This week’s Digest considers two cases. In the first, the Court of Appeal considered whether a trial judge was correct to order reporting restrictions in a fraud case involving a doctor. In the second, the Administrative Court considered whether extradition to California would violate the claimant’s Convention rights.
R v Sarker [2018] EWCA Crim 1341
Judgment was handed down by Lord Burnett CJ on 13 June 2018
The Court of Appeal Criminal Division considered a challenge by the BBC and other press organisations to a reporting restriction order (the Order) made under section 4(2) of the Contempt of Court Act 1981 on 22 January 2018. The Court distilled some general principles that emerge from the authorities on such orders and held that the threshold was not met on these facts. The Order was quashed.
Jacob Hallam QC represented the Crown.
The defendant was a surgeon charged with a single count of fraud. The prosecution alleged that he had dishonestly exaggerated his professional experience to obtain an appointment as a consultant surgeon. Colleagues had soon raised concerns about his competence and he was dismissed by the Royal College of Surgeons. There was a police investigation into a number of deaths of his patients. Multiple press organisations ran stories on both the defendant’s competence and the subsequent investigations.
At the trial counsel for the defendant sought an order. He argued that a contemporaneous online report of the trial would lead to the jury encountering prejudicial material. The judge duly granted the order on 22 January 2018. On 26 January 2018 Counsel for the BBC appeared at the trial and applied to discharge the Order. The application was resisted by both the defence and prosecution. The judge refused to discharge the Order. The BBC appealed.
The Court emphasized that the default position is that all proceedings in courts are conducted in public. As attending court in person is not practice for the majority of people, the media serve as the eyes and ears of the wider public. Full contemporaneous reporting promotes public confidence in the administration of justice. Reporting restrictions, though not as great a departure from open justice as the court sitting in private, are direct press censorship and should only be made when strictly necessary.
With this in mind, the court clarified the approach to be taken to granting a section 4(2) Order. First, reporting must give rise to a substantial risk of prejudice to the administration of justice. Secondly, if there is such a risk, the court must ask whether a section 4(2) order would eliminate it. Thirdly, if so, the judge must still ask whether the degree of risk contemplated should be regarded as tolerable.
Fourthly, the word ‘substantial’ in section 4(2) simply means ‘not minimal’. In most cases no possible prejudice to the immediate trial could arise from the publication of contemporaneous reports of the trial itself, especially considering the express directions to jurors given at the start of a trial and the principle that the Court must proceed on the basis that juries have a commitment to the right of a defendant to be given a fair trial. Their integrity is an essential feature of the trial process.
Fifthly, if an order is thought to be required, the key question is whether a less restrictive order might avoid the identified risk of prejudice e.g. a more targeted order under section 45(4) of the Senior Courts Act 1981. Sixthly, and finally, the court is required to make a value judgment about the competing rights and interests. A reporting restriction is an interference with the right of freedom of expression, in the language of article 10(2) ECHR. Any order must therefore be proportionate. On the facts of the case, the order should not have been made as no realistic risk of prejudice was identified. The order was quashed.
Giese v Government of the United States of America [2018] EWHC 1480 (Admin)
Judgment handed down by Lord Burnett CJ on 14 June 2018.
The Divisional Court considered whether repeated extradition requests constituted an abuse of process, what assurances are sufficient to prevent an extradited individual from suffering a breach of their article 5(1) ECHR rights, and whether Californian prisons are acceptable from a Convention perspective.
The appellant is wanted to stand trial in California for sexual offences. The District Judge sent his case to the Secretary of State for her decision pursuant to the Extradition Act 2003. The appellant appealed against the decision of the District Judge on three grounds: (i) the extradition proceedings were an abuse of process following earlier failed proceedings; (ii) there was a risk that, if convicted, he would be subject to ‘civil commitment’ at the end of his sentence that would infringe his article 5(1) ECHR rights; and (iii) if convicted there are grounds to believe he would be subject to violence at the hands of other prisoners.
In a number of previous trials, referred to as Giese (No. 1) and Giese (No. 2), the Divisional Court held that an assurance by the Orange County District Attorney’s Office that it would not seek to subject the appellant to a civil commitment order was not a sufficient safeguard of his article 5(1) rights. The Government unsuccessfully sought to reopen the appeal again under CPR rule 50.27 (Giese (No. 3)). The Government then secured two further letters of assurance, including one from the Director of the US Department of Justice, that the appellant would not be subject to a civil commitment order and made a further request to extradite him. While criticising the Government for the lax and protracted procedural history, the judge could not find that this amounted to an abuse of process. The appellant appealed.
The Divisional Court found that there is no doctrine of issue estoppel in extradition proceedings and the principle of double jeopardy expressed in Henderson’s case also does not apply. There is a strong public interest in upholding international obligations and delivering for trial those accused of serious wrongdoing. Further, the Court emphasized that assurances form an important part of extradition law and, when emanating from friendly foreign governments, should be treated in good faith. Finally, the evidence did not support the proposition that the appellant would be at real risk of attack in a California prison, or that the authorities there do not take appropriate steps to protect their prisoners. In short, the Government had successfully addressed the deficiencies exposed in its case in Giese (No. 1) and Giese (No. 2) and so the appeal was dismissed.
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The full piece can be read here.
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The full piece can be read here.
