AS TO THE ADMISSIBILITY OF

Application No. 14132/88

by C. Ltd

against the United Kingdom

        The European Commission of Human Rights sitting in private on

13 April 1989, the following members being present:

                MM.  S. TRECHSEL, Acting President

                     F. ERMACORA

                     G. SPERDUTI

                     E. BUSUTTIL

                     G. JÖRUNDSSON

                     A.S. GÖZÜBÜYÜK

                     J.C. SOYER

                     H.G. SCHERMERS

                     H. DANELIUS

                     J. CAMPINOS

                     H. VANDENBERGHE

                Mrs.  G.H. THUNE

                Sir  Basil HALL

                MM.  F. MARTINEZ

                     C.L. ROZAKIS

                Mrs.  J. LIDDY

                Mr.  L. LOUCAIDES

                Mr.  H.C. KRÜGER, Secretary to the Commission

        Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 15 June 1988 by C. Ltd

against the United Kingdom and registered on 23 August 1988 under file No.

14132/88;

        Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

        Having deliberated;

        Decides as follows:

THE FACTS

        The applicant is a television company with its registered

office in London.  It is represented by Jonathan Caplan, a barrister

practising in London.  The facts as submitted by the applicant may be

summarised as follows.

        In 1987, the Secretary of State for Home Affairs referred the

cases of six men, who had been convicted of causing explosions as

members of the I.R.A. in two Birmingham public houses in November

1984, to the Court of Appeal (Criminal Division) in London pursuant to

his powers under the Criminal Appeal Act 1968.  These reference

proceedings commenced on 2 November 1987 before the Lord Chief

Justice, Lord Justice O'Connor, and Lord Justice Stephen Brown and

they concluded on 9 December 1987 when the Court announced that it

would reserve its judgment which would be given on a later date.

During the proceedings, the Court heard fresh evidence from numerous

witnesses and also submissions from counsel for both the Appellants

and the Crown.

        Prior to the commencement of the reference proceedings, the

applicant entered into correspondence with the Assistant Registrar to

the Court, with the Director of Public Prosecutions and with the Lord

Chancellor's Department informing them that the applicant had

commissioned Dennis Woolf Productions Limited to produce a programme

which would be based exclusively on the official shorthand transcripts

and which would re-enact parts of the proceedings using actors in an

authentic courtroom setting.

        The applicant scheduled the completed programme for

broadcasting on Channel 4 on Thursday, 3 December 1987 between 10.45

p.m. and 12.15 a.m. on 4 December.  By that time, the evidence had

been concluded but counsels' closing submissions were still in

progress.

        On the morning of 3 December, the applicant was informed by

the Attorney-General's department that counsel on behalf of the

Attorney-General proposed to apply to the Court of Appeal which was

hearing the reference proceedings at mid-day for an injunction

restraining them from broadcasting the programme.  The application was

duly made ex parte although the applicant was represented by counsel

and allowed to address the Court.  Counsel for the Attorney-General

said that the application was being made because "the intimate

portrayal of events inside the Court room" prior to judgment was

"bound to create the risk of undermining the public's confidence that

the Court gets it right".  It was conceded that the reference

proceedings before the Court of Appeal could not in any way be

prejudiced since the tribunal was composed of three professional

judges.

        The Court of Appeal granted the injunction on 3 December

thereby restraining the applicant "from broadcasting any enactment of

any part of the Court proceedings in the current appeal Regina v.

Callaghan and others until further order".  In giving the judgment of

the Court, the Lord Chief Justice inter alia said that the programme

would necessarily be "highly selective", was "intended to entertain",

would "thrust upon the public ... an intimate impression of the

reliability or unreliability" of the witnesses, and was "likely to

undermine public confidence" in the Court.  The Court had not viewed

the programme, no affidavit had been filed by the applicant and the

only evidence before the Court was two short mentions about the

programme in the Observer and in the Times Newspapers which had been

written by journalists who themselves had not seen the programme.

