Attorney-General's Reference No 3 of 1999: Application by the British Broadcasting Corporation to set aside or vary a Reporting Restriction Order

The House discharged the anonymity order dated 23 October 2000 which had purported to prohibit publication of the proper name of any person or place likely to lead to identification of the respondent to the Attorney-General's reference. The Law Lords concluded that the Criminal Appeal (Reference of Points of Law) Rules 1973 did not, on any sensible construction, authorise such a wide contra mundum restriction, and that it was doubtful the House had power under those rules to impose a general prohibition of publication. Even assuming the order could have been made, the decisive issue was whether discharging it would be incompatible with the respondent's rights under Article 8 of the European Convention on Human Rights. The court held that publication of the particular material proposed would engage Article 8 but, on the facts, the BBC's Article 10 right to freedom of expression and the public interest in the matters to be broadcast outweighed the respondent's Article 8 interest; the interference with privacy was proportionate. The anonymity order was therefore discharged.

This is an application by the British Broadcasting Corporation to set aside or vary an anonymity / reporting restriction order made by the House on 23 October 2000 in the course of the Attorney-General's reference of a point of law under section 36 of the Criminal Justice Act 1972. The Order purported to prevent publication of the proper name of any person or place likely to lead to identification of the respondent to the reference.

Background and facts:

• The respondent ('D') had been tried and acquitted in June 1999 of rape after DNA evidence was excluded by the trial judge under section 64(3B) of the Police and Criminal Evidence Act 1984; the Attorney-General referred a point of law leading to the House's later decision that the evidence could have been admitted (Attorney General's Reference (No 3 of 1999) [2001] 2 AC 91).
• A BBC production company wished to broadcast a programme about controversial acquittals after abolition of the double jeopardy bar for certain retrials under Part 10 of the Criminal Justice Act 2003; the proposed programme would identify D and discuss the DNA link and the possibility of retrial.
• The anonymity order, said to be made pursuant to section 35 Criminal Appeal Act 1968 and the Criminal Appeal (Reference of Points of Law) Rules 1973 (rules 3 and 6), operated to prevent the BBC from naming D in connection with the reference.

Nature of the application and issues:

• Relief sought: discharge or variation of the anonymity / reporting restriction order so that the BBC could identify D in its proposed broadcast.
• Key issues: (i) whether the House had power under the 1973 Rules or otherwise to make the order in the terms in which it was made; (ii) whether discharging the order would be incompatible with D's Convention rights under Article 8 (right to respect for private life) given the proposed publication, and if Article 8 was engaged whether it outweighed the BBC's Article 10 free expression rights; (iii) the proper balance between Articles 8 and 10 and the application of proportionality.

Court's reasoning (concise):

• The House expressed doubts about the application and scope of the 1973 Rules to a reference before the House and whether they could lawfully authorise a contra mundum non-publication order; however, the court considered it unnecessary to resolve the full vires question because the Human Rights Act 1998 requires the House to act compatibly with Convention rights in any event.
• The court held that publication of the link between D's retained DNA and the rape would engage Article 8 because identity and the fact of a link to a crime amount to personal information in respect of which D had a reasonable expectation of privacy, particularly given his acquittals and the concerns arising from retention of DNA profiles (S and Marper v United Kingdom was taken into account).
• On balancing, the House accepted that the BBC's proposed broadcast pursued a legitimate aim and that the form and detail of reporting are matters for journalistic judgment; considering proportionality the court concluded that, on the facts, the public interest in informed debate about the implications of removal of the double jeopardy rule and the subject matter of the programme justified the interference with D's Article 8 rights. The anonymity order was therefore discharged.

Procedural posture: the application was heard in this House following the Attorney-General's reference proceedings and representations from the BBC and from Lord Pannick QC as amicus curiae; D was served but did not appear.

Appeal allowed: the anonymity / reporting restriction order of 23 October 2000 was discharged. The House concluded that the 1973 Rules did not plainly authorise so wide a contra mundum restriction and, in any event, on the facts the Article 10 right to freedom of expression and the public interest outweighed the Article 8 privacy interest; discharge was proportionate.

Attorney-General's reference under section 36 of the Criminal Justice Act 1972 to the Court of Appeal and on further reference to the House of Lords; the House had previously decided the point of law in Attorney General's Reference (No 3 of 1999) [2001] 2 AC 91. The present application to discharge the anonymity order was determined by the House of Lords ([2009] UKHL 34).