JUDGMENT
Judicial Review - Contempt of Court - Committal for Contempt - Solicitor General on
behalf of Attorney General declining to bring contempt proceedings - Whether court
has jurisdiction to review the decision - Contempt of Court Act 1981 s 7 - R v
Solicitor General ex p Taylor & anr - Divisional Court - Stuart-Smith LJ and
Butterfield J - 31.07.95
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
Royal Courts of Justice
31st July 1995
BEFORE:
LORD JUSTICE STUART-SMITH
MR JUSTICE BUTTERFIELD
BETWEEN:
R
and
THE SOLICTOR GENERAL
ex parte
(1) MICHELLE TAYLOR
(2) LISA TAYLOR
APPROVED JUDGMENT
LORD JUSTICE STUART-SMITH:
This is an application for judicial review which once again raises the important
question whether, and if so in what circumstances, the decisions of the AttorneyGeneral are amenable to judicial review.
The decisions under challenge in this case were taken by the Solicitor General in the
absence of the Attorney-General himself, but nothing turns on that: he is empowered
to do so by the Law Officers' Act 1944, section 1.
Two decisions are the subject of challenge; the first and most important was taken
on 7th April 1994 whereby the Solicitor General decided that it was not appropriate
to take proceedings for contempt of court arising out of the newspaper coverage of
the trial of the Applicants in July 1992.
That decision was taken pursuant to section 7 of the Contempt of Court Act 1981
("the 1981 Act"). The second decision is said to be the refusal to give any or any
sufficient reasons for the first decision.
The background
On 24th July 1992 at the Central Criminal Court before Mr Justice Blofeld and a jury,
the Applicants, who are sisters, were convicted by a unanimous verdict of the murder
of Alison Shaughnessy on 3rd June 1991.
Alison Shaughnessy was stabbed to death at her home at 41 Vardens Road, London
SW11 shortly after she returned from work on that day. She had received 54 stab
wounds. The Applicants were questioned and charged with murder on 7th August
1991.
The prosecution's case was that the first Applicant (Michelle) was motivated by
jealousy because she had a sexual relationship with Mrs Shaughnessy's husband,
John. It was alleged that this relationship started in 1989 and continued after the
marriage of Mr and Mrs Shaughnessy on 23rd June 1990.
So far as the second Applicant (Lisa) was concerned, it was the Crown's case that
she disliked the way her sister had been treated by Mr Shaughnessy and went along
with the plan to murder his wife.
On 3rd June 1991, Alison Shaughnessy left work at 5.02 p.m. in the evening. If she
had gone straight home she would have arrived at about 5.37 p.m. The post mortem
evidence indicated that she had died at around 6 p.m.
The body was found at about 8 p.m. when John Shaughnessy and Michelle went to
the flat at Vardens Road to collect some flower pots prior to arranging flowers
together, something they did once a week.
On finding the body he was distraught and so apparently was Michelle. There was
no suspicion that John Shaughnessy was involved in the murder; he had an ample
alibi for the whole day.
Michelle was seen by police that evening; she appeared distressed; she answered
questions but did not mention her relationship with John Shaughnessy. That was not
referred to until she was interviewed on 24th July 1991. Lisa also made a statement
on the same day.
She said that she and Michelle had gone to Bromley at about 3 o'clock that afternoon
and returned to the clinic where Michelle worked about five p.m. She said that she
played Monopoly with a friend, J.J. Tapp, in her room until 7.30 p.m. She said she
had never been to the flat in Vardens Road.
Michelle's "Speedlink" card was used at the Lambeth North Branch of the National
Westminster Bank on the afternoon of 3rd June 1991. If it had been used by
Michelle, the Crown's case was that the sisters could not have been in Bromley at
that time. Michelle's evidence was that the card must have been used by J.J. Tapp,
who knew the pin number.
There was no scientific evidence linking the Applicants with the crime. Fingerprints of
Michelle were found on the bannister at the flat; they were explicable by her
presence when the body was found. Two fingerprints of Lisa's were found on the
inside of the front door of the flat.
Michelle gave an explanation for these when she gave evidence. She said that they
had both gone to the flat two or three weeks before the murder to clean the windows.
John Shaughnessy was not there and she had never told him about the visit.
