The Times Law Report of Court of Appeal decision in BBC injunction case

From The Times
March 14, 2007
BBC broadcast ban not justified

Court of Appeal

Published March 14, 2007

Attorney-General v British Broadcasting Corporation

Before Sir Anthony Clarke, Master of the Rolls, Lord Justice Dyson and Lord Justice Thomas

Judgment March 12, 2007

The British Broadcasting Corporation were entitled to the discharge of an injunction obtained by the Attorney-General, which had restrained them from broadcasting details of the hearings, judgments and orders in injunction proceedings relating to the cash for honours investigation.

The Court of Appeal so stated when giving permission and allowing an appeal by the BBC from Mrs Justice Swift who, on March 8, 2007, refused to discharge parts of an order made by Mr Justice Wilkie forbidding the publication of details of a hearing before him.

On March 2, 2007, the Attorney-General obtained from Mr Justice Wilkie an injunction restraining the BBC from publishing a story about the contents of a document written by Ruth Turner, director of government communications at 10 Downing Street, addressed to Jonathan Powell, Chief of Staff at Downing Street, which could be understood, directly or inferentially to suggest that Lord Levy, one of the persons under investigation in the cash for honours investigation, had sought to influence what Ms Turner said to the police.

The injunction included the following terms: (1) that the BBC whether by itself, its servants, agents or otherwise be restrained until trial or further order from broadcasting, publishing or otherwise disclosing the contents of any document in which it was alleged, directly or inferentially, by Ruth Turner that she was asked by Lord Levy to lie for him about the cash for honours police investigation; (2) that the hearing be treated as if held in private; (3) that the order be and remain confidential to the parties; and (5) that save with the permission of the court or the agreement of the Attorney-General, counsel for the BBC might provide details of the reasons given for making the order only to six named persons within the BBC.

Paragraphs (4) and (6) to (14) were not relevant for present purposes.

Having agreed, on March 5, to vary paragraph (1) to permit the BBC to identify Ruth Turner as the sender and Jonathan Powell as the recipient of the document and to state that Lord Levy was the subject of it, the At-torney-General, on March 6, agreed to the discharge of the order, save for paragraphs (2), (3) and (5). Mr David Pannick, QC and Mr Manuel Barca for the BBC; Mr Phillip Havers, QC and Mr Jeremy Hyam for the Attorney-General.

THE MASTER OF THE ROLLS said that the object of paragraphs (2), (3) and (5), when the order was made, was not to frustrate the injunction in paragraph (1).

No evidence was put before Mr Justice Wilkie in support of the application for injunctive relief and no written evidence had subsequently been lodged. That raised a point of practical importance.

When an urgent application was made for interlocutory injunctive relief and the facts in support of the application were presented by counsel, those facts should subsequently be put in the form of witness statements with a declaration of truth so that there was no dispute about what evidence was before the court.

It was common ground that in granting paragraph (1) of the injunction Mr Justice Wilkie had to be satisfied to the criminal standard that publication of the document would infringe sections 1 and 2 of the Contempt of Court Act 1981.

The Attorney-General sought to maintain paragraphs (2), (3) and (5) of the order on the same grounds.

Mrs Justice Swift erred in principle in saying that the test she had to apply was very different from that which governed the application before Mr Justice Wilkie.

Mrs Justice Swift identified the material Mr Havers said should not be published as falling into three categories: A Material relating to policy strategy in conducting their future investigations. As to that, the judge said that the real concern of the police was that they wished to put the document to several individuals who might be suspects. They considered that there was a risk that if information about the document was published, that would give potential interviewees the opportunity to frustrate the investigation.

B Material of a factual nature: The police regarded the document in question as a key document in the investigation into the perversion of the course of justice, whose deployment was a matter of real interest and concern and the police were for that reason concerned about it receiving advanced publicity in the media. The document was not an email, it ran to several pages and contained far more information. There was a real question mark as to whether Mr Powell, the addressee, ever received it and the investigating officers were very interested to discover whether he did so or not.

C Material related to Mr John McTer-nan, director of political operations at Downing Street.

Mrs Justice Swift accepted Mr Havers’s submission that publication of the relevant material could well result in prejudice to the conduct of the investigation and therefore to the course of justice.

That conclusion could not be supported. The judge had not applied the right test and his Lordship was persuaded that she was plainly wrong. She did not have sufficient regard to the fact that the principal injunction had been discharged.

The fact that the document was not an email and was longer than was thought did not have a significant impact on the investigation.

The suggestion that potential interviewees would respond dishonestly was speculation and unsupported by the evidence. The conclusion that there would be substantial prejudice to the investigation if the injunction did not remain in force was not upheld.

His Lordship would allow the appeal.

Lord Justice Dyson and Lord Justice Thomas agreed.

Solicitors: Ms Elizabeth Grace, Shepherd’s Bush; Treasury Solicitor.