AS TO THE ADMISSIBILITY OF

                      Application No. 11553/85

            by G. Hodgson, D. Woolf Productions Ltd. and

                   National Union of Journalists

                      against the United Kingdom

                      Application No. 11658/85

                 by Channel Four Television Co.  Ltd.

                      against the United Kingdom

        The European Commission of Human Rights sitting in private

on 9 March 1987, the following members being present:

              MM. C.A. NØRGAARD, President

                  F. ERMACORA

                  E. BUSUTTIL

                  G. JÖRUNDSSON

                  G. TENEKDIES

                  S. TRECHSEL

                  B. KIERNAN

                  A.S. GÖZÜBÜYÜK

                  J.-C. SOYER

                  H.G. SCHERMERS

                  H. DANELIUS

                  G. BATLINER

                  J. CAMPINOS

             Mrs.  G.H. THUNE

             Sir  Basil HALL

             M.   F. MARTINEZ

             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 applications introduced on 3 May 1985 by G.

Hodgson, D. Woolf Productions Ltd., and the National Union of Journalists

against the United Kingdom and on 25 July 1985 by Channel Four TV Company

Ltd., against the United Kingdom and registered on 23 May and 26 July 1985

under file Nos. 11553/85, 11658/85.

        Having regard to:

-          the report provided for in Rule 40 of the Rules

           of Procedure of the Commission;

-          the decision of the Commission on 2 December 1985

           to join both applications;

           Having deliberated;

           Decides as follows:

THE FACTS

        The first application is brought by the following applicants:

-       Mr.  G.M.T. Hodgson, a journalist and member of the National

        Union of Journalists, who is involved in court reporting;

-       D. Woolf Productions Limited, a company which makes

        television programmes;

-       National Union of Journalists, a trade union which

        represents the interests of British journalists.

        The above applicants are represented by Ms.  Marie Staunton, a legal

officer of the National Council for Civil Liberties.

        The second application is brought by Channel Four Television

Co.  Limited, which is a subsidiary of the Independent Broadcasting

Authority - a statutory body operating under the provisions of the

Broadcasting Act 1981.

        It is represented by its Chief executive, Mr.  Jeremy Isaacs.

        In 1984 D. Woolf Productions Ltd. commenced preparations for a

series of programmes entitled "Court Report" which was designed to

provide extended news coverage of trials of major public importance.

The first applicants, Mr.  G.M.T. Hodgson, was engaged to edit the

daily court transcript with the assistance of other members of the

National Union of Journalists and to present the programme.  A

contract was entered into between D. Woolf Productions Limited and

Channel Four Television whereby "Court Report" would cover the trial

of R. v.  Ponting, an official secrets' case which had attracted

wide public interest and which was due to commence on 28 January 1985

at the Central Criminal Court, London (1).  The programme "Court

Report" was to be screened for 25 minutes on every evening of the

trial.

        Channel Four had taken legal advice concerning the proposed

format and had been advised that there would be no objection to a

transcript of court proceedings being read out on television provided

that care was taken to present the programme as extended news

coverage and to ensure that the reading was neutral and undramatic in

tone.

        In a press release published by Channel Four it was stated

that each edition of "Court Report" would take the form of studio

readings from a transcript which had been carefully checked for

fairness and accuracy.  There was to be no dramatic re-enactment of

proceedings in the court-room or any attempt to reproduce the

atmosphere of the trial.  The readers would be seen to read from an

edited transcript and in order to ensure that they did not impart

characterisation or misleading dramatic emphasis to their lines, a

number of experienced actors were engaged.  In addition Channel Four

retained a barrister throughout the proceedings to advise

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

(1) Mr.  Ponting was alleged to have leaked certain information to a

Member of Parliament concerning the sinking of the 'Belgrano' during

the Falklands dispute.

on the contents of each programme.  D. Woolf Productions Limited were

advised by counsel that there was nothing in the finally settled

format of "Court Report" which could prejudice the trial of Mr.

Ponting.

        At the opening of Mr.  Ponting's trial on 28 January 1985 Mr.

Justice McCowan made an Order under Section 4(2) (1) of the Contempt

of Court Act 1981 in the following terms:

        "That a report of any part of the proceedings in the form

        proposed by Channel Four in their nightly half-hour 'Court

        Report' be postponed until after the jury has given its

        verdict in this case or until further order."

        The order was not opposed by counsel for the prosecution or by

counsel for the defence, and the trial judge held with reference to

the case of R. v.  Central Criminal Court, ex parte Crook and the

National Union of Journalists (2) that "a judge in these

circumstances must not hear applications by journalists or other lay

persons who are not parties to the case".  Accordingly he declined to

hear counsel on behalf of Channel Four and D. Woolf Productions on the

basis that they had no standing to make an application that the Court

should reconsider its ruling.

        Counsel for Mr.  Ponting stated that he shared the judge's

apprehension that: "a rehearsal of what counsel say or what witnesses

say which may have a different emphasis or inclination from that given

in court contains the risk of prejudice."