They had lied to the police about Lisa not having gone there previously because
Michelle had not wanted to get her family involved.
Nurse Healey gave evidence to the effect that she had seen Michelle (who she
knew) driving out of the clinic between 4 p.m. and 4.30 p.m. Sitting beside her was a
young, slight woman with a pony tail; that could have described Lisa. That evidence
was also inconsistent with the alibi.
J.J. Tapp was an important witness. She was a friend of Michelle's and worked with
her at the clinic. Initially she had supported the alibi that the sisters had been with
her since 5 o'clock, and during the material time.
Later she retracted that. She said that she had not returned to the clinic until about
7.15 p.m., when she returned to her room. Lisa told her that she and Michelle had
been there since 5 p.m. Her explanation for her earlier statement was that she had
believed them when they said that they had been there since 5 p.m., and so she was
prepared to say that they were.
Another important witness was Doctor Unsworth-White.
He cycled home to Vardens Road where he lived. He arrived there at 5.45 p.m., and
he noticed two girls come down a flight of steps. He described them as in their late
teens and early twenties with blond hair, one having it tied back in a pony tail.
He said they were running or jogging into the street and one was carrying a bulky
bag. He also saw an older man coming down the steps after them. The house from
which they came was No. 41.
There was no dispute that both Applicants were seen at the clinic about 6 p.m.
Statements were read from two elderly witnesses, Mrs Wright and Mr Casey, who
lived in flats at 41 Vardens Road.
Mr Casey said that the front door of 41 Vardens Road was still mortice locked at 5.40
p.m. to 5.45 p.m. when he arrived home; which if correct would mean that Alison had
not yet arrived home. Miss Wright said that she saw Alison arrive home between 6
p.m., and 6.30 p.m., but she put Mr Casey's return at about 5.30 p.m.
The Crown put in evidence an entry in Michelle's diary for 2nd November 1990,
which reads:
"My dream solution would be for Alison to disappear as if she had never existed,
then may be I could give everything to the man I love."
Michelle gave evidence. She agreed that she had a sexual relationship with John
Shaughnessy and that she had been bitterly hurt when she found out that he was
engaged to Alison. After that the affair had been up and down. She had gone to
Ireland for the wedding as the guest of both husband and wife who had paid for her
trip.
At first she stayed with Alison's family; but on the night before the wedding she had
gone to the hotel where John Shaughnessy was staying. There had been a party
which lasted until 3 a.m. or 4 a.m.; after that she had spend the night in John's room
and in the morning they had intercourse (though this was denied by Shaughnessy).
She agreed that in November 1990 she had feelings of hatred for Alison, but she
said the affair was really over by December. Since the beginning of March 1991 she
had sexual intercourse with Shaughnessy on one or two occasions, but the last of
these was months before the murder.
She had been in Bromley on the afternoon of 3rd June, returning to the clinic about 5
p.m., and had been in the company of J.J. Tapp until after 7 p.m.
The trial, which lasted from 7th to 24th July 1992, perhaps not surprisingly attracted
extensive media coverage, especially in the tabloid press.
In granting leave to appeal, the single Judge said that she was troubled by the
unremitting, extensive, sensational, inaccurate and misleading media coverage and
she thought that the full Court might wish to consider a reference to the AttorneyGeneral with a view to possible contempt proceedings.
Shortly before the hearing in the Court of Appeal on 10th and 11th June 1993 it
came to light that the police had in their possession information which, if it had been
available to defending counsel at trial, might have cast doubt on the reliability of the
evidence of Dr Unsworth-White.
The Court of Appeal held that the non-disclosure of that material was a material
irregularity and that it was not appropriate to apply the proviso.
The Court also went on to consider the question of ordering a retrial and the second
ground of appeal, namely that the press coverage at the trial did create a real risk of
prejudice against the accused.
There is little detailed analysis in the judgment of the articles in the press; but
reference was made to articles with headlines "Cheats Kiss" and "Judas Kiss" which
were derived from a video taken at the Shaughnessy wedding, to which we shall
have to refer in more detail later in this judgment, but the Court agreed with the
single Judge's description of the media coverage and considered that it did create a
real risk of prejudice and that accordingly the conviction was unsafe and
unsatisfactory.
