Rulings by Lord Hutton
THE HUTTON INQUIRY
IN THE MATTER OF APPLICATIONS BY ITN, BSkyB, CHANNEL 4, CHANNEL 5, ITV AND IRN RADIO
RULING BY LORD HUTTON
5 AUGUST 2003
A Press Notice issued on my behalf on 24 July 2003 by the Secretary to the Inquiry, Mr Lee Hughes, contained the following paragraphs:
Mr Hughes said that the public hearings of the Inquiry will, of course, be open to the media. The press and other sections of the media will be able to report the entirety of the public hearings, save that it is Lord Hutton's present intention that the evidence of witnesses to the Inquiry and applications in the course of the Inquiry will not be filmed or broadcast. However, TV filming and radio broadcasting of opening and closing statements may take place.
Lord Hutton will hear any representations which may be made to him in the course of the Inquiry in relation to this and other matters at his first sitting.
All the public hearings, including the evidence of witnesses, will be recorded and a full transcript will be available to all sections of the media and to the public almost immediately."
On 25 July Mr Mark Wood, the Chief Executive of ITN, wrote to me asking that television cameras be allowed to broadcast the proceedings (including witnesses giving evidence) at the Inquiry. I replied by letter dated 28 July that I would be very willing to hear submissions from counsel on his behalf when the preliminary sitting of the Inquiry took place.
On Friday 1 August at the first sitting of the Inquiry I made an opening statement which included the following passage:
"As has already been stated in a Press Release from the Secretary to the Inquiry, it is my intention to conduct this Inquiry in public unless considerations such as those of national security require me to sit in private. Unless such considerations arise, it is important that the public should know every word of evidence which is spoken at this Inquiry and should know the full contents of every document which is referred to in evidence. The press will be able to report to the public everything which takes place, every word which is spoken by a witness, every question put to a witness by counsel and the contents of every document. A full transcript of what takes place will be available to the public and there will be a website to which everyone will have access for the transcript of the day's hearing. I have also decided that this opening statement by me will be televised and the addresses of counsel will be televised. I will hear an application later this morning as to whether witnesses giving evidence should be televised."
After I had made this opening statement I heard an application by Mr Geoffrey Robertson QC on behalf of ITN, BSkyB, Channel 4, Channel 5 and ITV for his clients to televise and broadcast all or part of the Inquiry, including the evidence of witnesses, in news programmes and news documentaries.
In the course of his submissions, Mr Robertson principally relied on the common law principle of open justice and on the argument that television broadcasting would inform the public of the proceedings before the Inquiry better than, or as well as, the press. But he also relied on Article 10 of the European Convention of Human Rights which is now incorporated into the law of the United Kingdom by the Human Rights Act 1998. Therefore I think it is convenient to consider first the question whether the inability of the applicants to televise and broadcast the evidence of witnesses at the Inquiry would constitute an infringement of their rights under Article 10.
Article 10 provides:
"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 and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
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 rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
The question whether Article 10 is engaged when a television company is refused leave to broadcast the evidence of witnesses in a court or before a public inquiry was considered by Dame Janet Smith in her decision (unreported) in an application by Cable News Network (CNN) to broadcast the public hearings of the Shipman inquiry conducted by her. Dame Janet concluded that Article 10 was not engaged and she stated her reasoning as follows:
"45. In my opinion, subject to restrictions which may be imposed if they satisfy Article 10(2), Article 10(1) guarantees freedom to disseminate information which is already in the possession or control of or accessible to the person or body whose rights are under consideration. It also guarantees that person's right to express his opinions in any way and through any medium, even if they are shocking and unacceptable to most members of society. It guarantees the right to receive information from those who are willing to impart it. However, in my view Article 10(1) does not bear upon the right of access to information that another holds but has not made accessible and does not wish to impart. ...
46. I must therefore go back to the words of the Article itself. I note first the title of the Article, 'Freedom of Expression'. At first sight, that does not seem to indicate that the Article will have anything to do with a right of access to information. The first sentence states the principle: 'Everyone has the right of freedom of expression'. That is what this Article is all about. It seems to me that the second sentence must be read subject to the first. The second sentence says that the right (that is the right to freedom of expression) is to include freedom to hold opinions and to receive and impart information and ideas without interference by a public authority. Read as a whole, that sentence, referring back to the first sentence, as I have suggested, says nothing about a right of access to material not yet available to the person concerned. Mr Lissack read the second sentence as follows: 'This right shall include freedom to ... receive ... information ... without interference by a public authority ... .' Read in that way, without reference back to the first sentence, it is possible to mount an argument that Article 10 guarantees a free standing right to receive all information. But in my view, such is not the ordinary natural meaning of the words of the first two sentences taken together. On their ordinary natural meaning, the words of the Article provide a guarantee to disseminate freely all information and ideas the person has and opinions he holds and a corresponding right to receive from others the information ideas and opinions which they have made accessible or wish to disseminate. In my view therefore, the expression of principle by the Court in Leander properly conveyed the meaning of the words of the Article. It was wider than necessary for the facts of the case but I am satisfied that the Court did intend and was entitled to propound the wider principle.