        Mr.  Justice McCowan considered that there was a danger that

the trial of Mr.  Ponting would be prejudiced by contemporaneous

reports of the day's court proceedings.  He explained his decision as

follows.

"I have no reason to doubt that a sincere attempt will be

made to present a balanced picture of the day's events.

But, inevitably, if approximately five hours of court

proceedings are edited down to something under half an hour,

the more newsworthy and dramatic parts of the day's evidence

are likely to be shown.  That, of course, happens in news

reports, be they on television, radio or in the newspapers.

But the difference in what is proposed here is that actors

will, as I understand it, be taking the parts of the Judge,

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(1)  Section 4(2) of the 1981 Act reads as follows:  "In any such

proceedings the court may, where it appears to be necessary for

avoiding a substantial risk of prejudice to the administration of

justice in those proceedings, or in any other proceedings pending or

imminent, order that the publication of any report of the proceedings,

or any part of the proceedings, be postponed for such period as the

court thinks necessary for that purpose."

(2) Decision of the Divisional Court of 7 November 1984.

Counsel for the Prosecution and the Defence, the Defendant

and the witnesses.  I do not think that the absence of the

panelled sets or costumes or of any attempt to impersonate

the characters involved, or the fact that scripts will be

read from makes a crucial difference.  The important point

is that actors are being used in a dramatic setting, and it

is difficult to think why actors are being used unless it be

to give dramatic effect to the words used.  Let me make

clear that I am in no way seeking to prohibit publication of

any part of this trial heard in open court in the presence

of the jury.  Again, I could have no possible objection if

the presentations planned by Channel 4 were given after the

jury has returned its verdict.  It would not matter that

they gave those presentations during the trial if under our

system the jury were locked up for the entirety of the trial

and could by that means be kept from looking at television.

As it is, until such times as I have repeated my summing up

and they have retired to consider their verdict, members of

the jury will be free to go home in the evenings and to look

at television.  It would be the most natural thing in the

work if they chose to look at a programme which involved a

dramatic reconstruction of the highlights of the day's

proceedings.  The danger is that they will recall the most

important parts of the day's evidence, not as the witnesses

said them but as the actors say them, not the demeanour of

the witnesses but the demeanour of the actors.  The actors

will very likely do it better, but the members of the jury

have to decide the case on the evidence as they heard it

from the witnesses in the witness box and not as they heard

it from the actors on the television screen.  I feel obliged

therefore to take the necessary measures to stop action

which could frustrate the administration of justice.  The

type of report proposed by Channel 4 could wrongly influence

the decision of the jury.  It could be to the prejudice of

either side and not least that of the Defendant.  It would

be most unfortunate if in the course of the trial it were

necessary to discharge the jury because of what they had

seen on Channel 4.  I am satisfied that an Order under

Section 4; subsection 2 of the Contempt of Court Act 1981 is

necessary for avoiding a substantial risk of prejudice to

the administration of justice in these proceedings."

(pp. 11-16 of the trial transcript).

        As a result of Mr.  Justice McCowan's Order, Channel Four

altered the format of the programme and replaced the actors with

newsreaders of wide experience.  The programme was thus presented as

extended news coverage of the trial.  The readers did not assume

individual roles, and the words of the judge, counsel and the parties

were apportioned among them.  However, the transcript of the programme

was edited in the manner originally proposed.  The transmission of

the programme took place as scheduled on each evening of the trial.

The judge later stated that the programme was "perfectly fair" and

that Channel Four had scrupulously obeyed his Order.

        The applicants were advised by counsel that the judge's Order

was unlawful, in that Section 4(2) does not give a trial judge any

power to impose a selective or discriminatory ban or postponement of

reporting.  They considered that the judge may postpone all reports of

all the proceedings, or all reports of any part thereof, but may not

impose a ban on the one reporter, or on one manner of reporting.  A

particular manner of reporting may amount to contempt in British law

if it seriously prejudices a trial, but this is to be decided

subsequently under the ordinary provisions for contempt and cannot be

pre-empted by a postponement order purportedly made pursuant to

Section 4(2).  The applicants were additionally advised that the

refusal by the judge to hear any argument on their behalf amounted to

a breach of natural justice.  However they were informed that no

remedy existed for these breaches of their civil rights.  They were

not parties to the trial so they could not appeal the decision, and

Section 29 (3) of the Supreme Court Act 1981 (1) debarred them from

seeking a High Court review of decisions made contrary to law or to

natural justice.  Had such a decision been taken by a Magistrate's Court

or by a Tribunal, judicial review would be available.  It is precluded

only in relation to orders made in the course of trials on indictment.

        The applicants state that they had no alternative but to

comply with the judge's Order, and the programme format was

abandoned.  D. Woolf Productions claim that they were obliged to cancel

the contracts of a number of persons at considerable expense, and to

engage others so that a different programme could be presented.

