Case No: A2/2007/0520 
Neutral Citation Number: [2007] EWCA Civ 280
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION 
(MRS JUSTICE SWIFT)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Monday, 12 March 2007
Before:

SIR ANTHONY CLARKE
(THE MASTER OF THE ROLLS)

LORD JUSTICE DYSON
and
LORD JUSTICE THOMAS
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Between:

	HER MAJESTY’S ATTORNEY GENERAL	Respondent	
	
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BRITISH BROADCASTING CORPORATION	
Applicant/
Appellant	

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(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

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MR D PANNICK QC and MR W BARCA (instructed by the BBC Litigation Department, LONDON W12 7TQ) appeared on behalf of the Appellant.

MR P HAVERS QC and MR J HYAM (instructed by the Treasury Solicitors) appeared on behalf of the Respondent.
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Judgment
Sir Anthony Clarke, MR:
1.	This application relates to the so called “Cash for Honours” inquiry being conducted by the Metropolitan Police, which has attracted considerable publicity.  The inquiry is in two parts: first, an investigation into whether honours have been bestowed in exchange for financial assistance; and second, an investigation into whether there has been an attempt to pervert the course of justice in connection with the investigation.  In this application we are concerned only with the second part of the investigation.
2.	This is an application for permission to appeal by the BBC against an order of Swift J made last Thursday 8 March 2007 refusing to discharge part of an order made by Wilkie J during the evening of the previous Friday 2 March.  The order made by Wilkie J was made on the application of the Attorney General and was made against the BBC.  Paragraph 1 of the order provided: 
“[The BBC] whether by itself, its servants, agents or otherwise be restrained until trial or further order from broadcasting, publishing or otherwise disclosing the contents of any document in which it is alleged, directly or inferentially, by Ruth Turner that she was asked by Lord Levy to lie for him about the ‘Cash for Honours’ police investigation.”
Paragraphs 2, 3 and 5 of the order were in these terms: 
“2.  The hearing is to be treated as if held in private.