47. I note that in the Lockerbie case, both Lord Kirkwood and Lord Marnoch expressed the view that Article 10 had no application to information which was not already available to the petitioners and which the person in possession or control did not wish to impart.
48. I am also fortified in the view that I have taken by the submission of Mr Anderson that it is Article 6 which provides such guarantees as are available for the rights of access to public proceedings. The Convention does not provide for freedom of access to information. The only provision to guarantee some rights to freedom of information is Article 6, which guarantees a right of access to some, but not all, types of court proceedings. It seems to me that if Article 6 does not apply, (as it does not here) then the Convention is silent on the right of access to information emanating from legal proceedings. This confirms my view that Article 10 deals only with information to which the person concerned already has access.
49. For those reasons, I am satisfied that Article 10 does not guarantee the right to receive information which is in the possession or control of one who is not willing to impart it. In so far as the Inquiry is in possession or control of the information under discussion, (to which question I will next turn) CNN must seek permission to receive it rather than assert a right to receive it.
Dame Janet then went on to consider whether information which had been given by witnesses to the Inquiry remained under the control of the Inquiry or was already in the public domain so that it could be argued that under Article 10 a television company had the right to impart it. On this question Dame Janet held in paragraph 52 that the media are entitled to no more and no less information than any member of the public, she then stated in paragraphs 57 and 58:
"... In practice, if I allow CNN an unrestricted right, I would have to allow everyone else a similar right. If everyone were to have the right to film and record the proceedings and many people chose to exercise it at the same time, chaos would ensue. The Inquiry would not be able to conduct its business.
58. It is no doubt for reasons of this kind that the rule has become established that courts and inquiries have an inherent right to govern their own proceedings. That right encompasses many matters such as setting the times of sittings and the right to direct in what part of the room the public sits. There is the right to turn away members of the public if there is insufficient room for all to be admitted. There is a discretion to allow the media to have a reserved area, so that they are guaranteed a number of seats. That is a matter of discretion not law. There is the right to control misbehaviour. If members of the public disrupt the proceedings by making a noise, they may be removed. If several people brought flashlight cameras into the chamber, the proceedings would be disrupted, as they would be by the presence of large numbers of television cameras and sound recorders. If there has to be some restriction on the use of television cameras in the interests of the proper conduct of the inquiry, that must be a matter of a discretionary permission, to be exercised by the Chairman. There cannot be a right to bring a camera or tape recorder into the chamber, subject only to restrictions which can be justified on one of the very limited bases within Article 10(2). As the Scottish judges said in the Lockerbie case, it is beyond doubt that the court has a discretion to control its own proceedings and to decide who can film and broadcast.
Dame Janet then concluded that a television company does not have a right under Article 10 to film a public inquiry if the person conducting the inquiry does not give his or her permission, and she made the forceful observation in paragraph 67 that her conclusion appeared to be consistent with the practice of the European Court of Human Rights in Strasbourg which does not appear to recognise a right to film its proceedings but gives permission to film only the first few minutes of each party's submission and the whole of the judgment.
I consider, with respect, that Dame Janet's reasoning is correct and I would wish to adopt it as my own. Mr Robertson relied in his written submissions on the decision of the European Court of Human Rights in Jersild v. Denmark  19 EHRR, and Castells v. Spain  14 EHRR 445. I consider that these decisions do not assist his argument. It is clear that Jersild related to the dissemination by a journalist of statements made by another person in an interview with him, and Castells related to the publication in a magazine of an article criticising the government written by a politician. Therefore I rule that the applicants have no right under Article 10 and the Human Rights Act 1998 to film the proceedings, although as I have stated, I have given permission before the commencement of the Inquiry for filming of my opening statement and the filming of statements which will be made by counsel.
Although Mr Robertson submitted that the appellants had a right under Article 10 to film and broadcast on television the proceedings of the Inquiry, the main thrust of his submissions was that, even if Article 10 was not engaged, it was in the public interest and in accordance with the concept of open justice that I should grant permission for the evidence of witnesses to be filmed and broadcast, in addition to my opening statement and the statements of counsel.