        On 16 December 1987, the applicant applied to the same Court

of Appeal for the injunction to be discharged.  The applicant placed

before the Court the Affidavits of Elizabeth Forgan (the applicant's

Deputy Director of Programmes) and of Dennis Woolf (the producer)

which set out in detail the purpose of the programme, its reliance on

the official shorthand note of the proceedings, and the extent of the

precautions that had been taken by the applicant to ensure that the

programme constituted a fair and accurate report of the proceedings.

The Court again declined to view the programme and, after further

legal argument, dismissed the application to discharge the injunction

and refused leave to appeal to the House of Lords.  In the Court's

judgment, the Lord Chief Justice held, inter alia:

        "The next point taken by Mr.  Mathew on behalf of Channel Four

        Television is that the injunction which we granted was the

        application of a wrongly interpreted dictum of Lord Diplock's

        in Attorney General v.  Times Newspapers Ltd. (1974) AC 273.

        The passage which Mr.  Laws invited us to examine at the

        original hearing is at page 309.  It reads as follows:

                'The due administration of justice requires first

                that all citizens should have unhindered access to

                the constitutionally established courts of criminal

                or civil jurisdiction for the determination of

                disputes as to their legal rights and liabilities;

                secondly, that they should be able to rely upon

                obtaining in the courts the arbitrament of a tribunal

                which is free from bias against any party and whose

                decision will be based upon those facts only that

                have been proved in evidence adduced before it in

                accordance with the procedure adopted in courts of

                law; and thirdly that, once the dispute has been

                submitted to a court of law, they should be able to

                rely upon there being no usurpation by any other

                person of the function of that court to decide it

                according to law.  Conduct which is calculated to

                prejudice any of these three requirements or to

                undermine the public confidence that they will be

                observed is contempt of court.'

        Mr.  Mathew submits that the circumstances and the facts of

        that case were such as to render that dictum not applicable

        to the circumstances with which we are dealing at the moment.

        We disagree.  That dictum is one of general application, and

        if conduct falls within the words used by Lord Diplock

        properly construed, then that is the basis on which the Court

        can exercise jurisdiction to grant an injunction.

        ...

        That brings us to the next ground upon which Mr.  Mathew bases

        his submission, first of all that this programme is not

        potentially in contempt, and if it was in contempt potentially

        at the time when the injunction was granted, namely whilst the

        hearing at the Old Bailey was still in progress, it is no

        longer so because the hearing is now over, and all that

        remains is the judgment of the Court which has yet to be

        delivered.

        That raises of course the always difficult question of

        deciding the matter of degree, as Lord Justice Shaw described

        it.  Mr.  Mathew has, quite understandably, sought to draw

        analogies between the programme which is proposed and the

        ordinary reports in the press of cases which are being heard

        or have just been heard in the courts.

        But it seems to us that the television presentation which is

        proposed - I interpolate, we have read the two affidavits

        filed by the Television Company demonstrating the care with

        which they say they have carried out their research and the

        care with which they have organised the prospective programme

        - is not truly analogous to the press reports.  Press comment

        does not pretend to be any more than comment.  But what is

        proposed here is the portrayal with actors not only of members

        of the Court (which does not matter), not only of counsel

        (which probably does not matter), but also of the witnesses.

        The portrayal by actors of a witness, albeit using words or

        some of the words which the witness has used, is pretending to

        be the real thing and is subtly inviting the viewer, as Mr.

        Laws puts it, to sit in the judgment seat, and subtly inviting

        the viewer to make what he thinks is his own comment or

        judgment, but in truth that comment and judgment will be

        conditioned, and predictably conditioned, by the way in which

        the actor, as he has been directed, has played the part of the

        witness.  The actor has it in his power to make a truthful

        witness appear to be a liar and vice versa.

        Such a representation would not, in normal circumstances,

        directly affect the judgment of the Court.  It would, or it

        certainly might, affect the public's view of the judgment of

        the Court.  As to that it might be said that a broadcast of

        this nature after judgment is delivered would have the same

        effect, but we doubt if that is true.  Even if it is true,

        there is a further reason for at least postponing such a

        programme until after all the proceedings are over.  That is

        this.  Whatever may be the nature of the present programme,

        which we have not seen despite invitations to us to do so, the

        defendant in any case, or the appellants in the present case,

        in circumstances such as these, are entitled to be assured

        that so far as possible the Court has not been influenced by

        external matters.

