Thursday, 18 June 2009

Freedom of expression triumphs over anonymity

The House of Lords yesterday delivered its decision in Attorney-General's Reference No 3 of 1999 [2009] UKHL 34.

The case dealt with an application by the BBC to broadcast a programme identifying an accused person acquitted of criminal charges that might be subject to re-trial. (The UK introduced provisions a few years ago in Part 10 of the Criminal Justice Act 2003 overturning the common-law prohibition on re-trial, based on the double-jeopardy rule.)

The Lords previously ordered that D's identity should be kept anonymous.

On the Attorney-General's reference, the Lords considered Article 8 (right to privacy) and Article 10 (freedom of expression and communication) under the European Convention for the Protection of Human Rights and Fundamental Freedoms. (Those provisions are similar, to s 13 and s 15, respectively, of the Charter of Human Rights and Responsibilities Act 2006.)

The Lords considered the balance between these competing rights favoured the BBC, and held that the earlier anonymity order should be discharged.

I'm not sure if this case is directly relevant to Victoria's charter, because our charter applies only to natural people, not to corporations.

Nevertheless, it's an interesting example of the balancing act courts perform when considering competing rights.


Jeremy Gans said...

The Charter's application to human beings should not be a bar to similar arguments here. The media may largely consist of corporations, but its audience largely consists of natural people. Their freedom of expression is at stake too, not just the media's. (Alas, the VCA apparently failed to appreciate this in the Underbelly litigation.)

Also, this case is a little more complex than your description indicates. The defendant wasn't acquitted by a verdict, but rather because a judge excluded DNA evidence linking him to his crimes because it was illegally retained on the UK DNA database. That meant that the defendant had a particular privacy interest in this case, which other acquitted defendants may not have. It also meant that he was very exposed to a re-trial (because the House of Lords later ruled that, as a matter of discretion, the evidence should have been admitted.) That the BBC's freedom of expression trumped those interests is a little surprising, and goes to show that the UK courts (if not the Victorian ones) take freedom of expression very seriously.

Kyle said...

Jeremy, I don't have your expertise on the Charter to gauge if the natural-person application might be a limitation or not.

Do you think a person might be able to argue the freedom-of-expression point in this sort of case here? (I didn't think of the Underbelly cases, but that's a pretty good example.) Would a (media) corporation need to identify natural people whose freedom of expression was restricted? Would they try it like the Beeb did: claiming to assert the right on behalf of the public? Or could one or more natural people argue the point?

You're absolutely right about the complexity of the case. (The perils of balancing brevity and detail!)

I've relied on A-G's Ref (3 of 1999) [2001] 2 AC 91 a few times as an illustration of judicial discretion. On my reading, the original case was about discretion and obligatory statutory provisions. (One Law Lord specifically relied on Australian cases on the discretion point: Bunning v Cross, R v Ireland and Ridgeway v The Queen.)

The A-G's Reference considered admissibility of DNA evidence in a rape prosecution. In January 1997, early one morning, 66 year-old Mrs B was tied up and raped in her bedroom. The offender left her in a cupboard, blocked by articles. She was found there by police 7 pm that night.

In January 1998, the accused was charged with burglary and a sample of his saliva was taken from him. He was acquitted of the burglary charge in August 1998, but the DNA profile was not destroyed, contrary to statute.

In October 1998 his DNA profile was matched to the rape victim. He was prosecuted, and the trial judge excluded the DNA evidence as the statute then required. The Court of Appeal rejected the prosecution appeal, deciding that the DNA evidence was illegal, and had to be excluded. There was no other evidence of the identity of the rapist.

The Lords held there was no law in Commonwealth countries obliging inevitable exclusion of unlawfully obtained evidence. On the effect of non-compliance with obligatory and discretionary statutory provisions, the Law Lords didn't refer to Project Blue Sky v ABA (1998) 194 CLR 355, but applied similar reasoning focussing on the effect of non-compliance. Because the statute didn't specify the consequence of non-compliance (in that case, failing to destroy the DNA evidence), the statutory provision providing for judicial discretion to exclude evidence was available to the trail judge. Balancing the DNA evidence, the circumstances it was obtained, its effect on the fairness of the trial, and the public interest in investigating and prosecuting such a serious crime, the Lords considered the DNA evidence ought not have been declared inadmissible.

I'm not sure if that means the defendant's privacy interest was any greater than any other acquitted defendant. I guess the difference in this case is that not only was he acquitted, but also the Attorney-General didn't attempt to re-try the defendant and so his Article 8 right to privacy took on a greater significance than when the Lords considered Article 8 in 1999? (Interestingly, several of the Law Lords in this application doubted the validity of the original anonymity order, but didn't decide the point.)

I think the interesting part in this case was the balancing between privacy, and legitimate public interest in a case that could be affected by the abolition of the double-jeopardy rule. As you say, it demonstrates the UK courts take it very seriously indeed.

Jeremy Gans said...

On the Charter, my reading is that there is no need to name a particular 'victim'. (The UK Human Rights Act might be different.) But, as in virtually all Charter things, others may read it differently. It all depends on the purpose of limiting the Charter to human beings. I find that hard to judge, because I disagree with that limitation.

On the UK DNA cases, the PACE (unlike Victoria's Crimes Act) didn't specify the legal consequences of unlawful retention. But it's clear (but for some arguments about retrospectivity) that retaining the defendant's DNA after his acquittal and the subsequent matching would have been a breach of the UK Human Rights Act.

The next step in the argument is that a later disclosure of that match to the public would also be an unlawful breach of the defendant's privacy. That's controversial, but plausible.

It may also be that, in light of the UKHRA, the UKHL's earlier ruling that the evidence was admissible might now have to be rethought. Given that, I imagine this would actually be a pretty poor case to test the many other controversies about the UK's repeal of the double jeopardy rule....