        Channel Four claim that alternative arrangements had to be

made at short notice involving the cancellation of contracts and the

engagement of other persons, the obtaining of additional legal advice

and the alteration of programme schedules and press publicity.

COMPLAINTS AND SUBMISSIONS

        The applicants complain that the order under Section 4(2) of

the Contempt of Court Act 1981 gave rise to a breach of their rights

under Arts. 6, 10 and 13 of the Convention.  They submit that had they

been allowed to oppose the order, they could have corrected the

mistaken factual basis upon which it was made.  They could have

presented overwhelming evidence (including a tape of the 'pilot'

programme) to demonstrate that it would not have impeded justice or

prejudiced the trial.  Had they been able to appeal by way of

judicial review, they could have argued that the order was unlawful

and made without jurisdiction, and that the refusal to hear their

representations was a breach of natural justice.

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________

(1)  Section 29(3) is as follows:

"In relation to the jurisdiction of the Crown Court, other than its

jurisdiction in matters relating to trial on indictment, the High

Court shall have all such jurisdiction to make orders of mandamus,

prohibition or certiorari as the High Court possesses in relation to

the jurisdiction of an inferior court."

        The programme "Court Report" was an exercise by the applicants

of their right to impart information to the public about a trial held

in open court.  The prior restraint imposed upon them by order of the

court was an interference with their right to impart information and

is not justified by a pressing social need.  Nor was it reasonably

proportionate to the aim of protecting the fairness of the trial.

        Furthermore the civil rights of the applicants to report

matters stated in open court and to exercise their profession as

journalists and makers of television programmes were infringed by the

order which was made and confirmed after they had been refused a fair

hearing in breach of Article 6 para. 1 of the Convention.

        Finally the applicants have no remedy, effective or otherwise,

against the above breach of their rights.  The Contempt of Court Act

1981 provides no right to oppose or appeal an Order made under Section

4 (2).  The applicants were not parties to the trial and so had no

standing to make representations to the trial judge or to appeal to

the Court of Appeal against the ruling.  Moreover, Section 29 (3) of

the Supreme Court Act 1981 precludes them from applying to the High

Court for judicial review of such an Order, no matter how unlawful or

unreasonable it may be.

PROCEEDINGS BEFORE THE COMMISSION

        The first application was introduced on 3 May 1985 and

registered on 23 May 1985.  The second application was introduced on

25 July 1985 and registered on the following day.

        The applications were first considered by the Commission on

2 December 1985 when it was decided, in accordance with Rule 29 of the

Rules of Procedure, to join both of the applications and to

communicate them to the respondent Government for observations on the

admissibility and merits of the complaints under Articles 10 and 13

of the Convention.  The observations of the respondent Government were

received on 8 April 1986 and the applicants' observations in reply on

3 July 1986.

        The Commission next examined the application on 3 December 1986

when it was decided to invite the parties to a joint oral hearing in

Strasbourg concerning the applicants' complaints under Articles 10 and

13 of the Convention.

        At the hearing which took place on 9 March 1987 the parties

were represented as follows:

Respondent Government

Mr.  J. Grainger         - Agent, Foreign and Commonwealth Office

Mr.  N. Bratza           - Counsel

Mr.  P. Rodney           - Adviser, Lord Chancellor's Department

Applicants

Mr.  Geoffrey Robertson  - Counsel

Ms.  Hilary Kitchin      - Solicitor, National Council of Civil

                          Liberties

Ms.  Elizabeth Forgan    - Deputy Controller of Programmes,

                          Channel Four TV

Mr.  Don Christopher     - Legal Services, Channel Four TV

Mr.  Godfrey Hodgson, one of the applicants, was also present during

the hearing.

SUBMISSIONS OF THE PARTIES

        Respondent Government

As to Fact

        The Government point out that counsel for Mr.  Ponting

indicated, at the opening of the trial, that he shared the judge's

apprehension that "a rehearsal of what counsel say or what witnesses

say which may have a different emphasis or intonation from that given

in court contains the risk of prejudice".  When the programme was

televised in its revised format defence counsel indicated that he was

content that the programme had been properly presented within the

terms of the Order.

Domestic law and practice

        The Contempt of Court Act 1981 concerns only certain aspects

of the law on contempt of court which covers a diversity of forms of

conduct which may take place within or out of court including such

matters as conduct liable to interfere with the course of justice,

reprisals against witnesses or parties, disruption of court

proceedings and disobedience to court orders.  A common feature of

these forms of conduct is that they impede or prevent the proper

administration of justice.  It is the purpose of the law on contempt

of court to ensure that the course of justice is not deflected or

interfered with.

        Section 4(1) provides a defence by which a person is not

guilty of contempt in respect of a fair and accurate report of legal

proceedings held in public, published contemporaneously and in good

faith.