 3.  This Order is to be and remain confidential to the parties.
 5.  Save with the permission of the court or the agreement of the [Attorney General] counsel for [the BBC] may provide details of the reasons given for making this order only to those persons listed in Schedule B hereto and only after those persons have undertaken not to disclose those reasons.”
3.	As Swift J put it, those paragraphs were designed to ensure that the object of the injunction was not frustrated by the publication of details of what had taken place during the hearing or the contents of the judge’s judgment.  
4.	The application before Swift J and indeed the hearing before us has been concerned with those three paragraphs.  The persons referred to in Schedule B included the Director General of the BBC and were included so as to enable instructions to be taken with regard to a possible appeal.  Wilkie J granted permission to appeal. 
5.	The Attorney General did not seek to restrain the BBC from reporting the mere fact that he had applied for and obtained an injunction against the BBC in connection with the “Cash for Honours” investigation.  As a result during the weekend of 3 to 4 March 2007, the national media, which were unaware of the terms of the injunction, published extensive reports about the Attorney General’s “gag” on the BBC, what was likely to be the subject of the injunction, and the progress of the investigation.  On Monday 5 March, a week ago today, in the light of the media coverage over the weekend, the Attorney General agreed to a variation of the injunction so that it read:
“[The BBC] whether by itself, its servants, agents or otherwise be restrained until trial or further order from broadcasting, publishing or otherwise disclosing the contents of any documents in which it is alleged, directly or inferentially, by Ruth Turner that she was asked by Lord Levy to lie for him about the ‘Cash for Honours’ police investigation so that nothing in the Order shall prevent [the BBC] from identifying Ruth Turner as the sender and Jonathan Powell as the recipient of the document relating to the  said investigation or from stating that Lord Levy was the subject thereof.”
A consent order was made to that effect.
6.	Some time in the late afternoon or evening of 5 March the Attorney General applied to Swift J as the duty judge for an injunction in the same terms, that is the terms as varied, against The Guardian newspaper.  However, it became apparent during the hearing that the first edition of The Guardian, comprising 20,000 to 30,000 copies, was in the process of printing and distribution with no practical means of recalling it.  In those circumstances, given the fact that the injunction was already in effect in the public domain, Swift J did not regard it as appropriate to grant the injunction sought.  On the next day, Tuesday 6 March, the Attorney General agreed with the BBC that save for three paragraphs, Friday’s injunction should be discharged.  Swift J accordingly made an order to that effect.
7.	That left three paragraphs of the order still in force.  They were paragraphs 2, 3 and 5 which I have already quoted.  The BBC sought the discharge of those paragraphs of the order before Swift J on the afternoon or evening of 7 March.  She gave judgment refusing the application on the morning of 8 March last Thursday.  She delivered her judgment in private, although a little later she delivered a truncated judgment in public.  She refused permission to appeal.  
8.	The BBC now seeks permission to appeal against her order.  On Friday 9 March I directed that the application for permission to appeal be heard today, with the appeal to follow if permission is granted.  We grant permission to appeal. 
9.	In order to put the appeal in context it is necessary to return to the events before Wilkie J.  No evidence as such was put before him. The only document we have seen is an undated application notice which was issued on 5 March, which was of course the Monday after the Friday when the order was made.  The application notice is signed by Mr A P Chapman and includes the following: 
“I am advised by Detective Superintendent McNulty, who is leading the police investigation, that the disclosure of such information would create a substantial risk that the investigation would be seriously impeded and/or prejudiced.”
10.	Mr Chapman signed the Statement of Truth at the bottom of the form.  No further and better particulars were given of the statement and no statement has subsequently been lodged stating in the form of evidence what Wilkie J was told by Mr Havers QC on behalf of the Attorney General.
11.	I refer to the fact that no subsequent written evidence was lodged with the court not because it has any bearing on our decision or because I wish to be critical of any one concerned in this case, but because it raises a point of some practical  importance.  It seems to me that when an urgent application is made to a judge for interlocutory injunctive relief (whether in this or any other class of case) and counsel puts facts or evidence before the court orally, such facts and evidence should subsequently be put into the form of a statement or statements which should bear a declaration of truth.  In this way there should be no confusion or misunderstanding as to what the claimant’s evidence is.  I will return to the evidential or other basis for the application to Swift J in a moment.
12.	The application to Wilkie J was expressed to be made: 
“because the disclosure of such information would amount to a contempt of court under the strict liability rule pursuant to Sections 1 and 2 of the Contempt of Court Act 1981.”
Sections 1 and 2 of the 1981 Act provide so far as relevant: 
“1  In this Act “the strict liability rule” means the rule of law whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so.
2(2) The strict liability rule applies only to a publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced.”
It is not in dispute that the BBC’s proposed broadcast would have been a publication within the meaning of 2(2).  
13.	In giving his reasons granting the Attorney General’s application Wilkie J had regard to articles 6 and 10 of the European Convention on Human Rights and to section 12(3) and (4) of the Human Rights Act 1998 [the HRA]. Articles 6 and 10 provide so far as relevant:
Article 6
Right to a Fair Trial:
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law …”   

Article 10
Freedom of Expression:
“1. Everyone has the right to freedom of expression.  This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority …
“2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
Section 12 of the HRA provides so far as relevant: 
“(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression…
“(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.
“(4) The court must have particular regard to the importance of the Convention right to freedom of expression …”
14.	It was common ground before Wilkie J that the question was whether he was satisfied to the criminal standard that the publication would infringe Section 2 (1) and (2) of the Contempt of Court Act 1981, namely that:
“[The publication would create] a substantial risk that the course of justice in the proceedings in question would be seriously impeded or prejudiced.”
After considering the submissions made on both sides Wilkie J expressed his conclusions as follows:
“I have not found this at all an easy question to answer but in my judgment I am sure that were the BBC to publish the story which it wishes to even in the terms I have referred to that the centrality of this document its existence and the knowledge of its existence to the investigation, that depriving the police of the ability to reveal this document to the current suspects or witnesses at the time and circumstances of their choosing that would give rise to a substantial risk that this investigation is seriously prejudiced.”
15.	In her judgment on 8 March Swift J gave a clear and -- it is common ground for present purposes -- complete account of what Mr Havers had told Wilkie J.  She observed that the material deployed went further than the subject matter of the document at issue.  It emanated from the police officers responsible for conducting the information. Swift J observed that if Wilkie J’s order were discharged in its entirety, all that material would be released into the public domain.
16.	Although on one view it was for the BBC to discharge the remaining paragraphs of the injunction, the judge treated the application before her as an application by Mr Havers on behalf of the Attorney General for a variation of Wilkie J’s order by seeking an order that the remaining paragraphs remain subject to the order.  On that basis the judge correctly said that the application was made under CPR 39.2, which provides so far as relevant:

