Full case report

Attorney-Generals Reference No. 3 of 1999 Application by the BBC to set aside or vary a Reporting Restriction Order

Reference [2009] UKHL 34
Court House of Lords

Judge Lord Phillips of Worth Matravers, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury

Date of Judgment 17 Jun 2009


Summary

Criminal procedure – Reporting restrictions – Broadcasters – Anonymity – Identity of defendant acquitted of rape – Art. 8 European Convention of Human Rights – Art.10 European Convention of Human Rights – s. 6(1) Human Rights Act 1998 – s. 35 Criminal Appeal Act 1968 – Criminal Appeal (Reference of Points of Law) Rules 1973


Facts

The BBC (B) applied to set aside a reporting restriction order imposed by the HL, under s.35 Criminal Appeal Act 1968 and the Criminal Appeal (Reference of Points of Law) Rules 1973, in relation to the identity of a defendant (D) acquitted of rape. D had been charged with rape on the basis of a DNA match following his arrest for an unrelated offence of burglary. The DNA evidence was ruled inadmissible in the rape case as his DNA record should have been destroyed after his acquittal for burglary. On further referral by the Att-Gen from the CA, which had held that the trial judge had no discretion to admit the evidence, the HL reversed that decision. B was commissioning programmes considering controversial acquittals, and the order prevented it from broadcasting the circumstances of D’s acquittal and discussing the possibility of a retrial other than anonymously.


Issue

Whether the disclosure of D’s identity engaged his rights under art.8, and if so whether that right outweighed B’s right of freedom of expression under art.10.


Held

(1) D’s acquittal for rape was not private, though the link that his DNA sample provided to the commission of the rape was. Publicising that link would suggest D’s guilt. D remained entitled to the presumption of innocence. This had a direct bearing on the approach to be taken to his art.8 right, which was found to be engaged.

(2) Revealing D’s identity would pursue a legitimate aim: B had a duty to impart information and ideas of public interest which the public had a right to receive. B’s programme related to the removal of the double jeopardy rule, which was a matter of real public interest. B legitimately believed that disclosure of D’s name would give added credibility. The facts of D’s acquittal were already in the public domain and he could not complain of a violation of his art.8 rights if the programme resulted in him being retried.


Comment

Their Lordships held that the interference with D’s art.8 right would be significant: Lord Hope at [22]: “the giving of publicity to the link would inevitably suggest that he is guilty of the offence…his reputation, his personality, the umbrella that protects his personal space from intrusion will just as inevitably be damaged by it”. However, this interference was ruled to be proportionate when account was taken of the weight to be given to B’s right to freedom of expression: Lord Brown at [69]: “On the particulars facts of this case…I find it difficult to regard D’s right to his reputation as outweighing that of the BBC to imperil that reputation by their proposed broadcast, a broadcast of undoubted public interest.” Other considerations which favoured the application were the facts that the victim herself had waived her right to anonymity and that D had entirely failed to respond to the application.


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Instructing Solicitors

Treasury Solicitor; BBC Litigation Department