Mr Robertson based his submissions on the well established and fundamental principle that justice must be administered in public and that reporting is essential to the proper administration of justice: see Scott v. Scott  AC 417, 463, 477 and Attorney-General v. Leveller Magazine  AC 440, 449, 450. In more recent years the principle was stated by Watkins LJ in R v. Felixstowe JJ ex parte Leigh  2 All ER 551, 558:
"The role of the journalist and his importance for the public interest in the administration of justice has been commented on many occasions. No one nowadays surely can doubt that his presence in court for the purpose of reporting proceedings conducted therein is indispensable. Without him, how is the public to be informed of how justice is being administered in our courts?
Lord Denning in The Road to Justice (1955) p 64 stated with regard to the free press:
'... a newspaper reporter is in every court. ... He notes all that goes on and makes a fair and accurate report of it. He supplies it for use either in the national press or in the local press according to the public interest it commands. He is, I verily believe, the watchdog of justice. If he is to do his work properly and effectively we must hold fast to the principle that every case must be heard and determined in open court. It must not take place behind locked doors. Every member of the public must be entitled to report in the public press all that he has seen and heard. The reason for his rule is the very salutary influence which publicity has for those who work in the light of it.'
Those observations suffice to emphasise to the mind of anyone the vital significance of the work of the journalist in reporting court proceedings and, within the bounds of impartiality and fairness, commenting on the decision of judges and justices and their behaviour in and conduct of the proceedings?"
Mr Robertson further submitted that the concept of open justice must be updated to reflect modern conditions and developments and that Lord Denning's principle of a newspaper reporter in every court required updating so that television coverage should be recognised as being as important and effective as, or more important and effective than, the journalists' shorthand notebook. Mr Robertson submitted that there would be only one television camera in the room where the Inquiry was held, and its presence would be unobtrusive and would cause no disruption of the proceedings. Moreover filming by the television camera would be subject to a protocol such as that which was drawn up to govern the filming and broadcasting of a particular stage of the Shipman Inquiry so that there would be provisions (inter alia) that the camera would only be focused on a person actually taking part in the inquiry and not on other persons present in the room, film would not be immediately broadcast and I could direct, if a witness became distressed, that that part of the film would not be broadcast.
In addition to these submissions Mr Robertson advanced a number of separate points which I summarise as follows:
(1) Pursuant to section 6(1)(b)(c) of the Broadcasting Act 1990 television companies are obliged to present news items with due accuracy and impartiality, and due impartiality must be preserved as respects matters of political controversy or relating to current public policy. In addition the ITC Programme Code issued in January 2002 stresses that news given in whatever form must be presented with due accuracy and impartiality and paragraph 3.4 states:
"Reporting should be dispassionate and news judgments based on the need to give viewers an even-handed account of events. In reporting on matters of industrial or political controversy, the main differing views on the matter should be given their due weight in the period during which the controversy is active. Editorial discretion would determine whether a range of conflicting views is included within a single news item or whether it is acceptable to spread them over a series of bulletins."
(2) A survey conducted in the course of research funded by the Independent Television Commission and the Broadcasting Standards Commission found that 65% of the British public say they regard television as their main source of news, compared with 16% who regard radio as their main source, 15% newspapers, 2% the internet and 1% word of mouth.
(3) The television broadcasting of a witness at the Inquiry giving his or her evidence would be a more effective way of conveying that evidence to the public than the printed words of the witness being shown on the television screen.
(4) The survey also shows that the percentage of the public which trusts television news to tell them the truth is higher than the percentage which trusts newspapers to tell them the truth.
(5) The television broadcasting of witnesses giving their evidence would enable the public to see their demeanour and body language and would therefore enable the public to form a much better impression of whether the witnesses were truthful than merely reading a report of their evidence in the press.
(6) Mr Robertson further submitted that press reports and coverage of the evidence of witnesses may distort that evidence, not by mis-quoting witnesses, but by headlines which distort and/or by editorial bias. Mr Robertson observed that a number of newspapers have already adopted a particular editorial line either criticising or defending a particular body or person such as the BBC or the Ministry of Defence or a Minister or official, and columnists can express very strong views on the conduct of bodies or persons whose actions will be considered by the Inquiry. Whereas the actual process of showing in a television broadcast the evidence of a witness without editorial comment would ensure a fairer presentation of that evidence.