“39.2 (1) The general rule is that a hearing is to be in public… 
3) A hearing, or any part of it, may be in private if – 
a) publicity would defeat the object of the hearing… 
c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality … or
g) the court considers this to be necessary, in the interests of justice.” 
17.	The judge said that the application was made under rule 39.2 (3) (c) and (g).  She said in paragraph 7: 
“7. Under that rule the test that I have to apply is very different from that which governed the application before Wilkie J on Friday. He had to determine whether he was satisfied, on the criminal standard of proof, that the proposed publication created a substantial risk that the course of justice will be seriously prejudiced. That is a significantly higher threshold.”
Mr Pannick QC submits that the judge erred in principle in holding that the threshold adopted by Wilkie J on 2 March was significantly higher than the approach that should be adopted under rule 39.2(3).  
18.	I will return to the test in a moment but first refer to Mr Havers’ key submission, which was the same before Swift J as it had been before Wilkie J.  It was that, absent the injunction, there was a substantial risk that the course of justice would be impeded or prejudiced because there was a substantial risk that the police investigation would be impeded or prejudiced.  
19.	Both the nature of Mr Havers’ submission and the judge’s conclusion on this central point can be seen from paragraph 19 of her judgment as follows: 
“19.  I accept Mr Havers’ submission that to publish authoritative statements about matters such as the police’s current perception of the importance of the document, their current uncertainty about whether Mr Powell received the document, their particular interest in that matter, their intention to question Mr McTurnon about the document, and the suggestion that his status might change from that of witness and suspect, could well result in prejudice to the conduct of the investigation and therefore to the cause of justice.”
There were two other matters which the judge took into account, to which I will return, namely risk of prejudice to interviewees and confidentiality.  But the argument advanced on behalf of the Attorney General centered on the suggested risk of prejudice to the investigation and thus to the course of justice.  
20.	I return to the test.  Mr Pannick submits that CPR 39.2 is concerned only with whether the hearing is to be in public.  He submits that the mere fact that the court directs that it take place in private does not mean that any publication of proceedings at the hearing is a contempt of court.  He relies upon Section 12 of the Administration of Justice Act 1960, which provides to far as relevant: 
“1. (1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say — …
(e) where the court (having power to do so) expressly prohibits the publication of all information relating to the proceedings or of information of the description which is published.”