They also considered that the way in which the case was reported precluded a fair
retrial now taking place.
Finally, they ordered that the case papers be sent to the Attorney-General for him to
consider whether he thought it appropriate to take any action in respect of the
newspapers concerned.
The consideration by the Law Officers of possible contempt proceedings.
Thereafter the judgment of the Court of Appeal, the trial judge's summing-up, the
Applicants' perfected grounds of appeal in which reference was made to the press
articles complained of and copies of some 37 articles which had been published
between 6th and 21st July the subject of the complaint were sent to the Legal
Secretariat to the Law Officers.
Senior Crown Prosecuting Counsel who conducted the trial, Mr Nutting, was
consulted and counsel said to be experienced in contempt cases. Transcripts of
some of the evidence was obtained and considered by these counsel.
Specialist counsels' written advice, together with the relevant documents, were then
considered by the Attorney-General and copies were sent to the Solicitor General.
Complaints against the press were considered under four heads: assumed guilt,
prejudicial comment, factual inaccuracy, sensational wording and the photograph of
the "Cheats Kiss".
The conclusion was that there appeared to be grounds for proceedings for contempt
against the Sun, the Daily Mirror, the Daily Mail and the Daily Express in respect of
the photograph of the "Stolen" or "Cheats Kiss", together with accompanying
headlines and captions; but that otherwise proceedings for contempt would not be
justified.
It is necessary to describe this photograph in more detail. Someone at the wedding
had taken a video. This had come into the hands of the media; one frame had been
frozen to produce the still photograph.
It shows Michelle giving John Shaughnessy a kiss either outside the church or at the
reception line. It is said on behalf of the Applicants that it shows a mouth to mouth
kiss, rather than in fact what it was, which is more accurately described as a peck on
the cheek. For my part, having seen the original copy of the
"Sun" newspaper in which it was shown, I doubt whether many people would so
interpret it; but I accept that some might, and I am prepared to assume that that may
well have been the purpose. In the case of the "Sun", the front page headline was
"Cheats Kiss" and then in slightly smaller type "Caught on wedding video... husband
of murdered bride and his mistress".
Similar headlines accompanied the photograph in the other newspapers to which I
have referred.
In accordance with the usual practice on 26th November 1993, letters were sent to
the Editors of the newspapers concerned drawing attention to the relevant
publication. The letters contain this paragraph:
"The Attorney General considers that these reports did not represent a fair and
accurate report of the proceedings as neither the video recording of the wedding of
John and Alison Shaughnessy nor any of the still photographs taken from it were
presented to the jury in evidence during the course of the trial.
The Attorney General has concluded that they gave rise to a substantial risk of
serious prejudice to the course of justice, and hence constituted a contempt of court.
He considers that these pictures and accompanying captions provided a wholly
unwarranted sense of emphasis to the secret relationship between Mr Shaughnessy
and Miss Taylor and thereby to the motive alleged by the prosecution for the killing."
Over the next few weeks the Editors replied. They denied the allegation. It is only
necessary to read part of one such letter, since they all took much the same line.
In a letter dated 24th January 1994, Mr Crane, the Legal Manager of the Sun said
that the paper did not accept that the publication of the photograph and captions
created a substantial risk of serious prejudice and did not accept that they gave an
unwarranted sense of emphasis either to the secret Shaughnessy/Taylor
relationship. The letter went on to make the following points:
"By July 10, when the pictures were published, the jury had already heard:
a) the prosecution opening to the effect that Shaughnessy and Michelle Taylor had
conducted a secret sexual affair from Spring 1991 until the time of the murder and
that jealous hatred was Taylor's motive;
b) Shaughnessy's own description of the affair and of the deception of his wife both
before and after they were married, his evidence about Taylor's presence at his
wedding and the fact that he had shared a room with her on the night before the
ceremony;
c) Defence counsel's suggestion to Shaughnessy that he and Taylor had, in fact, had
sexual intercourse on the morning of his wedding as well as on the numerous
occasions before and after.
In the light of what the jury already knew to be accepted by both sides in the case,
we respectfully suggest that it defies credulity to assert that pictures of Shaughnessy
and Taylor embracing on the steps of the church in front of the other wedding guests
could prejudice any live issue in the proceedings. The same applies to the picture
captions.
