate only to 7 October, and was limited to film taken

during daylight hours.

The BBC challenged the witness summons under Section 2 of the

Criminal Procedure (Attendance of Witnesses) Act 1965, which permits

application for a declaration that a summons is of no effect where the

applicant (the potential witness) can satisfy the court "that he cannot

give any material evidence or, as the case may be, produce any document

or thing likely to be material evidence".

As the trial judge was not available, the BBC's application was

heard by the Recorder of London, on 3 June 1994. After hearing the

representatives of the BBC and the defendants and the prosecution to

the criminal case, the Recorder adjourned the case to 8 June 1994 for

the defence to have the opportunity to identify anything in the film

material which they wished to have produced in court, and for the BBC

then to have the opportunity to say in court why they did not wish to

produce it.

On 8 June 1994, counsel for the BBC explained that the BBC had

looked through the film and had found nothing which approximated to WS

(who had been convicted of the murder of PC Blakelock) in the

untransmitted material. The prosecution objected that they had not had

the opportunity to consult the films.

At the end of the proceedings on 8 June 1994, the Recorder made

the following ruling:

"The application was to set aside the summons on the ground that

it was not sufficiently specific. I think there can be no doubt

in anyone's mind now as to what it is that the defence are

seeking to have disclosed. It has been identified ... by the BBC

and can easily be viewed.

I put the matter back without making a specific order on the last

occasion. I put it back so there could be co-operation. I do

not find that there has been co-operation in the terms which were

discussed. ..."

The order applied for by the BBC was therefore not made, and the

BBC was ordered to disclose the film material to the defence within

24 hours. The BBC requested and was refused costs from central funds.

COMPLAINTS

The BBC alleges that the requirement to disclose material which

had been filmed on 7 October 1985 at the Broadwater Farm riots violated

Articles 6 and 10 of the Convention.

Under Article 6 of the Convention, the BBC contends that the

application to set aside the witness order determined its civil

obligations to provide access to the film material, and that in the

context of this determination, the principle of "equality of arms" was

not met. In particular, it complains that it was not permitted to know

why the untransmitted material was said to be potentially relevant to

the issues in the criminal trial, and hence that it could not make

proper submissions as to why the untransmitted material should not have

been disclosed.

Under Article 10 of the Convention, the BBC submits that the

refusal to set aside the witness summons was an interference with the

BBC's freedom of expression because it required the disclosure of

information obtained, despite the considerable risks which this creates

for journalists and film crews. The BBC considers that the

interference with freedom of expression was not prescribed by law in

that the procedure adopted by the Crown Court was arbitrary, and that

it was not necessary in a democratic society because there was no

reason to think that the material which the defendants in the criminal

case wished to see could assist the defence at the criminal trial, or

because it was not necessary to impose an obligation on the BBC to

disclose without giving the BBC a proper opportunity to know the issues

in the criminal trial.

THE LAW

1. The BBC alleges a violation of Article 6 para. 1

(Art. 6-1) of the Convention in connection with the proceedings in

which it challenged a witness summons requiring it to produce evidence

at a criminal trial. Article 6 para. 1 (Art. 6-1) provides, so far as

relevant, as follows:

"1. In the determination of his civil rights and obligations or

of any criminal charge against him, everyone is entitled to a

fair and public hearing ..."

The Commission has considered whether the BBC is a "person, non-

governmental organisation or group of individuals" within the meaning

of Article 25 (Art. 25) of the Convention. However, the Commission is

not required to determine this question in the present case as,

assuming that the BBC does have the necessary status to bring the

application, the application is nevertheless inadmissible for the

following reasons.

The BBC was required to produce filmed material in the context

of criminal proceedings which had been brought against two policemen.

There was therefore no determination of a criminal charge against the

BBC. If Article 6 (Art. 6) is to apply to the proceedings in which the

BBC challenged the witness summons, those proceedings must therefore

have determined the civil rights or obligations of the BBC.

The BBC submits that the proceedings determined its civil

obligation to provide access to the film material.

The Commission recalls that it has previously held that an order

for costs made against a lawyer who appeared as representative in

criminal proceedings did not determine the civil rights and obligations

of the lawyer concerned, the order being made in the context of the

administration of justice and the proper organisation of the work of

the courts (No. 10615/83, Dec. 3.7.94, D.R. 38, p. 213). It further

recalls that obligations, even of a pecuniary nature, have been held

by the Court not to be covered by the notion "civil rights and

obligations" where they are regarded as forming part of normal civic

duties in a democratic society (Eur. Court H.R., Schouten and Meldrum

judgment of 9 December 1994, Series A no 304, para. 50).

