Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 11552/85

by TIMOTHY CROOK and

THE NATIONAL UNION OF JOURNALISTS

against the United Kingdom

The European Commission of Human Rights sitting in private on

15 July 1988, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

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

Having regard to Article 25 (Art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 3 May 1985

by TIMOTHY CROOK and THE NATIONAL UNION OF JOURNALISTS against the

United Kingdom and registered on 23 May 1985 under file No. 11552/85;

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 first applicant, Mr. Timothy Crook, is a citizen of the

United Kingdom, born in 1959, and at present residing in London. He

is a journalist by profession and the proprietor of a newsagency which

provides reports of court trials for the broadcast media.

The second applicant, the National Union of Journalists, is a

trade union representing the interests of British journalists, many of

whom are professionally engaged in court reporting.

The applicants were represented by Ms. Marie Staunton and

Mr. Paul Hunt, Legal Officers, National Council for Civil Liberties.

The facts submitted by the applicants may be summarised as

follows.

In the course of a trial which took place in the Central

Criminal Court, London, in January 1984 in which three defendants were

charged inter alia with abducting a woman in order that she should have

unlawful sexual intercourse with another person, an application was

made to the court for an Order under Section 11 of the Contempt of

Court Act 1981 prohibiting the publication of the victim's name.

The trial judge, after hearing representations from counsel

for the defence, subsequently made an Order under Section 11

"prohibiting publication of her name or any material leading to her

identity or identification". He added, however, that the name could be

referred to in court since withholding it might prejudice the defence

of one or more of the defendants.

In the course of the trial it transpired that the witness

belonged to a well-known family and it was suggested to the court by

counsel for the defence that the real reason that counsel made an

application for an Order under Section 11 was to shield her and her

family from embarrassment arising from certain details of her past

which were revealed in the course of her evidence. After receiving a

request from journalists to reconsider the Order the trial judge

agreed to hear representations from the media in view of the

"constitutional importance of the Section 11 Order".

After hearing counsel on behalf of the media and counsel for

the witness, the trial judge in a decision dated 27 January 1984 upheld

his Order under Section 11. He found that the court did have a power

at common law to make such an Order notwithstanding that the

indictment was not one of blackmail. He also found, on a question of

construction of Section 11, that it was open to him to make an Order

notwithstanding the fact that thereafter, in the course of the trial,

the name of the witness could be referred to in court.

Further he held that the Order was justified in the interests

of the administration of justice. In reaching this conclusion he took

into account that the witness, now 23, had started to take heroin

when she was 17. She had subsequently become an addict and had then

sought assistance for treatment and he referred to medical evidence

given before him to the effect that people seeking rehabilitation by

treatment must avoid undue stress.

In an application for judicial review of this Order the

Divisional Court found that it had no jurisdiction to entertain the

application for the Order since Section 29 of the Supreme Court Act

1981 had the effect of excluding any review of an Order made in the

course of proceedings at a Crown Court trial.

The judges of the Divisional Court indicated that they had

reached their conclusion reluctantly and expressed the view that the

Order was wholly illogical since the name of the witness was used

freely in the court in a public hearing and would thus be known to any

persons sitting in the public gallery. Moreover they expressed doubt

that the trial judge had power to make the Order under Section 11

where the name of the witness would be referred to in court during the

course of the proceedings.

The court also objected to the trial judge's hearing of

representations from the media and from counsel on behalf of a witness,

holding that no person who was not a party to the trial had standing

to oppose an Order made by the trial judge however much they might be

affected by it. The proper procedure to be followed in future cases

was for counsel for the prosecution or the defence to make

representations on behalf of the aggrieved party.

COMPLAINTS

The applicants complained that since the name of the witness

was regularly referred to in open court, the Order was an infringement

of their freedom to impart information to the public and thus a breach

of Article 10 (Art. 10) of the Convention.

Furthermore the decision of the Divisional Court that persons

in their position in the future have no right to oppose Orders made

under the Contempt of Court Act 1981 deprives them of their

entitlement to a fair hearing contrary to Article 6 (Art. 6) in relation to

decisions which affect their civil rights.

Finally, they submitted that the lack of an effective remedy

against the Section 11 Order constitutes a breach of Article 13 (Art. 13) of

the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 3 May 1985 and was

registered on 23 May 1985. It was first considered by the Commission

on 2 December 1985 when it was decided to communicate the application

to the respondent Government and to request their observations on the

admissibility and merits of the case.

In a letter dated 9 April 1986 the Government informed the

Commission that they had approached the applicant's legal advisers

(National Council for Civil Liberties) with a view to discussing

possible changes in the law concerning review of Orders made under

inter alia Section 11 of the Contempt of Court Act 1981. The

Commission was requested to adjourn the application pending the

outcome of these discussions. In a further letter of 14 July 1986 the

Government indicated that they intended to change the law in order to

permit judicial review but that the manner in which review would take

place was a matter for further discussion.

On 14 July 1986 the Commission again considered the

application and decided to adjourn it pending the outcome of the

discussions between the parties.

A meeting subsequently took place in London on 18 March 1988

between the parties and the Secretary to the Commission, accompanied

by a member of the Secretariat.

In a letter dated 7 July 1988, the Agent of the respondent

Government, Mr. M. C. Wood, made the following proposals:

"1. The Government have tabled an amendment to the

Criminal Justice Bill which, inter alia, provides that any

person aggrieved may, with leave, appeal to the Court of

Appeal against an order under section 4 or 11 of the Contempt

of Court Act 1981 made in relation to a trial on indictment.

It is now intended that ... the time limit for the appeal

should be fourteen days, with the usual possibility of

applying for leave to appeal out of time.

2. Provided that the above application is struck off the

Commission's list of cases, the Government are ready to pay

the costs that would have been payable on the party and party

basis to the applicants if they had succeeded before

the Divisional Court and, in addition, a proportion (75%) of

the legal costs relating to the application to the Commission

which have been actually incurred, necessarily incurred and

are reasonable as to quantum."

Mr. P. Hunt, Legal Officer, National Council for Civil

Liberties, indicated in a telex dated 11 July 1988 that the applicants

were prepared to withdraw the application on the terms set out in

Mr. Wood's letter of 7 July 1988.

REASONS FOR THE DECISION

The Commission notes that the applicants complained inter alia

under Articles 10 and 13 (Art. 10, Art. 13) of the Convention in respect of an

Order made under Section 11 of the Contempt of Court Act 1981 restraining them

from publishing the name of a witness in a criminal trial. It further notes

that the Government proposed an amendment to the Criminal Justice Bill,

providing for the possibility of an appeal to the Court of Appeal against

Orders made under Section 11 of the 1981 Act. The applicants have indicated

their willingness to withdraw the application in the light of this proposal.

Against this background, the Commission finds that the parties have reached a

settlement of the application and, having regard to Rule 44(1) of the Rules of

Procedure, that there are no reasons relating to the general interest to

continue an examination of the application.

For these reasons, the Commission

DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.

Secretary to the Commission President of the Commission

(H. C. KRUGER) (C. A. NØRGAARD)

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CROOK and NATIONAL UNION OF JOURNALISTS v. the UNITED KINGDOM

CROOK and NATIONAL UNION OF JOURNALISTS v. the UNITED KINGDOM