        Section 4(2) enables a court to order the publication of

reports of proceedings to be postponed if prejudice to those

proceedings or to other proceedings might be caused by their

publication.  The standard example of situations in which such a power

might be used is where there is a "trial within a trial", e.g. a

hearing in the absence of the jury on the admissibility of a

defendant's alleged confession.

        Sub-Section (2) only enables courts to order the

postponement of the sort of publications which might constitute

contempt of court.  A risk of prejudice to the proceedings in quetion

or to other proceedings must ultimately disappear and after those

proceedings are completed reports of what happened previously may be

published.  A central purpose of the power in Section 4(2) is to avoid

influencing the jury by publication of matters which might prejudice

their minds unfairily.  Such prejudice would normaly work to the

detriment of the defendant in criminal proceedings, for example, if

his alleged confession statement had been ruled inadmissible but

nevertheless a report was published detailing its existence.

Article 25 para. 1

        The Government submit that the National Union of Journalists

cannot claim to be victims within the meaning of Article 25 para. 1

since they were not directly affected by Mr.  Justice McCowan's Order.

Their only interest in appearing in these proceedings is to effect a

change in the law.

Article 10

        The Government point out that there were only two changes made

in the proposed format in consequence of the judge's Order.

Newsreaders rather than actors were used to read the transcript and

the text was divided up between the newsreaders, thereby avoiding

role-playing by the actors of the participants in the trial.  The

judge's Order did not, by its terms or in its effect, prevent the

applicants from imparting substantially identical information in its

revised programme which was broadcast on each night of the trial using

the edited transcript originally proposed.

        It is submitted that, in such circumstances, the Order did not

constitute an interference with the applicants' right to impart

information.  The applicants were, at all times, free to report any

part of the Ponting trial and to do so by selecting readings from a

verbatim transcript of the trial.

        In the alternative, it is submitted that the interference was

justified under para. 2 of this provision.

        First, the interference was prescribed by law, i.e.  Section

4(2) of the 1981 Act.  The Government submit that, on a natural

construction of the words of Section 4(2), which refers to the

publication of any report of proceedings, the Order was lawful.

The Order did not apply to Channel Four simpliciter but applied

equally to any other agency which would have presented a broadcast "in

the form proposed by Channel Four".  Moreover, the Court's

discretionary powers under this Section are expressly defined since

Section 4(2) restricts the making of an Order to cases where it

appears to the court to be "necessary for avoiding a substantial risk

of prejudice to the administration of justice".  The judge's Order

thus satisfies the test of "foreseeability" as developed by the Court

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

Series A no. 30 para. 49).

Second, the protection of the administration of justice and the right

to a fair trial are among the bulwarks of a democratic society and

concern a "pressing social need".  In the present case the judge was

concerned that it was actors who would be taking the part of the

judge, counsel for the prosecution and the defence, the defendant and

the witnesses and that it would inevitably be the more newsworthy and

dramatic parts of the day's evidencewhich would be recounted.  The

judge was aware that no attempt was to be made to impersonate the

characters involved and that the programme was to consist of readings

from the transcripts.  However, he considered that there was a danger

that a dramatic effect would be given to the words used and that the

jury would:

"recall the most important parts of the day's evidence, not as

the witnesses said them but as the actors said them, not

the demeanour of the witnesses but the demeanour of the

actors.  The actors would very likely do it better, but the

members of the jury have to decide the case on the evidence

as they heard it from the witnesses in the witness box and

not as they heard it from the actors on the television

screen." (pp. 14-15 of the trial transcript)

        It is further submitted that the Order made was, in all

respects, proportionate to the legitimate aim sought to be achieved.

The Government accept that a complete ban on the programme proposed by

Channel Four would not have been proportionate to the need to protect

the trial.  However, the Order did not purport to prevent any

programme being televised which consisted of daily readings from the

transcribed proceedings in the trial.  In fact the Order resulted in

minor changes in the format of the programme and went no further than

was necessary to protect the fair administration of justice.

        Finally, it is submitted that the jury in a criminal trial, as

judges of fact, are part of the judiciary under the terms of Article

10.  The jury are an essential feature of a criminal trial and must be

considered as being involved in the machinery of justice.  In this

respect reference is made to para. 55 of the judgment of the Court in

the Sunday Times Case (loc. cit).  Accordingly, the restriction

was justified as necessary to maintain the authority and impartiality

of the judiciary in this sense.

Article 13

        The Government submit that, insofar as the applicants seek to

challenge the conformity of United Kingdom legislation (i.e.  Section

4(2) of the 1981 Act) with the Convention, no issue arises under

Article 13.  (See, Eur.  Court H.R., James and Others judgment of

21 February 1986, Series A no. 98, paras. 84-85).

        It is contended, with reference to the Commission's opinion in

the case of Rice and Boyle (Comm.  Report 7.5.86) that the applicants

do not have an arguable claim and cannot, therefore, claim an effective

remedy under Article 13.  The Government recall, in this connection,

their submissions that there was no interference with the applicants'

rights to impart information or alternatively that the interference

was justified under Article 10 para. 2 and that the complaint is thus

manifestly ill-founded.