        The broadcast of this sort of programme before the case is

        finally over may leave the defendant, or the appellants in

        this case, without such assurance.  He will know that the

        Court in all probability has seen the programme before

        judgment has been delivered.  He may harbour doubts, however

        unjustified those doubts may be, about the effect which the

        programme may have had upon the judgment of the Court."

        On 30 December, the applicant lodged with the House of Lords a

petition for leave to appeal and unsuccessfully sought an expedited

hearing of the application.

        On 28 January 1988, the Court of Appeal delivered its judgment

in the reference proceedings upholding the convictions and refusing to

order a retrial.

        On 29 January, the Court of Appeal discharged the injunction

against the applicant.

        On 21 March 1988, the House of Lords heard the applicant's

petition for leave to appeal and dismissed it on the ground that,

since the injunction had been discharged, it was now "academic".

COMPLAINTS

        The applicant claims to be a victim of a breach of Articles 10

and 13 of the Convention.  It submits as follows.

        Article 10

        The interference by injunction in this case was not necessary

and outside the class of exceptions set out in Article 10 para. 2 of

the Convention for the following principal reasons:

(i)     The script for the programme was drawn almost entirely from

        the official shorthand transcript of the reference proceedings,

        and the only additional material was a short introduction by

        way of non-contentious explanation.  It, therefore, consisted

        only of words that had been spoken in open court.  There was

        no comment or criticism and the programme in no way trespassed

        upon the authority of the court or of the judiciary.

(ii)    Every word in the script could have been lawfully published at

        any time in the press without complaint.

(iii)   It was conceded by the Attorney-General on 3 and 16 December

        1987 that such a programme could not threaten the impartiality

        of the Court of Appeal which was composed of professional

        judges.  The fairness of the proceedings and of their outcome,

        therefore, was not at risk.

(iv)    The Attorney-General stated on 3 and 16 December 1987 that he

        would have no objection to the programme being broadcast

        immediately after judgment had been given but nevertheless

        contended that it would constitute a contempt if it was

        broadcast immediately before.  In view of the fact that there

        was no possibility of prejudice to the outcome or of

        influencing the tribunal, such a distinction is illogical.

(v)     The programme was in no sense even critical, and, as the

        Attorney-General conceded on 29 January 1988, it was never

        suggested that the applicant had acted from improper motives

        or with the specific intent of interfering with the

        administration of justice.

(vi)    In all the circumstances, there was no pressing social need

        requiring interference by injunction.

(vii)   In all the circumstances, the interference was not

        proportionate to the aim pursued by the applicant.

        Furthermore, the applicant submits that the interference in

this case with the applicant's rights under Article 10 para. 1 was

not "prescribed by law" as required by Article 10 para. 2 for the

following principal reasons:

(i)     The criterion of foreseeability emphasised by the European

        Court in the Sunday Times case (Eur.  Court H.R., Sunday Times

        judgment of 26 April 1979, Series A no. 30) was not met in

        this case.

(ii)    Reporting of court proceedings by the media is now regulated

        by the Contempt of Court Act 1981 which only permits a court

        to postpone a report of, or of part of, any legal proceedings

        "where it appears to be necessary for avoiding a substantial

        risk of prejudice to the administration of justice in those

        proceedings".  The Attorney-General, however, conceded in this

        case on 3 and 16 December 1987 that there could be no risk

        of prejudice to the outcome of the proceedings before

        professional judges and, therefore, he could not seek to rely

        upon Section 4.  The only other provision in the 1981 Act

        which could conceivably have applied was Section 6(c) which

        preserved the power of the court to commit for contempt where

        the conduct complained of was specifically intended to impede

        or prejudice the administration of justice but the

        Attorney-General accepted on 29 January 1988 that the applicant

        never had this intent.  Accordingly, since neither Section 4

        nor Section 6(c) applied, the interference was not prescribed

        by law.