The Commission considers that similar reasoning is applicable to

the present case. The duty to give evidence in criminal proceedings

is a good example of one of the normal civic duties in a democratic

society: any person may be called on to give evidence as to matters

witnessed by him, and, at least to the extent that he is not required

to say anything which may incriminate himself, may be compelled to give

evidence in the interests of the fair and proper administration of

justice. The order requiring the giving of such evidence does not

involve the determination of any civil obligations of the witness,

however, and the position is not different where, as in the present

case, the evidence consists of material which has been filmed rather

than an individual's oral testimony as to what he witnessed.

The proceedings in which the BBC challenged the witness summons

made against it did not, therefore, determine the BBC's civil rights

or obligations within the meaning of Article 6 para. 1 (Art. 6-1) of

the Convention, with the result that that provision is not applicable

to those proceedings.

It follows that this part of the application is incompatible

ratione materiae with Article 6 (Art. 6) of the Convention within the

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

2. The BBC also alleges a violation of Article 10 (Art. 10) of the

Convention, which provides, so far as relevant, as follows.

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

right shall include freedom ... to receive and impart information

and ideas without interference by public authority ...

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 ... for maintaining the

authority and impartiality of the judiciary."

The Commission recalls that in the case of Goodwin v. the United

Kingdom (No. 17488/90, Comm. Rep. 1.3.94, pending before the European

Court of Human Rights) it found that a disclosure order on a journalist

to reveal his sources constituted an interference with the right freely

to receive and impart information without interference by public

authority. The present case is different from the case of Goodwin,

since in that case the applicant had received information on a

confidential and unattributable basis, whereas the information which

the BBC obtained comprised recordings of events which took place in

public and to which no particular secrecy or duty of confidentiality

could possibly attach. The Commission will, however, assume an

interference with the BBC's Article 10 (Art. 10) rights for the

purposes of the present application.

An interference with the freedoms guaranteed by Article 10

para. 1 (Art. 10-1) of the Convention is permissible only if it is

"prescribed by law" and if it is "necessary in a democratic society"

on one or more of the grounds set out in Article 10 para. 2

(Art. 10-2).

The issuing of witness summonses in England and Wales is

regulated by Section 2 of the Criminal Procedure (Attendance of

Witnesses) Act 1965, which provides for the making of witness summonses

for a person to attend court and give evidence or produce documents or

things. The same provision enables a person to whom a witness summons

is addressed to challenge it on the ground that he "cannot give any

material evidence or, as the case may be, produce any document or thing

likely to be material evidence". The Commission therefore considers

that the witness summons in the present case - and the procedure

adopted by the Crown Court - was "prescribed by law" within the meaning

of Article 10 para. 2 (Art. 10-2) of the Convention.

As to whether the interference was "necessary in a democratic

society", the Commission has found, at para. 1 above, that the duty to

give evidence is a normal civic duty in a democratic society. In the

ordinary course of events, that duty will suffice to justify an

interference created by an obligation to testify on the ground that it

is necessary for the maintenance of the authority and impartiality of

the judiciary. The BBC considers that the present case is not an

ordinary case, because there was no reason to think that the material

which the defendants in the criminal trial wished to see could assist

the defence, and because it was not necessary to impose an obligation

on the BBC to disclose without it being given a proper opportunity to

know the issues in the criminal trial. The BBC also claims that the

obligation to disclose untransmitted material increases the risk for

film crews, as they will be associated with the law enforcement

agencies by by-standers if such material is subsequently liable to be

used in court.

The Commission recalls that, in a criminal trial, it is for the

judge to consider the evidence before the court, and to assess its

relevance and admissibility. The judge can only perform this function

if he has powers to require the production of evidence before the court

in the first place, and it was for this purpose that the witness

summons was made in the present case. The domestic law in the present

case enables the recipient of a witness summons to claim that he cannot

give any material help to the court, but ultimately it is for the

court, and not for the potential witness, to take the final decision

on the relevance of evidence. It is true that the discussions in the

present case were largely between the defence in the criminal case and

the BBC, rather than between the trial judge and the BBC, but the

principle is the same: the full picture should be before the criminal

court.

The Commission is not satisfied that the risks to film crews are

greater if untransmitted material is liable to be produced in court.

The Commission considers that any risk to film crews flows from their

presence at incidents such as the Broadwater Farm riots and from the

fact that they are filming such incidents, rather than from any

possibility that untransmitted material may subsequently be made

available to the courts.

Finally, the Commission does not accept the BBC's argument that

the interference was not "necessary" because the BBC did not fully know

the issues in the criminal trial. In particular, the Commission would

note that it will often be the case that a person giving evidence will

not fully appreciate the impact his evidence will have - that is a

matter for the court, rather than the individual witness.

Accordingly, the Commission finds that any interference with the

BBC's Article 10 (Art. 10) rights was "prescribed by law" and was

"necessary in a democratic society" for "maintaining the authority and

impartiality of the judiciary".

It follows that this part of 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.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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BRITISH BROADCASTING CORPORATION v. THE UNITED KINGDOM

BRITISH BROADCASTING CORPORATION v. THE UNITED KINGDOM

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