        The applicants

As to Fact

        The judge suppressed the programme "Court Report" by

mistakenly assuming that the actors in the programme would be playing

the roles of participants in the trial.  Thus he referred to the

"fact" that actors would take the "roles" of participants several

times in the course of making his order.  Had an opportunity been

afforded to the applicants, it could have been explained to the judge

that this interpretation of the programme was incorrect.  Had the

applicants been able to make submissions to the judge, they could have

shown him a video cassette of a "pilot" programme.  Counsel for the

applicants had no opportunity whatsoever to request that the judge see

this programme.

        The re-edited programme which was broadcast was to some extent

different in terms of the words which were used.  For example, the

caution engendered by the judge's order and the uncertainty over its

scope caused the introduction of explanatory material.  Had this not

been necessary more of the trial transcript could have been read

within the time available.  More importantly, the information was

imparted in a form which was much less comprehensible to television

audiences.  The constraints imposed by the judge's order meant that

the medium of television was not utilised to its full potential for

imparting this kind of information.

Article 10

        The order made by the trial judge was an act which interfered

with the process of imparting information and the judge's refusal to

clarify his order to explain what form of report would be acceptable

was a further interference.  Compliance with the order required

additional extraneous material which reduced the time which could have

been allocated to reading from the trial transcript.  A more serious

interference was the banning of a telelvision format which would have

imparted the information more comprehensible and to a larger number of

persons.  The altered format interfered with the process of imparting

information because it produced a less communicative television

programme and one that was "anaesthetic" and "unwatchable" in view of

some television critics.  The point of the original programme, using

actors that could be directed to read the transcript in a way which

would best convey the meaning of the words, was substantially

undermined by the court order.

        The applicants contend that there is amply judicial authority

that freedom of expression extends to the manner of presentation

as well as the content of the information conveyed.  They refer to

the Barthold case (Eur.  Court H.R., judgment of 25 March 1985 para.

42) where the Court recognised that it is not possible to dissociate

the manner of presentation from the matter presented.  Similarly, the

Inter-American Court of Human rights recognised the same principle in

the Schmidt case when it held that "expression and dissemination of

ideas and information are indivisible concepts" (Advisory Opinion of

13 November 1985, para. 31, 8 E.H.R.R. 165).  Reference was also made

to the decisions of the Indian Supreme Court in the cases of Sahel

Papers v.  Union of India (1962) 3 SCR 842 and Ramesh Thappar v.  State

of Madras (1950) SCR 594.

        It is further submitted that the court Order was not

prescribed by law.  Section 4(2) sets out no guidelines for the

circumstances in which such an order may be imposed.  This

uncertainty cannot be resolved by challenging the Order of the

court.  The Section thus lacks the clarity, certainty and

predictability required of free speech infringements (Sunday Times

Case, loc. cit., para. 49).

        In addition, Section 4(2) has never been used to order

postponement of a particular form of reporting rather than

postponement of all reports.  Had the applicants been given an

opportunity they would have sought to argue that Section 4(2) confers

no jurisdiction on a trial judge to make such an order.  Furthermore,

the order was selective and discriminatory in that other, less fair

and accurate methods of reporting (such as short extracts in

newspapers or summaries by journalists on other television channels)

were not affected.

        The applicants submit that the order did not correspond to any

"pressing social need".  The jurors in the Ponting case were not

restrained from reading partial accounts or watching television news

summaries or absorbing critical comments on Section 2 of the Official

Secrets Act.  The respondent Government did not explain how the

reading on television of a verbatim transcript of evidence and

argument that jurors had heard directly from the witnesses and counsel

earlier on the same day was likely to influence their minds in a way

which would create a real risk of prejudice.  It must be recalled that

the applicants were dnot proposing to express any opinions on the

evidence.

        Insofar as any concern about the proposed programme was

legitimate, the need to protect the administration of justice could

have been met by directing the jury not to watch the programme or

otherwise to ignore it in their deliberations.  There is no reason to

believe that they would be incapable of disregarding a direction to

ignore a television programme.  Similar Orders have frequently been

made in the course of criminal trials.  In addition it would have been

a more reasonable course of action for the judge to have looked at the

programme first before deciding whether there was a real risk of

prejudice.  The Order made by the judge was disproportionate to the

aim of protecting the fair administration of justice and thus not

necessary in a democratic society.

Article 13

        The applicants were not seeking to challenge Section 4(2) of

the 1981 Act on the basis that it was incompatible with the

Convention.  They sought to argue that the Order which interfered with

their rights under domestic law was:

- made in ignorance of the true facts and upon mistaken assumptions

about their intentions;

- made erroneously, because their programme would not have impeded the

administration of justice;

- an order made without jurisdiction.