21.	Mr Pannick also relies upon the decision of this court in Hodgson v Imperial Tobacco Limited [1998] 1 WLR 1056 especially per Lord Woolf, MR giving the judgment of the court at pages 1070 and 1072.  At page 1070 D Lord Woolf said that proceedings in chambers are always correctly described as being conducted “in private” and at page 1072 he described the principles referable to proceedings in chambers as including:
“(4) To disclose what occurs in chambers does not constitute a breach of confidence or amount to contempt so long as any comment which is made does not substantially prejudice the administration of justice.”
22.	It is however important to note that Hodgson v Imperial Tobacco was decided before the Civil Procedure Rules.  Since then it has been held in Economic  Department of the City of Moscow v Bankers Trust Company [2004] EWCA Civ 314 [2005] 1 QB 202 that the word “private” in rule 39.2 means the same as “secret”.   Lord Justice Mance said at paragraph 22: 
“It may be equated with the old ‘in camera’ procedure, rather than the old ‘in chambers’ procedure.”
In these circumstances Mr Havers submits that rule 39.2 gives the court power to order a hearing in private i.e. in secret, and that such an order satisfies the exception in section 12(1)(e) of the Administration of Justice Act 1960 so that publication of anything said during such a hearing is a contempt of court.  
23.	He submits that there is no support for the proposition that the criminal burden of proof is applicable to applications under rule 39.2.  Mr Pannick submits on the other hand that publication would only be a contempt if a specific order was made under Section 4 of the Contempt of Court Act 1981.  
24.	It is not necessary for us to resolve these issues in this appeal.  There may well be orders made under rule 39.2 which do not necessitate the application of the criminal standard of proof.  However, all depends upon the circumstances.  As already stated, it was common ground before Wilkie J that in order to succeed, the Attorney General had to make the judge sure that, absent an injunction, there was a substantial risk that the investigation would be seriously prejudiced.  It was not suggested before us that common ground was wrong.  It seems to us that where, as here, the Attorney General seeks to maintain the disputed paragraphs on the same basis, namely a substantial risk that the investigation would be seriously prejudiced, he must satisfy the same standard of proof as when he sought a wider injunction.  As Swift J observed, the orders made in the disputed paragraphs were made in order to ensure that the object of the principal injunction was not frustrated. The object was to avoid the investigation being seriously prejudiced. Now that the paragraphs stand alone but with the same object, both logic and principle lead to the conclusion that the standard of proof should be the same.  For these reasons I would accept Mr Pannick’s submission that the judge erred in principle in holding that the threshold was significantly higher before Wilkie J.  
25.	I would only add this.  It was suggested in argument that there may be cases in which a claimant might wish to disclose confidential information to a court on the basis that the hearing was in private and that the information should remain private and not be published even if the substantive application failed. This is not such a case because that was not the basis upon which the application was made.  In such a case I would expect the position to be made clear to the judge, and indeed the defendant, at the outset although I would not go so far as to say that there might not be exceptions to that approach.  On the facts here, as Mr Pannick observed, no application was made for the hearing to be in private until after Wilkie J gave his judgment, when it was agreed that it was to be treated as having been in private.  The note of the hearing shows that it was appreciated by those advising and appearing for the Attorney General that the hearing was in public or at least potentially in public because in relation to one aspect of the evidence Mr Havers said that he could not give a reason why the police wanted to know whether Mr Powell received the central document in the case because: 
“That would be to say more than I am prepared to say in open court”.
26.	I turn to the facts.  The judge identified the material which Mr Havers contended should not be published as falling into three different categories.
A) Police Strategy. 
The judge summarised the police view under this head as expressed to Wilkie J on behalf of the Attorney General as follows:
“The ‘real concern’ of the police officers investigating this matter is that that they wish to put the document and its contents to several individuals ‘who may be suspects in the case’.  
“The police wish in particular to put the contents of the document to Mr Powell and Mr John McTernan, political secretary at No 10 Downing Street, and also to Ms Turner.  I was told that that remains their intention.  
“The police considered that there was a risk that if information about the document was published, this would remove the imitative from the police and give potential interviewees the opportunity to obtain a copy of the document, to construct a response to it, and consequently to frustrate the investigation. There were other references during the course of the hearing to these matters.”
B) Material of a Factual Nature. 
The judge summarised the police position as it was put to Wilkie J thus: 
“The police regard the document in question as ‘the key document’ relating to that part of the investigation directed towards any perversion of the course of justice, though also the part relating to the sale of honours.  Its deployment was therefore ‘a matter of real interest and concern to the investigating officers’, and it was for that reason that they were concerned about it receiving advanced publicity in the media.  
“The document is not an email. This was in response to a contention by Mr Andrew Caldicott QC, who represented the BBC on Friday, that the fact that the police were in possession of emails was already in the public domain as result of a story in the Sun Newspaper. 
“There is a real question mark as to whether Mr Powell, to whom the document was addressed, ever received it. Mr Havers went on to say that, for reasons he was not prepared to divulge, the investigating officers were very interested to discover whether he did so or not.  
The document does not just contain what is said, it runs to several pages and contains far more information.  All these factual matters confirm information which had been given to Mr Havers by the police officers engaged in the investigation.”
C) Mr McTernan. 
The judge’s summary of the Attorney General’s case was this:
“Mr McTernan was one of the individuals whom the police wished in particular to interview in connection with the document.
“Mr McTernan was not directly connected with the document and yet may be as important as the others in this investigation. When the judge pointed out that, hitherto, Mr McTernan had been treated as a witness and not as a suspect as yet, Mr Havers agreed but observed that ‘it was a developing investigation’.”