It is perhaps, significant that no complaint seems to have been made by the trial
judge about the publication of these pictures and that some sixteen months elapsed
before the matter was raised with the newspapers concerned."
The factual matters set out in paragraphs (a) to (c) are correct. It was incorrect that
defence counsel had not raised the matter with the Judge, but they did not suggest
that publications of themselves created a risk of prejudice to the defendants.
Rather the concern was that the photographs represented a yet further example of
press coverage, which if it were to condition, might lead in due course to an
application for a retrial.
The matter was then further considered, additional material obtained from the trial
transcript and specialist counsel again advised in conference, which was attended by
Mr Nutting, and in writing. The papers were then considered by the Solicitor General,
together with the advice obtained.
The conclusion of the Solicitor General, which accorded with the views of both
counsel consulted, was that publication of the photographs had not prejudiced the
defendants in any significant way and that proceedings for contempt against the
newspapers would be unlikely to succeed.
He therefore decided that it was not an appropriate case for such proceedings. This
decision, which was taken in the absence of the Attorney-General on 7th April, was
notified to the Court of Appeal on 18th April 1984.
On 23rd May 1994, the Applicants' solicitors for the first time notified the Legal
Secretariat of their interest on behalf of the Applicants and enquired about the
Attorney-General's intention to institute contempt proceedings.
There then followed correspondence on 24th June 1994 in answer to a request from
the solicitors for the reasons for the decision not to take proceedings, the Legal
Secretariat wrote: after explaining that the matter had not been referred to them by
the Applicant and that the conclusion of the Law Officer had been communicated to
the Court of Appeal, the final paragraph reads:
"I can confirm that the decision taken by the4 Solicitor General accorded with advice
received from counsel. It is the practice of this office not to make public the detailed
reasons for decisions.
Suffice it to say the Solicitor General concluded that proceedings for contempt of
court were unlikely to succeed in respect of any individual item or newspaper report.
I am not able to provide you with a copy of counsel's advice."
It is in a letter which forms the subject of the Applicants' second challenge in these
proceedings.
The statutory background of the application is this: The 1981 Act section 1 provides
that:
"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(1) The strict liability rule applies only in relation to publications, and for the purpose
`publication' includes any speech, writing, programme included in a programme
service or other communication in whatever form, which is addressed to the public at
large or any section of the public.
(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."
The expression a "substantial risk" has been held to involve a risk which is more that
remote (Attorney-General v English [1983] 1 A.C. 116, 141-142) or "not
insubstantial" or "not minimal" see (Attorney-General v News Group Newspapers
[1986] 2 All ER 833, 841).
Section 7 of the Act provides:
"Proceedings for a contempt of court under the strict liability rule... shall not be
instituted except by or with the consent of the Attorney General or on the motion of a
court having jurisdiction to deal with it."
Prior to the 1981 Act a litigant could institute proceedings for contempt, but only with
leave of the court pursuant to the rules of the Supreme Court Order 52, rule 2 or its
earlier equivalent.
Jurisdiction
For many years there has been a long line of authority to the effect that the Courts
will not review the exercise of the discretion of the Attorney-General in relation to
decisions taken in the execution of his public office.
In R v Newton [1855] 24 LJQB 246, Lord Campbell CJ said at page 247:
"I think this court has no jurisdiction to review the decision of the Attorney-General".
Mr Justice Wightman said:
"but it is a judicial matter in which he is to exercise a discretion, and if he refuses his
fiat this Court has no power to issue a mandamus to compel him".
Mr Justice Erle and Mr Justice Compton delivered judgments to the same effect.
In R v Controller & General of Patents [1889] 1 QB 909 at page 913, Lord
Justice A.L. Smith speaking of the Attorney-General said:
"We know that he has had from the earliest times to perform high judicial functions
which are left to his discretion to decide."
He then gave examples of the exercise of his discretion with which the court could
not interfere, including the issue of his fiat to enable a man sentenced to death to
argue a point of law in the House of Lords; the issue of a nolle prosequi and statutory
functions, including those under the Patents, Designs and Trade Marks Act 1985.
Lord Justice Collins and Lord Justice Romer agreed.