        They submit that they have an "arguable" claim that their

right to impart information to the general public about legal

proceedings has been violated by a judicial application of Section

4(2) of the 1981 Act and that no avenue exists under domestic law for

them to ventilate that claim and have it decided.  Questions relating

to contempt of court and jurisdiction were clearly "arguable" if an

opportunity to present submissions had been afforded to the

applicants.

        Finally, they point out that they would have had a remedy if

the Order under Section 4 (2) had been made in a civil court or in a

Magistrates' Court.  Such Orders are frequently quashed on the grounds

that they have been made without justification or jurisdiction.  The

absence of an effective remedy either by way of being heard by the

trial judge, by appealing against his decision or by judicial review

only exists in respect of Orders made in the course of trials on

indictment in the Crown Court.

THE LAW

        The applicants complain of an interference with their right to

impart information as a result of the trial judge's Order under

Section 4 (2) of the Contempt of Court Act 1981.  They invoke Articles

10 and 13 (Art. 10, 13) of the Convention.

        The Government have first contended that the National Union

of Journalists (NUJ) cannot claim to be a victim within the meaning of

Article 25 para. 1 (Art. 25-1) of the Convention.  The Commission must first

examine this preliminary question.

1.      As regards Article 25 para. 1 (Art. 25-1)

        The Commission recalls that it is not empowered under the

Convention to examine complaints in abstracto.  In accordance with

the terms of Article 25 para. 1 (Art. 25-1) it may only receive petitions " ...

from any person, non-governmental organisation or group of

individudals claiming to be the victim of a violation by one of the

High Contracting Parties of the rights set forth in this Convention

...".  The individual or non-governmental organisation concerned must

show that the measures complained of have been applied to his

detriment (see, Eur.  Court.  H.R., Klass and Others judgment of 6

September 1978, Series A no. 28, para. 33).

        In the present case the Order of the trial judge was directed

to Channel Four and those involved in the production of the programme

"Court Report".  The Order was not directed to the NUJ which was not

prevented, in any way, from imparting information in the exercise of

its rights under Article 10 (Art. 10) of the Convention.

        It is true that one of the members of the NUJ - the first

applicant, Mr.  Hodgson - was directly affected by the Order.  However

the Commission does not consider that this is sufficient to bring his trade

union into the category of 'victim' in Article 25 para. 1 (Art. 25-1) of the

Convention in the absence of a particular measure which directly affects the

rights of the union itself.

        The Commission does not, therefore, consider that the NUJ can be

regarded as a 'victim' within the meaning of Article 25 para. 1 (Art. 25-1) of

the Convention.  Accordingly insofar as the application is brought by the NUJ

the Commission rejects it as incompatible rationae personae with the provisions

of the Convention within the meaning of Article 27 para. 2 of the Convention.

2.      As regards Article 10 (Art. 10)

        The remaining applicants complain under this provision that

they were prevented by the Order from broadcasting the programme

"Court Report" in the manner they had chosen.  They submit that the

Order constitutes an unjustified interference with their right to

impart information under this provision.  They point out that under

the law of the United Kingdom they had no standing to make

representations to the trial judge and that they could not appeal

against his decision or seek judicial review of it.

        The respondent Government contend that the Order did not

constitute an interference with the applicants' right to impart

information as the programme was actually broadcast on each night of

the trial using the edited transcript originally proposed although in

a different form.  In the alternative, it is submitted that the

interference was justified under Article 10 para. 2 (Art. 10-2 ) in order to

maintain the authority and impartiality of the judiciary and, in

particular, to ensure that Mr. Ponting received a fair trial.

        Article 10 (Art. 10) reads 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 responsibiities, 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 recalls that freedom of expression constitutes

one of the essential foundations of a democratic society and one of

the basis conditions for its progress and for each individual's

self-fulfilment.  Of particular importance, in this context, is the

freedom of the press to impart information and ideas and the right of

the public to receive them (see, in this respect, Eur.  Court H.R.,

Lingens judgment of 8 July 1986, Series A no. 103, para. 41).

        The Commission further recalls the prominent place held in a

democratic society by the right to a fair trial as guaranteed by Article 6

para. 1 (Art. 6-1) of the Convention as well as the importance attached

to the public reporting of trials as one of the means whereby

confidence in the courts, superior and inferior, can be maintained.

As the European Court of Human Rights has stated:

"By rendering the administration of justice visible,

publicity contributes to the achievement of the aims of

Article 6 para. 1 (Art. 6-1), namely a fair trial ..." (see Eur.  Court

H.R., Axen judgment of 8 December 1983, Series A no. 72,

para. 25)".

        Against the background of these principles the Commission must

determine whether there was an interference with the applicants'

rights in the present case and, if so, whether it was proportionate to

the legitimate aim pursued and whether the reasons adduced by the

respondent Government to justify it are relevant and sufficient (see

Lingens judgment of 8 July 1986, loc. cit. para. 40).

        The respondent Government first, submit that, in fact, there

was no interference with the applicants' rights because they were able

to impart all of the information originally proposed albeit in a

different format.