27.	Mr Havers submitted to the judge, as he has submitted to us, that there should be no interference with the police strategy.  They must be left to carry out their investigations as they think fit, which involves not forewarning those likely to be reinterviewed (whether as witnesses or suspects) of police thinking.  In particular, it was contrary to the public interest to reveal any uncertainty in the minds of the police.  In short, it would be highly damaging for potential interviewees to be informed about police thinking and strategy or for the police thinking and strategy to be placed into the public domain.  As to the facts, it would be damaging for those concerned to know that the document was not an email and that it was not a short document or that the police were uncertain about the role of Mr Powell vis-à-vis the document.  As to Mr McTernan it would be unhelpful for details of information confidential to the police to be disclosed to him.  
28.	The judge weighed the submissions on either side and finally set out her conclusions in paragraph 19, which I have already quoted. 
29.	I have reached the conclusion that the judge’s conclusions cannot be supported.  For the reasons I have already given, I do not think she applied the correct test.  I recognise that if, contrary to that view, she did apply the correct test, this court will not interfere with her decision unless persuaded that she was plainly wrong.  I am so persuaded.  In my opinion the judge’s conclusions do not sufficiently have regard to the fact that the injunction which the Attorney General principally sought with regard to the document has now been discharged.  I can understand the police concerns with regard to the document itself and, indeed, the judge’s description of those concerns as put to Wilkie J by Mr Havers demonstrates their fears.  Hence the real concern was to be able to put the documents to interviewees and not to give potential interviewees opportunities to obtain copies of the documents in advance and thus enable them to prepare responses in advance, with the possible result that the interviews would be frustrated.  Hence also the concern was about advance publicity of the document.  
30.	In my judgment, however, once the injunction which relates to the document itself was discharged, those concerns no longer have the force they had before.  It seems to me that publication of the fact that the document is an email and is longer than might have been thought is most unlikely to have any significant impact on the investigation.  I would accept Mr Pannick’s submission that there is a considerable element of speculation about the residual concerns of the police.  There is no convincing evidence that any of those named is likely to take steps to obstruct the investigation if what Wilkie J and Swift J were told is made public.  There is I think much force in Mr Pannick’s submission that, in the light of what has already been published, all those named will expect to be asked questions about the documents and will carefully prepare their answers.  That must include Mr McTernan, who must know that there is a document and will no doubt prepare for any future interview. There is a suggestion that one or more of the potential interviewees will prepare to respond dishonestly in future interviews if the disputed paragraphs in the order are not discharged.  However, to my mind that is really only speculation and unsupported by evidence.
31.	In all these circumstances I would not uphold the conclusion in so far as it accepts the submission that there would be a substantial prejudice to the conduct of the investigation if these paragraphs do not remain in force which was, after all, the principal thrust of Mr Havers submissions.
32.	In paragraph 20 of her judgment the judge added a concern of her own which was not suggested by counsel or indeed by Wilkie J.  She said this: 
“I have another concern about the publication of the material relating to the questioning of suspects or potential suspects.  The submissions made by Mr Havers at Friday’s hearing refer to the prospective interviewees being given ‘the opportunity to construct a response’, as a result of which the investigation would, he said, be frustrated. He also spoke of the police’s concern that the interviewees would try to obtain a copy of the document before interview. He observed that Mr Powell was ‘bound’ to ask Miss Turner if she had a copy of the document. Mr Caldecott referred to the possibility of the witnesses changing or improving their stories. The judgment referred to the fact that the witnesses might discuss the document if published, and might co-ordinate their responses in advance of their interviews. 
“It seems to me that, in the context of a serious criminal investigation, disclosure of the fact that the police considered that the suspects, or potential suspects, might, if they were made aware of the existence of the document, dishonestly tailor their evidence as a result, and that this possibility had been acknowledged in court by lawyers and by the judge, may cause considerable prejudice to the individuals concerned, and conceivably to any future proceedings against them. It cannot, in my judgment, be in the interests of justice for this material to be released into the public domain. I do not accept Mr Barker’s submission that it must now be clear to all that the reason that the Attorney General applied for the injunction was because of a concern that suspects, or potential suspects, might prepare their answers in advance of questioning. There might be speculation that this was the case, but there is a world of difference between speculation and clear authoritative statements that such concerns were indeed harboured by the police and that their possible validity was acknowledged by participants in Friday’s hearing.”
33.	In my judgment there is really no evidence in support of these concerns.  There is certainly no evidence that anyone brought to trial would not receive a fair trial; see for example the powerful considerations in the recent decision of the Court of Appeal Criminal Division led by the Lord Chief Justice in Regina v Abu Hamza [2006] EWCA Crim 1918, [2007] 2 WLR 226.  Nor is there any reason to think that any particular proposed interviewee would be prejudiced.  They will no doubt have the benefit of legal advice throughout and I see no basis for real concern that they will not be able to deal with any questions that might be asked, whether or not the disputed the paragraphs are retained in the order.  
34.	Finally the judge said this about confidentiality: 
“In addition, I am satisfied that there is confidential information contained within that material and that publicity would damage that confidentiality. I have in mind in particular the material about factual issues and material concerning the police’s intentions with regard to Miss Turner, Mr Powell and Mr McTernan.”
As to that, for my part I do not see how the Attorney General can succeed on this basis if he does not succeed on the basis of the primary way he put the case.  
35.	For all these reasons I would allow the appeal.  As I see it, subject to any particular submission which may be made by counsel, this will mean that the argument before Wilkie J and Swift J, the judgments of both judges, the various orders made by both judges, the argument in this court and our judgments will all be in the public domain.
Lord Justice Dyson:  
36.	I agree
Lord Justice Thomas:  
37.	I also agree. 

Order: Appeal allowed.