(iii)   There is no authority in English law, either statutory or

        common law, for the proposition that undermining public

        confidence in the court constitutes a potential contempt in

        circumstances where there is no malice or intent to impair the

        administration of justice.

        The applicant submits that it continues to be a victim since:

i)      It is the applicant's wish, as was stated to the Appellate

        Committee of the House of Lords on 21 March 1988, to commission

        similar programmes in the future in accordance with its duties

        and responsibilities to impart information to the public

        and/or to render the administration of justice visible.

ii)     The judgments of the Court of Appeal in this matter serve as a

        binding precedent that will interfere with the applicant's

        rights under Article 10.

iii)    The applicant is extremely unlikely ever to be able to

        challenge that precedent in the House of Lords since by their

        very nature such injunctions are temporary only and will be

        discharged once the verdict or judgment has been delivered.

        Such injunctions will, therefore, only last for a matter of

        weeks during which time it will not be possible to have the

        applicant's appeal heard and determined in the House of Lords.

        Once the injunction is discharged, the House of Lords will

        then decline to hear the matter on the ground that it is

        "academic" only.

Article 13

        The applicant contends that there was a breach of Article 13

of the Convention for two separate reasons:

i)      because the applicant was not able to appeal on the merits

        and/or the law at any time to any court other than the

        Court of Appeal which originally granted the injunction, save

        to the extent that it could seek leave to appeal to the House

        of Lords on a novel point of law of general public importance

        assuming that such a point existed in this case.  It is

        submitted that that is not an effective remedy; and

ii)     because the applicant had no prospect of appealing to the

        House of Lords in this case even on a novel point of law.

        The House of Lords dismissed the applicant's petition for

leave to appeal solely on the ground that it had become "academic" by

21 March 1988, but the discharge of the injunction still left

unresolved the issues whether the prior restraint of the applicant and

the interference with its rights from 3 December 1987 until 29 January

1988 was proper and whether the judgments of the Court of Appeal were

correct as a precedent for the future given that the applicant had

stated its express wish and intention to express itself in a similar

manner through similar programmes in the future.

        At the very least, the applicant submits that the House of

Lords should, or could properly, have determined whether its rights

under the Convention had been violated up until 29 January 1988.

THE LAW

1.      The applicant complains that the injunction issued preventing

the showing of its television programme violated Article 10 (Art. 10) of the

Convention, which provides:

        "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 finds that the order of the Court of Appeal

prohibiting the broadcasting of the applicant's scheduled programme

concerning proceedings before the Court constituted an interference

with the applicant's freedom of expression within the meaning of

Article 10 para. 1 (Art. 10-1) of the Convention.  The Commission must consider

whether this interference was "prescribed by law" and whether it was

necessary in a democratic society for one or more of the purposes set

out in Article 10 para. 2 (Art. 10-2).

        As regards the lawfulness of the restriction, the Commission

recalls that the injunction was issued by the Court of Appeal as part

of its inherent jurisdiction with regard to contempt of court.  While

the applicant argues that its television programme did not in fact

constitute a contempt of court, the Commission finds that the possible

differences of interpretation and application of the principles

governing contempt of court do not necessarily deprive it of the

quality of law.  In the Sunday Times case the European Court of Human

Rights stated:

        "In the Court's opinion, the following are two of the

        requirements that flow from the expression 'prescribed by

        law'.  Firstly, the law must be adequately accessible:  the

        citizen must be able to have an indication that is adequate in

        the circumstances of the legal rules applicable to a given

        case.  Secondly, a norm cannot be regarded as a 'law, unless it

        is formulated with sufficient precision to enable the citizen

        to regulate his conduct:  he must be able - if need be with

        appropriate advice - to foresee, to a degree that is

        reasonable in the circumstances, the consequences which a

        given action may entail.  Those consequences need not be

        foreseeable with absolute certainty:  experience shows this to

        be unattainable.  Again, whilst certainty is highly desirable,

        it may bring in its train excessive rigidity and the law must

        be able to keep pace with changing circumstances.

        Accordingly, many laws are inevitably couched in terms which,

        to a greater or lesser extent, are vague and whose

        interpretation and application are questions of practice."