        The Commission considers that the effect of the Court order

was to transform the television programme as initially devised by the

applicants.  It was no longer permissible for them to use actors to

play the role of the participants in the trial and the transcript of

the court proceedings had to be read by a newsreader.  In the

Commission's view such an interference with the manner of conveying

information to the public, as opposed to the content of information

constitutes an interference with freedom of expression under paragraph

1 of this provision.  In reaching this view the Commission has

attached particular importance to the role played by production and

presentation techniques in the making of television programmes.

        Nevertheless, in the present case, it must be recalled that

the applicants were able to impart substantially the same information

in the amended version of their programme.  In such circumstances the

interference is clearly of a less serious degree than, for example,d a

total prohibition.

        The applicants further contend that the interference was not prescribed

by law as required by Article 10 para. 2 (Art. 10-2) because the trial judge

had no jurisdiction, under Section 4 (2) of the 1981 Act, to make an Order

which was selective in the sense that it was directed against one television

programme and concerned with questions of format as opposed to substance.  They

also submit that Section 4 (2) lacks the clarity certainty and predictability

required of restrictions on free speech.

        The Commission does not accept this argument.  Section 4(2)

empowers a court, where it appears to be necessary for avoiding a

substantial risk of prejudice, to the administration of justice, to

order that "the publication of every report of the proceedings, or any

part of the proceedings, be postponed for such period as the court

thinks necessary for that purpose".

        The Commission considers that this provision satisfies the

criterion of foreseeability ennunciated by the Court in the Sunday

Times case in that the power of the judge is formulated with

sufficient precision in terms of the mischief sought to be avoided

(see Eur.  Court H.R., judgment of 26 April 1979, Series A no. 30,

para. 49).  The mere fact that a legislative provision may give rise

to problems of interpretation does not mean that it is so vague and

imprecise as to lack the quality of 'law' in this sense (see, in this

context, No. 9174/80, Comm.  Report 11.10.83, D.R., 40, p. 42 paras.

93-94).

        Moreover, it is clear from the wording of Section 4 (2) that

it covers "any report of the proceedings" (emphasis added), thus

enabling a judge make an order contrary to the applicants' submission,

in respect of a particular report.  When a court order is grounded

on a statutory provision it must be regarded as 'lawful' until set

aside by a decision of a superior court.  It is not rendered unlawful

when, as in the present case, there exists no appeal against it.  The

Commission therefore considers that the Court Order was presecibed by

law as required by Article 10 para. 2 (Art. 10-2) of the Convention.

        As to whether the measure pursued a legitimate aim and was

necessary in a democratic society the Commission recalls that the

adjective "necessary" in paragraph 2 implies the existence of a

"pressing social need" and that the Contracting States have a certain

margin of appreciation in assessing whether such a need exists (see,

for example, Eur.  Court H.R., Lingens judgment of 8 July 1986, loc.

cit., para. 39).

        It is clear from the reasons given by the trial judge for the

Order that he considered it necessary to protect the proper

administration of justice and, in particular, Mr.  Ponting's right to a

fair trial.  The Commission considers that these aims correspond to

the purpose of "maintaining the authority and impartiality of the judiciary" as

set out in Article 10 para. 2 (Art. 10-2) of the Convention.  As the Court has

remarked in the Sunday Times case, this concept encompasses the proper

functioning of the courts and machinery of justice as well as the rights of

litigants (loc. cit., paras. 55-56).  In this regard the Court stated as

follows:

"... insofar as the law of contempt may serve to protect

the rights of litigants, this purpose is already included in

the phrase 'maintaining the authority and impartiality of

the judiciary':  the rights so protected are the rights of

individuals in their capacity as litigants, that is as

persons involved in the machinery of justice, and the

authority of that machinery will not be maintained unless

protection is afforded to all those involved in or having

recourse to it. ..."  (para. 56).

        The Commission therefore considers that the Court Order

pursued a legitimate aim under Article 10 para. 2 (Art. 10-2) of the Convention

namely to maintain the authority and impartiality of the judiciary.

        The applicants, however, maintain that the Order was not

necessary in a democratic society since the judge could have

instructed the jury not to watch the programme or he could have seen

the programme first before taking his decision.  They further contend

that, in any event, there was no real risk of prejudice since the jury

would be merely hearing a summary of evidence they had already heard

delivered by actors who had been instructed to read their lines without

dramatic emphasis.  Moreover the trial judge had based his opinion on

a false assumption that the actors would play roles.  Such a mistaken

assumption could have been corrected if the applicants had been

allowed to address the trial judge.

        The Commission notes that the trial judge based his decision

on the risk that members of the jury would be prejudiced by

contemporaneous reports of the day's court proceedings.  He was

concerned that in a programme which lasted thirty minutes there would

be an inevitable tendency to highlight the most dramatic parts of a

five-hour hearing.  He considered it important that members of the

jury should decide the case on the evidence as it was heard from the

witness box and not from actors on a television programme.  It is

clear from his explanation that he did not consider the absence of

any attempts to portray the characters involved as making a crucial

difference since actors were being used in a "dramatic setting".