(7) Mr Robertson also relied on observations made many years before the advent of television by the distinguished American commentator on the laws of evidence, Professor Wigmore. Referring to the advantages of publicity in court proceedings he stated:
"Its operation in tending to improve the quality of testimony is two-fold. Subjectively, it produces in the witness's mind a disinclination to falsify; first, by stimulating the instinctive responsibility to public opinion, symbolized in the audience, and ready to scorn a demonstrated liar; and next, by inducing the fear of exposure of subsequent falsities through disclosure by informed persons who may chance to be present or to hear the testimony from others present. Objectively, it secures the presence of those who may possibly be able to furnish testimony in chief or to contradict falsifiers and yet may not have been known beforehand to the parties to possess any information."
Mr Robertson submitted that these considerations apply a fortiori to television coverage.
(8) Mr Robertson further submitted that if the evidence of witnesses is not televised, it is probable that television will quickly show re-enactments of their evidence with actors playing the parts of counsel and witnesses. Therefore the public interest would be better served by the public seeing the actual witnesses giving their evidence rather than by watching actors playing the parts of those witnesses.
(9) It is probable that important constitutional issues will arise in the course of the Inquiry and therefore it is desirable that there should be a filmed historical record of what takes place.
In further support of his submissions Mr Robertson relied on the fact that the chairpersons of some important public inquiries had permitted the televising of the evidence of witnesses. Thus Dame Janet Smith had permitted the televising of some phases of the evidence given in the Shipman Inquiry consisting of the evidence of persons who were professionally qualified or were public servants or who had clearly defined statutory duties to perform. In 1990 Sir Louis Blom-Cooper QC permitted the televising of the evidence of witnesses in the Antiguan Royal Commission on the smuggling of arms to the Colombian drug cartels, and more recently Lord Mackay of Clashfern had permitted the televising of the evidence of witnesses in the inquiry which he conducted in Trinidad into aspects of the administration of justice in that jurisdiction.
In his submissions Mr Robertson recognised that the televising of witnesses might place undue and unfair strain on some of them, such as members of Dr Kelly's family and individual police officers who discovered Dr Kelly's body, and he accepted that it would be reasonable not to film their evidence to the Inquiry. But he submitted that there was a clear distinction between such witnesses and witnesses such as Government Ministers and BBC reporters who were well used to appearing on television.
At the conclusion of Mr Robertson's submissions I asked counsel for other parties if they had any submissions to make to me in respect of the filming of witnesses. Counsel for the Government, counsel for the BBC, the advocate for Miss Susan Watts, the BBC reporter, and counsel for the House of Commons all stated that they wished to make no submissions on the point and were content to leave the decision to me. However, Mr Jeremy Gompertz QC, for Mrs Kelly and her daughters, informed me that Dr Kelly's family considered that the surrounding issues, with implications of national proportions and the intense media interest, had turned a private tragedy into what the family felt was a public maelstrom. He further informed me that having witnessed the additional strain suffered by Dr Kelly by reason of his evidence to the Foreign Affairs Select Committee being shown on television, the family did not wish that any witness at the Inquiry should be subjected to a comparable experience. This view is entitled to respectful consideration, although it cannot be in any way decisive.
Notwithstanding that the combined effect of Mr Robertson's submissions constitutes an argument of considerable force, I have come to the conclusion that I should not accede to his application. In reaching this conclusion I have considered the whole matter afresh and have not been swayed by the consideration that my preliminary opinion, as stated in the Press Release of 24 July, was that the evidence of witnesses should not be filmed. I have also counselled myself against the danger of a conscious or sub-conscious approach that because courts in the United Kingdom have never, save with very rare exceptions, permitted witnesses in criminal or civil trials to be filmed for television in the past, this approach is obviously right and should be applied to a public inquiry being held in 2003 into a matter of great public interest.
I have decided not to accede to Mr Robertson's submission for two principal reasons. The first reason relates to the additional strain which would be placed on a witness giving evidence to the Inquiry if his or her evidence were televised. The Inquiry relates to matters of very great public interest and will be attended with very widespread publicity and comment. Those who give evidence will be placed under strain even if their evidence is not filmed and broadcast on television. But the strain will be all the greater if they know that their evidence is being filmed and broadcast and that every answer, every qualification or correction of an answer, every hesitation, every facial expression and every alteration of their posture will be watched by hundreds of thousands of people on their television screens and will be liable to be replayed on television on a number of occasions. That this is a very real consideration is demonstrated by Mr Robertson's submission that it is desirable that members of the public should be able to see the demeanour and body language of witnesses to make their own assessment if they are being truthful. I think that this knowledge might well inhibit some witnesses from speaking as frankly as they would otherwise do, and that filming them would not assist me in my task of trying to determine as precisely as is possible what happened during the period which preceded Dr Kelly's death. It is relevant to observe that this is one of the reasons which influenced the decision of Sir Richard Scott (as he then was) that witnesses in his inquiry on Arms to Iraq would not be filmed. In paragraph B 2.33 of Vol 1 of his Report, he stated:
"I had particularly in mind the possible effect on witnesses. It was foreseeable that there would be considerable media interest in the evidence to be given to the inquiry by Ministers, ex-Ministers and senior officials. There seemed to be a danger that the presence of television cameras might unfairly increase the inevitable pressure on witnesses resulting from the public character of the hearings."
