Times contempt challenge thrown out in Strasbourg
8 February 2012
The European Court of Human Rights has rejected as “inadmissible” Times Newspaper’s challenge to its 2009 conviction for contempt of court. The decision, which was made by seven judges, is a good example of an early stage “strike-out” by the Court which is nonetheless a substantial, reasoned decision (see our posts on the “UK loses 3 out of 4 cases at the court” controversy).
It has been a bad 24 hours for The Times, with its editor being recalled to the Leveson Inquiry into press ethics yesterday to answer questions about the hacking of a police blogger’s email account to reveal his secret identity, and subsequent disclosure (and lack thereof) to the High Court. Ultimately, James Harding appeared to blame the Times’ now-departed in-house lawyer as well as “legal privilege” – see Professor Richard Moorhead’s excellent post on the ethical issues surrounding this.
Returning to 2007, Mr Seckerson, the other applicant to the European Court, sat on a jury in 2007 involving the conviction of a childminder for killing a baby by violently shaking it. He was interviewed by The Times, which published the following quotes: “…the consensus was taken three minutes after the foreman was voted in. It was 10-2 against, all based on the evidence. After that, there was not going back” and “Ultimately the case was decided by laymen and laywomen using that despicable enemy of correct and logical thinking, that wonderfully persuasive device, common sense”.
The following summary is taken from the Court’s press release:
Following interviews by the police and an application by the Attorney General, the two applicants were found guilty of contempt of court under section 8 (1) of the 1981 Contempt of Court Act, which prevents certain details of jury deliberations being disclosed or published. They were fined and Times Newspaper company was ordered to pay costs of over 27,000 GBP.
The judge emphasised the need to keep secret the deliberations of juries, given that jurors’ confidence to express views depended on their knowledge that the views would not be revealed outside the jury room.
Relying on Article 10, the applicants complained that the finding of contempt of court, the fines imposed and costs ordered were incompatible with their right to freedom of expression.
The Court recalled that freedom of expression was one of the essential foundations of a democratic society and that in that context the safeguards guaranteed to the press were particularly important. However, Article 10 of the European Convention on Human Rights did not guarantee a wholly unrestricted freedom of expression to the press, even with respect to press coverage of matters on serious public concern.
The Court emphasised that rules imposing requirements of confidentiality of judicial deliberations played an important role in maintaining the authority and impartiality of the judiciary, by promoting free and frank discussion by those who were required to decide the issues which arose. It was therefore essential that jurors be free to air their views and opinions on all aspects of the case and the evidence before them, without censoring themselves for fear of their general views or specific comments being disclosed to, and criticised in, the press.
It reiterated its previous finding in the case of Gregory v. the United Kingdom, 25 February 1997, § 44, that the rule governing the secrecy of jury deliberations was a crucial and legitimate characteristic of English trial law which served to reinforce the jury’s role as the ultimate arbiter of fact and to guarantee open and frank deliberations among jurors. It concluded that even an absolute rule could not be viewed as unreasonable, given that any qualification would necessarily lead to an element of doubt which could undermine the very objective which the rule sought to secure.
As to whether the disclosures by the applicants in the case offended against the secrecy of the jury deliberations, the Court first observed that it was not being asked to examine the rule in circumstances involving a conviction for research into jury methods or in a case where the interests of justice could be said to require the disclosure of the jury’s deliberations.
It noted that the published comments had revealed the opinions of the majority 10 jurors in the childminder’s case at an early stage of a long deliberation, had revealed Mr Seckerson’s assessment of their opinions and statements and had disclosed their approach to the evidence in the case. The Court was satisfied that these disclosures had breached the secrecy of jury deliberations.
Consequently, the UK courts’ finding the applicants guilty of contempt of court, the imposition of the fines on both applicants, and the award of costs against the second applicant had been proportionate to the legitimate aim of maintaining the authority and impartiality of the judiciary, and necessary within the meaning of the Convention.
The Court decided to join the applications and declared them inadmissible.
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