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Report No. 200

United Kingdom & the Sunday Times Case:

The competing rights of freedom of expression and fair administration of justice came up for consideration in Attorney General v. Times Newspapers: 1973(3)All ER 54 (HL). The result was in favour of the administration of justice and against the newspapers. The further petition before the European Court of Human Rights resulted in an opinion in Sunday Times v. United Kingdom (1979) (2) EHRR 245 that the injunction granted by the Court in U.K. against publication was in absolute terms and without time limit and was very wide and violated the European Convention and that the contempt law in UK (i.e. before 1981) was vague and difficult to comply with. The facts were as follows:

Sunday Times published a series of articles to bring pressure on the Distillers Ltd to settle several pre-trial civil cases which were filed by or on behalf of those affected by thalidomide drug administered during pregnancy to women. The Attorney General commenced proceedings for injunction restraining the newspaper from publishing one in the series which was about to be published. Injunction was granted. But, the Court of Appeal vacated the injunction granted by the Divisional Court.

The House of Lords allowed the appeal and restored the injunction. It was held that when the civil cases were pending, it was contempt of court to publish articles pressurizing the Distillers to settle the matters as that would affect the administration of justice. Some of the Law Lords held that it was likely to prejudice the mind of witnesses, jury or magistrates. Some stated that it can be assumed that it would not affect a professional Judge. Injunction was restored.

On petition by Sunday Times, the European Court in Sunday Times v. U.K 1979(2) EHRR 245 dealt with the matter on the basis of Article 10 of the European Convention (freedom of speech and expression) and posed a preliminary question "Was the interference prescribed by law ?" as required by Article 10(2). It came to the conclusion that the interference was by law since 'law', under that Article covered not only statute law but also 'unwritten law' and the publishers had sufficient notice of the existence of such a law.

The next question the Court posed was "Did the interference have aims that are legitimate under Article 10, para 2 ?". Under Article 10(2), restrictions were permissible if they were "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 of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of judiciary".

The majority in the European Court held that 'authority' of the judiciary did cover its adjudicative functions as well as its powers to record settlements. Here, it went by the Phillimore Report. The contempt of court law provided the guidance. The interference was legitimate with Article 10(2).

The next question the Court posed was whether interference was 'necessary in a democratic society' for maintaining the authority of the judiciary ? This question was more factual because the point was whether public interest required publication of the evil effects of thalidomide. 'Necessary' in Article 10(2) was not synonymous with 'indispensable'. 'Necessary', the Court said, was not as flexible as the words 'admissible', 'ordinary', 'useful', 'reasonable' or 'desirable'.

It implied a 'pressing social need' or one which was 'proportionate to the legitimate aim pursued'. The general injunction granted by the Court did not meet this standard as it was in very wide terms, further, there was not much pressure on the Distillers Ltd for settlement since the issue was also debated in Parliament. But the House of Lords' view that 'trial by newspaper' was not permissible was a concern in itself 'relevant' to the maintenance of the 'authority of the judiciary'. The European Court accepted that:

"If the issues arising in litigation are ventilated in such a way as to lead the public to form its own conclusion thereon in advance, it may lose its respect for and confidence in courts' and that

"Again, it cannot be excluded that the public's becoming accustomed to the regular spectacle of pseudo-trials in the news media in the long run have nefarious consequences for the acceptance of the Courts as the proper forum for the settlement of legal disputes".

But, the European Court held on facts, that the proposed article by Sunday Times was "couched in moderate terms and did not present just one side of the evidence or claim that there was only one possible result at which a Court could arrive". It said "There appears to be no neat set of answers ..." to the effects of Thalidomide. Therefore, the effect of the article on readers was likely to be 'varied' and hence not adverse to the 'authority of the judiciary'. As the settlement was in progress over a long period, there was not much prospect of a trial of the (civil case) coming through. But it agreed:

"Preventing interference with negotiations towards settlement of a pending suit is a no less legitimate aim under Article 10(2) than preventing interference with a procedure situation in the strictly forensic sense".

But, here the negotiations were prolonged and at the time of publication, they did not reach a final stage of trial. The Court then emphasized the role of the press and of the Courts but said it was not a matter of balancing competing interests but going back to Article 10(2) to find out if the interference was necessary having regard to the facts and circumstances prevailing in the specific case before it.

The thalidomide dis aster was a matter of public concern and under Article 10, public had a right to be informed about the drug. Having regard to all the circumstances, the interference complained of did not correspond to a social need sufficiently pressing to outweigh public interest in freedom of expression within the meaning of the Convention. The restraint was not 'proportionate' to the legitimate aim pursued and was not necessary in a democratic society for maintaining the authority of the judiciary.

The Court stated that the law must be certain and that in U.K it remained uncertain if the question of balancing rights was left to be decided in individual cases.

In our view, the decision of the European Court has no application to publications which may prejudice the rights of a person who has been arrested and where such arrest indicates that a trial could more likely follow by the filing of a charge sheet. Sunday Times related to a civil case, it concerned Article 10(2) of the European Convention which uses the words 156'necessary'. The Court itself admitted that 'necessary' was more narrow than the word 'reasonable', a word used in Article 19(2) of our Constitution.

One other important point to be noted here is that while it is open for U.K citizens to approach the European Court for relief on the ground of violation of the European Convention, the judgment of the European Court does not amount to overruling the opinion of the House of Lords. In fact, in Sunday Times case itself, the European Court pointed out:

"Whilst emphasizing that it is not its (European Court's) function to pronounce itself on an interpretation of English law adopted in the House of Lords",

Borrie and Lowe state clearly (p 102, 3 rd Ed, 1999) that "although the Convention is not directly applicable to U.K domestic law and the decisions of the European Court are not binding precedents", nevertheless it was to be presumed and it was necessary that U.K is reminded of its international obligations assumed under the Convention. "Even in other Common Law jurisdictions outside Europe, the European Court's decision is not totally irrelevant although it may not be regarded as persuasive as the House of Lords decisions". (See Commercial Bank of Australian Ltd v. Preston: 1981(2) NSWLR 554).

But, after Sunday Times' case, the UK law was no longer vague in view of the Contempt of Courts Act, 1981,which prescribed the date of arrest as the starting point.

Trial by Media free speech and fair trial under Criminal Procedure Code, 1973 Back

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