        (Eur.  Court H.R., Sunday Times judgment of 26 April 1979,

        Series A no. 30, p. 31, para. 49).

        The Commission considers that there exists a significant body

of case-law concerning the law of contempt of court and that both the

applicability and the substantive content of this law have been

developed with sufficient precision so as to make it reasonably

accessible and foreseeable.  The Commission accordingly finds the

restriction was "prescribed by law" within the meaning of Article 10

para. 2 (Art. 10-2).

        As regards the purpose of the restriction, the Commission

recalls that the Court of Appeal gave as its reasons for its decision

the need to provide assurance to the appellants that the Court had not

been influenced by external matters and the risk that the programme

would undermine public confidence in the Court's judgment.  The

Commission considers that the restriction therefore pursued the

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

protecting the rights of others and of maintaining the authority and

impartiality of the judiciary.

        It remains to be considered whether the restriction was

necessary in a democratic society for these aims.  The Commission must

have regard to the essential function of freedom of the press in a

democratic society and establish whether a "pressing social need"

justified the restriction, taking into account that the States have a

certain margin of appreciation (Eur.  Court H.R., Lingens judgment of

8 July 1986, Series A no. 103, pp. 25-26, paras. 39-41).

        The applicant submits that there was no pressing social need

for the restriction since, inter alia, there was no risk of the

programme affecting the judgment of a court of professional judges,

the script was drawn from the official shorthand transcript and could

have been lawfully published in the press and the programme was in no

sense critical or of any threat to the proper administration of

justice.

        The Commission considers however that the dramatic

reconstruction of court proceedings on television differs

significantly from reporting of those proceedings in the press.  The

Court of Appeal in its judgment found:

        "The portrayal by actors of a witness, albeit using words or

        some of the words which the witness has used, is pretending to

        be the real thing and is subtly inviting the viewer, as Mr.

        Laws puts it, to sit in the judgment seat, and subtly inviting

        the viewer to make what he thinks is his own comment or

        judgment, but in truth that comment and judgment will be

        conditioned, and predictably conditioned, by the way in which

        the actor, as he has been directed, has played the part of the

        witness." (the Lord Chief Justice)

        Furthermore, the Commission notes that the Court of Appeal

considered that such a television programme would not normally affect

the judgment of the Court, but that the appellants had the right to be

assured that the Court was unaffected by external matters and that

they would have understandable doubts of this if the programme was in

fact shown before the judgment was given.

        In light of these considerations the Commission finds in the

present case that the restriction was justified by a pressing social

need.  It also finds the restriction, which lasted eight weeks until

the publication of the court's judgment, was not disproportionate to

the aims which it sought to achieve.

        It follows that this complaint is manifestly ill-founded

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

2.      The applicant also complains of the lack of an effective

remedy in respect of its complaints, contrary to Article 13 (Art. 13) which

provides:

        "Everyone whose rights and freedoms as set forth in

        this Convention are violated shall have an effective

        remedy before a national authority notwithstanding that

        the violation has been committed by persons acting in an

        official capacity."

        Article 13 (Art. 13) does not require a remedy under domestic law in

respect of any alleged violation of the Convention.  It only applies

if the individual can be said to have an "arguable claim" of a

violation of the Convention (Eur.  Court H.R., Boyle and Rice judgment

of 27 April 1988, Series A no. 131, para. 52).

        The Commission has found above that the interference with the

applicant's rights under Article 10 (Art. 10) of the Convention was justified

under paragraph 2 of that provision as being necessary in a democratic

society for the protection of the rights of others and for maintaining

the impartiality and authority of the judiciary.

        The Commission also finds that the facts of the present case

fail to disclose an "arguable claim" of a violation of Article 10 (Art. 10) of

the Convention.  Consequently, the applicant cannot derive from

Article 13 (Art. 13) of the Convention a right to a remedy for the alleged

violation of Article 10 (Art. 10).

        It follows that this part of the application is also

manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of

the Convention.

        For these reasons, the Commission

        DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission        Acting President of the Commission

        (H.C. KRÜGER)                        (S. TRECHSEL)