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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> British Broadcasting Corporation & Eight Other Media Organisations, R (on the application of) v F & D  EWCA Crim 12 (11 February 2016)
Cite as:  EWCA Crim 12
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IN THE MATTER OF AN APPEAL PURSUANT TO S. 159
OF THE CRIMINAL JUSTICE ACT 1988
ON APPEAL FROM THE CROWN COURT AT TEESSIDE
Mr Justice Globe
Strand, London, WC2A 2LL
B e f o r e :
(SIR BRIAN LEVESON)
THE VICE PRESIDENT OF THE COURT OF APPEAL (CRIMINAL DIVISION)
LADY JUSTICE HALLETT)
LADY JUSTICE SHARP
| ex parte BRITISH BROADCASTING CORPORATION
and eight other media organisations
|REGINA v. F and D
Steven Kovats Q.C. and Nicholas Campbell Q.C. for the Crown
Jamie Hill Q.C. for F
John Elvidge Q.C. for D
Hearing date : 26 January 2016
Crown Copyright ©
Sir Brian Leveson P :
"1. Remove any posted comments on any media reports or facility to leave posted comments upon such reports from any website under their control that is publishing material relating to the trial.
2. Remove links from the said websites to any other websites (including Facebook and other social media networking organisations).
3. Prohibit the publication of posted comments on any media report of the trial on websites under their control.
4. Refrain from providing links from reports relating to the trial on those websites under their control to any other websites (including Facebook and other social networking organisations).
5. Refrain from issuing or forwarding tweets relating to the trial."
"No alternative proposition is put forward to preserve the integrity of the trial process."
"1. The order made under s. 45(4) of the Senior Courts Act 1981 on 3rd July 2015 be revoked.
2. Pursuant to s.4(2) Contempt of Court Act 1981 and subject to the specific exception in paragraph 3, the publication of any report of these proceedings or any part of these proceedings in [sic] postponed until the return of the verdicts in relation to both defendants or further order of the court.
3. After discharge of the jury today, the following facts may be reported:
"The jury in the trial of two teenage girls charged with murdering a 39 year old woman has been discharged. All parties agreed to the proceedings at Teesside Crown Court following the death of Angela Wrightson being halted. Mr Justice Globe directed that the trial of the two girls will take place on a later date. Miss Wrightson was found dead in her home in Stephen Street, Hartlepool last December.""
"It is unlikely to present a substantial risk of serious prejudice because it is a needle buried away in the haystack of the internet…. Indeed most publishers are very careful not to link reports of live cases to archived news reports about the same defendant. So, the chances of a juror seeing such material are fairly slim, provided they have not gone looking for it."
"By analogy, that is exactly what the media organisations have done here. They have provided direct links to Facebook from their reports. [Counsel] confirmed … that the comments that have been recovered have come from those posted on the profile page of each media organisation within Facebook itself. Comments on that page were comments within the media organisation's own profile page and the comments were able to be seen by anyone viewing the media organisation's profile page, particularly that part of it containing a report of the case. Using similar words to those used by Mr Grieve in his speech, by providing the links, I am satisfied the media organisations identified the haystack, placed a lot of needles on top of it and ascribed significance to numerous comments that would otherwise have had lesser significance if they had been solely within a member of the public's private Facebook page."
"In other words, each of them intends to continue to identify the haystack and the needles. The limit of any undertaking that any of them will give is that, if a request is made during the trial for a prejudicial comment to be hidden on a Facebook feed over which the organisation has control, the organisation will comply with the request. I do not regard that offer as sufficient to dislodge what, in my judgment last July, was a 'not insubstantial' risk of prejudice to the fair trial of the defendants. … Nothing that has happened since convinces me that the same might not occur again if there were to be open reporting of the retrial next February."
The 1981 Act
2. Limitation of scope of strict liability
(1) The strict liability rule applies only in relation to publications, and for this purpose "publication" includes any speech, writing, programme included in a cable programme service or other communication in whatever form, which is addressed to the public at large or any section of the public.
(2) The strict liability rule applies only to a publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced.
3. Defence of innocent publication or distribution
(1) A person is not guilty of contempt of court under the strict liability rule as the publisher of any matter to which that rule applies if at the time of publication (having taken all reasonable care) he does not know and has no reason to suspect that relevant proceedings are active.
(2) A person is not guilty of contempt of court under the strict liability rule as the distributor of a publication containing any such matter if at the time of distribution (having taken all reasonable care) he does not know that it contains such matter and has no reason to suspect that it is likely to do so.
(3) The burden of proof of any fact tending to establish a defence afforded by this section to any person lies upon that person.
4. Contemporary reports of proceedings
(1) Subject to this section a person is not guilty of contempt of court under the strict liability rule in respect of a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith.
(2) 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."
"…juries up and down this country have a passionate and profound belief in, and commitment to, the right of a defendant to a fair trial. They know that it is integral to their responsibility. It is, when all is said and done, their birthright. It is shared by each one of them with the defendant. They guard it faithfully. The integrity of the jury is an essential feature of our trial process."
"All that aside, however, in our judgment the juries in the second and third trials can be trusted to reach an unprejudiced verdict in relation to the alleged involvement in the offences of each and every individual defendant in accordance with the evidence".
The s. 4(2) Order