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

An acquitted defendant may have a reasonable expectation of privacy where publication would identify him through personal DNA information and imply his guilt. That privacy interest does not automatically prevail over freedom of expression.

The court must focus intensely on the particular rights in conflict, examine the justification for interfering with each right, and apply proportionality to both. The contribution of the publication to a debate of general public interest is decisive. Courts should respect the media’s editorial judgment about how information is presented.

Open justice ordinarily permits the identification of defendants, including those acquitted. Rules anonymising a respondent to an Attorney General’s reference protect identification within the reference proceedings; they do not confer wider immunity from publication.

After D had been acquitted of rape, the Attorney General referred a point of law concerning DNA evidence excluded at his trial. On 23 October 2000 the House of Lords made an order preventing publication of information likely to identify D. The reference was subsequently decided as Attorney General’s Reference (No 3 of 1999), [2001] 2 AC 91.

The BBC proposed a programme examining controversial acquittals and the power to order retrials following the abolition of the former double jeopardy rule. It applied to discharge or vary the order so that it could identify D, describe the DNA evidence and question the correctness of his acquittal.

The issues were whether the order had a proper legal basis, whether publication would engage D’s rights under article 8 of the Convention, and, if so, whether those rights outweighed the BBC’s article 10 right to freedom of expression.

1. Disposition. The House unanimously granted the BBC’s application and discharged the anonymity order. Lord Phillips agreed with the reasoning and conclusions of Lord Hope, Lord Brown and Lord Neuberger. Lord Walker agreed with Lord Brown and Lord Neuberger.

2. Source and scope of the power. Lord Hope considered it highly doubtful that section 35(3) of the Criminal Appeal Act 1968 or rules 3 and 6 of the Criminal Appeal (Reference of Points of Law) Rules 1973 authorised the wide prohibition imposed. Section 6(1) of the Human Rights Act 1998 requires a court to exercise an existing power compatibly with Convention rights, but does not create a power which the court otherwise lacks. The House nevertheless possessed an inherent jurisdiction to make orders necessary for proceedings before it. Lord Brown regarded the Convention balance as decisive. Lord Neuberger held that rules 3 and 6 were confined to preventing identification in the reference documents and during the reference hearing.

3. Article 8 engagement. Per Lord Hope, publication would engage article 8. The retained DNA profile was personal information linking an acquitted person to a grave offence. Publication would imply guilt, damage his reputation and personality, and engage the reasonable expectation of privacy owed to a person who remained entitled to the presumption of innocence. Lord Brown attached less weight to the original unlawfulness of retaining and using the sample, but accepted that the presumption of innocence was relevant to reputation under article 8.

4. Articles 8 and 10. Per Lord Hope and Lord Brown, neither right had automatic priority. The court had to focus intensely on the comparative importance of the specific rights, consider the justification for interfering with each, and apply proportionality to both. The proposed programme concerned the operation of retrial provisions and controversial acquittals. It therefore contributed to a debate of genuine public interest.

5. Editorial judgment and proportionality. Per Lord Hope, article 10 protected both the substance and form of journalistic expression. The court should not substitute its view for the media’s judgment that identification was needed to give the programme credibility and force. Although publication would significantly interfere with D’s privacy and carried a risk of trial by media, that interference was proportionate to the public interest and the BBC’s freedom of expression. Any later retrial could be protected by statutory and procedural safeguards.

6. Open justice. Per Lord Brown and Lord Neuberger, a reference should not place an acquitted person in a better position regarding publicity than if the point of law had been decided in another case. Criminal justice is ordinarily public and transparent. D’s trial, acquittal and identity had lawfully entered the public domain. There was no justification for preserving the wider immunity created by the order.

1. House of Lords, present application: The BBC’s application was granted unanimously and the anonymity order made on 23 October 2000 was discharged: [2009] UKHL 34.

2. House of Lords, Attorney General’s reference: On 14 December 2000 the House reversed the Court of Appeal’s answer to the referred point and held that section 64(3B) of the Police and Criminal Evidence Act 1984, read with section 78, left admissibility of the DNA evidence to the trial judge’s discretion: [2001] 2 AC 91. The anonymity order had been made at the start of that hearing.

3. Court of Appeal: The court had answered the referred question in the negative and further referred the point to the House of Lords. No citation is stated in the judgment.

4. Central Criminal Court: After the trial judge excluded the DNA evidence under section 64(3B) of the Police and Criminal Evidence Act 1984, the prosecution offered no evidence and D was acquitted.