HM Attorney General v British Broadcasting Corporation

Where ancillary confidentiality provisions serve the same purpose as a principal publication injunction, the applicant must satisfy the same standard of proof. Residual risk must be assessed after the principal restraint has been discharged. Speculation about possible obstruction, dishonest preparation or prejudice is insufficient without convincing evidence of a substantial risk of serious prejudice. Confidentiality and fair-trial concerns cannot ordinarily sustain restraint where the primary case for it fails.

The Attorney General obtained an urgent order restraining the BBC from publishing material concerning the police investigation into an alleged attempt to pervert the course of justice in the Cash for Honours inquiry. The order also required the hearing and reasons to remain private. After the principal restraint was varied and then discharged, the BBC sought discharge of the remaining confidentiality provisions under Civil Procedure Rules 1998, rule 39.2.

Swift J refused the application. The BBC appealed, challenging the applicable test and the continuing reliance on possible prejudice to the police investigation, prospective interviewees and confidentiality. The central issue was whether the remaining provisions should continue to restrain publication.

1. Appeal allowed. Permission was granted and the appeal against Swift J’s refusal to discharge paragraphs 2, 3 and 5 of the order was allowed. The court directed that the arguments, judgments, orders and appellate proceedings should enter the public domain, subject to any specific submission by counsel.
2. The court did not need to determine generally whether every order under rule 39.2 requires proof to the criminal standard, or whether publication of material from a private hearing is contempt without a specific order under section 4 of the Contempt of Court Act 1981. The applicable standard depends on the circumstances.
3. Here, the Attorney General had accepted before Wilkie J that he had to satisfy the judge, to the criminal standard, that publication created a substantial risk that the investigation would be seriously prejudiced. The remaining provisions had been made to preserve the same object as the principal injunction. The same standard therefore applied to their continuation. Swift J erred in treating the threshold before Wilkie J as significantly higher.
4. Once the restraint on publication of the document itself had been discharged, concerns about advance publicity and interviewees preparing responses had substantially weakened. Publication of limited factual matters about the document was most unlikely to have a significant investigative impact.
5. The asserted risks that interviewees would obstruct the investigation or tailor dishonest answers were speculative and unsupported by convincing evidence. There was no sufficient evidential basis for concluding that the investigation would be substantially prejudiced, that proposed interviewees would be prejudiced, or that future defendants would not receive a fair trial. The court referred to Regina v Abu Hamza [2006] EWCA Crim 1918; [2007] 2 WLR 226.
6. The confidentiality ground could not independently sustain the continuing restraint where the primary case based on investigative prejudice failed. The court also gave practical guidance that facts or evidence placed before a judge orally in an urgent interlocutory application should subsequently be recorded in signed statements bearing a declaration of truth.

1. Court of Appeal (Civil Division) — [2007] EWCA Civ 280: permission to appeal granted and appeal allowed.
2. High Court of Justice, Queen’s Bench Division — Swift J refused permission to appeal and refused to discharge the remaining confidentiality provisions on 8 March 2007. The original injunction had been made by Wilkie J on 2 March 2007 and was later varied and partly discharged by consent.