A reporting restriction imposed by the House of Lords which prohibited the identification of a man acquitted of a rape who was now believed to have committed the crime has been lifted after a challenge by the BBC.
The House of Lords held that the corporation’s right to freedom of expression under Article 10 of the European Convention on Human Rights outweighed the rights of the suspect, referred to only as D.
D was granted anonymity when a legal point involved in the case was referred to the House of Lords by the Attorney General – had this not happened, he would have been entitled to no greater protection than any other person who had faced a trial for rape, the Law Lords held.
In January 1997 a man broke into a 66-year-old woman’s home, assaulted and tied her up, then subjected her to a horrific rape before blocking her in a cupboard in the hallway. He fled after stealing money and other things.
D was charged with the rape in October 1998, after a DNA sample taken from him in January that year, in connection with a different burglary, was matched to samples taken from the rape victim.
The trial took place in June 1999, and D was acquitted after the judge ruled that the DNA evidence was inadmissible, as the DNA sample used to make the match with the samples from the rape victim should, under the law applicable at that time, have been removed from the database before the match was made.
When the Attorney General referred the case to the House of Lords it imposed the anonymity order – but it also held that the DNA evidence was not inadmissible, but could have been allowed at the judge’s discretion.
The BBC now wanted to make a programme about the repeal of the double jeopardy rule – the law now allows an acquitted individual to be tried for a second time on the same charge if new and compelling evidence comes to light – with the pilot show featuring D’s case.
Lord Hope of Craighead said: “The fact that D was acquitted of the rape is not of itself private information the publication of which would be incompatible with his right to privacy.
“This has nothing to do with his private life. The trial was held in public, and the media were at liberty to publish D’s name along with other details of the case other than the identity of the complainant.
“But the point to which the BBC wish to draw attention is not confined to his acquittal. At the heart of the broadcast will be the fact that a DNA profile obtained from a saliva sample that was taken from him when he was arrested for an offence of burglary was matched with the DNA profile obtained from swabs taken from the rape victim.
“The judge’s ruling that the DNA evidence was inadmissible having been held to have been wrong in Attorney General’s Reference (No 3 of 1999) ( 2 AC 91) it is arguable that it is available as new and compelling evidence for the purpose of a retrial within the meaning of section 78 of the Criminal Justice Act 2003.
“What the BBC wish to do is to undermine his acquittal and to campaign for his retrial.”
Lord Pannick QC, acting as Amicus Curiae, had argued that if keeping and storing D’s DNA sample was an interference with his right to privacy under Article 8, then so too must be the programme that the BBC wish to make, which would name him and refer to the circumstances of his acquittal on the assumption that his DNA profile was available as new and compelling evidence for a re-trial.
Lord Hope said: “The link that his DNA sample provides to the commission of the rape is personal information. The giving of publicity to the link will inevitably suggest that he is guilty of the offence.
“The conclusion that broadcasting this information will engage his right to respect for his private life seems to me to be inescapable.”
But in cases in which a balance had to be struck between competing rights under Articles 8 and 10, the European Court of Human Rights had always stressed the contribution which articles or pictures made to a debate of general interest.
Lord Pannick had suggested that the BBC could make the programme without doing anything which would identify D, but Gavin Millar QC, for the corporation, had argued that it should not be restricted in this way.
But Lord Hope said the Strasbourg court had emphasised that the press had to be free to exercise its own judgment in the presentation of journalistic material, and had made clear that it was not for it, nor for national courts, to substitute their own views for those of the press as to what technique of reporting journalists should adopt.
He went on: “In essence Article 10 leaves it for journalists to decide what details it is necessary to reproduce to ensure credibility…
“So the BBC are entitled to say that the question whether D’s identity needs to be disclosed to give weight to the message that the programme is intended to convey is for them to judge. As Lord Hoffmann said in Campbell v MGN Ltd ( 2 AC 457, para 59) judges are not newspaper editors. They are not broadcasting editors either. The issue as to where the balance is to be struck between the competing rights must be approached on this basis.”
Disclosing D’s identity in the programme would pursue a legitimate aim, he said.
“The programme that the BBC wish to broadcast has been inspired by the removal of the double jeopardy rule. What this means in practice for our system of criminal justice is a matter of legitimate public interest.
“These issues could, of course, be discussed in the abstract by reference to hypothetical facts and circumstances. But the arguments that the programme wishes to present will lose much of their force unless they can be directed to the facts and circumstances of actual cases.
“The point about D’s name is that the producers of the programme believe that its disclosure will give added credibility to the account which they wish to present. This is a view which they are entitled to adopt and, given the content of the programme as a whole, it is an aim which can properly be regarded as legitimate.”
On the issue of proportionality, Lord Hope said: “The fact that he was acquitted of the rape is already legitimately in the public domain. He cannot complain of a violation of his rights under Article 8 if, as a result of the programme, an application is made for him to be put on trial again for that offence.
“This is because the statute provides for this, and because the interests of a democratic society in the prevention of crime and disorder lie in the bringing of those who have committed crimes before the courts so that, if convicted, they can be punished for them.”
Lord Pannick had raised the risk of D suffering trial by media, Lord Hope said, adding that this was to be deprecated.
He went on: “But I do not see this additional feature as a reason for holding that his Article 8 right to the protection of his reputation outweighs the right of freedom of expression on a matter of legitimate public interest.
“It may increase the pressure on the authorities, which will be there anyway as a result of the broadcast, to take steps for him to be retried. If that happens, the system of justice will take its course.”
There were procedures to ensure that D could receive a fair trial.
While the interference with D’s right to respect for privacy would be significant, it was proportionate when account was taken of the weight which had to be given to the competing right to freedom of expression that the BBC wished to assert.