        The Commission also observes that defence counsel for Mr.

Ponting shared the fear that a rehearsal of the proceedings might have

a different emphasis from that given in court and created a risk of

prejudice.

        The Commission is of the opinion that the need to ensure a

fair trial and to protect members of a jury from exposure to

prejudicial influences corresponds to a 'pressing social need'.  Such

an interpretation is reflected in the importance attached in a

democratic society to the right to a fair trial.  Furthermore, where a

trial judge is confronted, in the opening of a highly publicised and

controversial trial, with a potentially prejudicial media report,

great weight must be attached to his on-the-spot assessment of the

dangers of prejudicing the jury and thereby harming the fairness of

the trial.  Such a calculation, involving as it does the proper

balance to be struck between the applicants' freedom of expression and

the fair administration of justice, is a matter which falls within the

Contracting States' margin of appreciation subject, of course, to

supervision by the organs of the Convention.

        It is true that there may have been other less objectionable

courses open to the trial judge, short of prior restraint, such as

instructing members of the jury not to watch the programme or watching

it himself before taking his decision.  However, the Commission

considers that where there is a real risk of prejudice the appropriate

response, in the circumstances, is one which must lie, in principle,

with the person responsible for ensuring the fairness of the trial,

namely, the trial judge.

        The Commission finds that the evaluation of the risk of

prejudice was reasonable in the circumstances.  Thus, bearing in mind

that the applicants were able to impart substantially the same

information in a revised programme and that the order only purported

to postpone the programme, the Commission concludes that the

interference with the right to impart information can reasonably be

considered necessary in a democratic society for maintaining the

authority and impartiality of the judiciary.  Accordingly the

Commission rejects the applicants' complaints under this provision as

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

the Convention.

3.      As regards Article 6 (Art. 6)

        The remaining applicants further complain under Article 6

para. 1 (Art. 6-1) of the Convention that they were denied a fair hearing of

their "civil right" to report matters stated in open court.

        The relevant part of Article 6 para. 1 (Art. 6-1) guarantees that

"1.   In the determination of his civil rights and

obligations ... everyone is entitled to a fair and public

hearing within a reasonable time ..."

        The Commission recalls that whether or not a right is to be

regarded as a civil right within the meaning of this provision is to

be determined by reference to the substantive content and effects of

the right (see, Eur.  Court H.R., König judgment of 28 June 1977,

Series a no. 27, para. 89).  In the present case the Commission does not

consider in the light of the above text that the right to report

matters stated in open court, can be described as a right which is

'civil' in nature for purposes of this provision.  This complaint

must, therefore, be rejected as incompatible ratione materiae with the

provisions of the Convention within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

4.      As regards Article 13 (Art. 13)

        Finally, the remaining applicants complain that they have no

remedy whatsoever in respect of their claim that their rights under Article 10

(Art. 10) to impart information were infringed by the judge's Order. They point

out that the 1981 Act grants them no right to oppose or appeal an Order made

under Section 4 (2).  Moreover, Section 29 (3) of the Supreme Court Act 1981

precludes them from applying to the High Court for judicial review of such an

Order.  They further submit that they were not seeking to challenge Section 4

(2) on the basis that it was incompatible with the Convention.  They sought

inter alia to argue that the judge's Order was made without jurisdiction and

was based on mistaken assumptions about their intentions.

        Finally, the applicants submit that their claim of a breach of their

right to impart information under Article 10 para. 1 (Art. 10-1) is clearly an

'arguable' claim for the purposes of Article 13 (Art. 13).

        The Government contend that, since it is clear that the

applicants were not victims of any interference with their rights

under Article 10 (Art. 10) or that their complaint under this heading was

manifestly ill-founded, they do not have an 'arguable' claim.  They

cannot, therefore, claim an effective remedy under Article 13 (Art.13).

Moreover Article 13 (Art. 13) does not guarantee an effective remedy in respect

of a legislative provision such as Section 4 (2) of the 1981 Act.

        Article 13 (Art. 13) states as follows:

     "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."

        The Commission considers, in the light of the parties

submissions, that this part of the application raises complex issues of

law and fact under the Convention, the determination of which should

depend on an examination on the merits of the application.

        It concludes, therefore, that this part of the application is

admissible without prejudice to the merits.

        For these reasons, the Commission

- DECLARES INADMISSIBLE the complaints made by the National Union

of Journalists in Application No. 11553/85;

- DECLARES ADMISSIBLE the remaining applicants' complaints under

Article 13 (Art. 13) of the Convention;

- DECLARES THE REMAINDER OF THE APPLICATIONS INADMISSIBLE

Secretary to the Commission               President of the Commission

     (H.C. KRÜGER)                             (C.A. NØRGAARD)