Mr Robertson's acceptance that it would be reasonable that some witnesses, such as members of Dr Kelly's family and police officers who discovered his body, should not be filmed, constitutes a recognition that being filmed does place witnesses under additional strain, but Mr Robertson submitted that this concern does not relate to Government Ministers or to BBC reporters who are well accustomed to appearing on television in combative discussions. Mr Robertson also submitted that it would not be unreasonable to view senior civil servants as being in the same position as Government Ministers and that they should be prepared to accept that questioning of them at a public inquiry as to how they carried out their work should be broadcast on television, although he accepted that I might ask some civil servants if they objected to their evidence being filmed, and if they did I might decide that their evidence should not be filmed.
I recognise that there is some force in the argument that Government Ministers and BBC reporters would not be subject to the same strain if their evidence were filmed as would other witnesses. But I think there is nevertheless a difference between taking part in Question Time in the House of Commons or in a political debate or in a political discussion where the individual's political views are being expounded or defended, and being questioned by counsel in a public inquiry as to particular decisions in relation to an individual.
I am also not persuaded that a civil servant, no matter how senior, will not be placed under considerable additional strain if his evidence were filmed. I further consider that it would be most unsatisfactory to engage in a process of asking certain witnesses if they are willing for their evidence to be televised, and if they are unwilling, deciding whether they should be filmed notwithstanding their withholding permission. Obvious problems could arise if there was a significant difference on a particular issue between the evidence of a witness who was filmed and a witness who was not. Indeed the procedure of filming some witnesses at a public inquiry, but not others, depending on their public prominence or their willingness to be filmed, appears to me to be an undesirable one. Moreover, in an Inquiry which requires to be conducted urgently, the need to ask some witnesses if they were willing to be filmed, and then to consider what should be done in the light of their replies, would add a time consuming burden to the work of the tribunal and its secretariat.
The second main reason why I do not accede to Mr Roberton's application is that I am satisfied that the absence of television filming of the witnesses giving evidence would not mean that the Inquiry would not be a public one as required by the fundamental concept of open justice. A number of major Inquiries, open to the public and the press, have been held in this country in recent years when television filming has not been permitted, but that has not meant that the Inquiry has not been a public Inquiry. I have already referred to Sir Richard Scott's decision in his Inquiry that television filming would not be permitted, but he made it clear in paragraph B2.7 of his Report that, save where questions of national security required closed sittings, the hearings at his Inquiry would be held in public. Similarly in his Inquiry into BSE Lord Phillips of Worth Matravers held public hearings but he did not permit the television filming of witnesses. He stated in paragraph 1344 of his Report:
"Each hearing was in public and we tried to make the atmosphere at these hearings as informal as possible. We permitted radio broadcasts of our proceedings and television cameras were permitted when witnesses were not giving evidence."
In his opening statement at the commencement of the Bloody Sunday Inquiry, Lord Saville of Newdigate took a similar view. He stated:
"This opening statement has been televised. Since we intend to use our internet website to provide a ready means of following what is going on, the rest of the hearings will not be televised."
It further appears that in the Ladbroke Grove Rail Inquiry, Lord Cullen permitted the television filming of the opening and closing statements by counsel and by individual parties, but he did not permit the filming of witnesses giving their evidence.
Mr Robertson made a further application on behalf of IRN Radio that, as was permitted in the BSE Inquiry, it should be permitted to broadcast on radio the evidence of witnesses. The BSE Inquiry related to a very different subject matter than the present Inquiry and, bearing in mind that there will be a full transcript of the evidence available to the public very soon after it has been given, I consider that the broadcasting of the evidence of witnesses would place an unjustifiable additional strain upon them (although less than the strain imposed by television filming) and that such permission should not be granted.
Accordingly, for the reasons which I have given, I do not accede to Mr Robertson's applications, attractively and persuasively though they were presented, that permission should be given for television filming and radio broadcasting of the evidence of witnesses.
5 August 2003