In London County Council v Attorney General [1902] AC 165, the headnote includes
this statement:
"The jurisdiction of the Attorney-General to decide in what cases it is proper for him
to sue on behalf of relators is absolute."
That is based upon what Lord Halsbury said at page 168-169 with which Lord
MacNaghten concurred. These statements were obiter, but nevertheless of high
authority. In the Attorney-General v Westminster City Council [1924] 2 Ch. 416 the
dictum of Lord Halsbury was followed and applied by the Court of Appeal in another
relator case.
In Gouriet v Union of Post Office Workers [1977] QB 729 the Applicant sought a
declaration that the Attorney-General, in refusing his consent to a relator action,
acted improperly and wrongfully exercised his discretion, though it appears that on
the last day of the hearing in the Court of Appeal this claim was abandoned.
Lord Denning, Master of the Rolls, in a dissenting judgment, held that the AttorneyGeneral had an absolute discretion which would not be enquired into by the Courts
when he exercised it by granting his consent to his name being used to prosecute;
but that when he refused to consent, the Court had the power to intervene.
Lord Justice Lawton at page 768, after referring to the case of The LLC v AttorneyGeneral and Attorney-General v Westminster City Council said this:
"I accept that the courts have no jurisdiction over the discretion of the Attorney
General as to when, and when not, he should seek to enforce the law having public
consequences. The courts cannot make him act if he did not wish to do so; nor can
they, as of right, call upon him to explain why he has not acted."
It is arguable that this passage is obiter in the light of the concession and
abandonment by the applicant of his claim to relief against the Attorney-General (see
also the beginning of Lord Justice Lawton's judgment at page 763).
I am satisfied that it was the basis of reasoning in the judgment and was so regarded
when the case was considered in the House of Lords [1978] A.C. 435 (see per Lord
Wilberforce at page 474A and Lord Edmund-Davies at page 505 E to G.
Lord Justice Ormrod put the matter succinctly at page 772. When he said this:
"This case raises not one but two questions of major constitutional importance: first,
whether the Attorney-General is answerable to the court, or only to Parliament, for
the exercise of his discretionary powers....
The first question may be answered, in my judgment, shortly and unequivocally. The
Attorney-General's discretion is not subject to review by the court, he is not
answerable to the court in this respect, and like everyone else, he cannot be
compelled to act as a plaintiff against his wish. There is, therefore, no clash or
conflict in this respect between Parliament and the court or between the court and
the Attorney-General."
When the case went to the House of Lords, the issue no longer arose because it had
been abandoned by the Applicant. Nevertheless, the members of the House
considered it a matter of such importance that they should express their views and
firmly repudiated Lord Denning's dissenting opinion.
This was most trenchantly done by Viscount Dilhorne, himself an ex AttorneyGeneral. At page 487 E to G he then continued:
"The Attorney-General has many powers and duties. He may stop any prosecution
on indictment by entering a nolle prosequi. He merely has to sign a piece of paper
saying that he does not wish the prosecution to continue.
He need not give any reasons. He can direct the institution of a prosecution and
direct the Director of Public Prosecutions to take over the conduct of any criminal
proceedings and he may tell him to offer no evidence.
In the exercise of these powers he is not subject to direction by his ministerial
colleagues or to control and supervision by the courts. If the court can review his
refusal of consent to a relator action, it is an exception to the general rule.
No authority was cited which supports the conclusion that the courts can do so.
Indeed such authority as there is points strongly in the opposite direction."
He then cited the LCC v Attorney-General. Lord Wilberforce's speech is to the same
effect. He regarded the propositions as elementary (see page 479 A to B). Lord
Diplock agreed with what Lord Wilberforce and Viscount Dilhorne had said at page
500.
Lord Edmund-Davies endorsed the views of Lord Justice Lawton and Lord Justice
Ormrod at page 505. Lord Frazer of Tullybelton said at page 523 G:
"It seems to me entirely appropriate that responsibility for deciding whether to initiate
preventive proceedings for injunction or declaration in the public interest should be
vested in a public officer, and for historical reasons that officer is the AttorneyGeneral.
It is well established that he is not bound to prosecute in every case where there is
sufficient evidence, but that when a question of public policy may be involved the
Attorney-General has the duty of deciding whether prosecution would be in the
public interest...."
Then a little later between C and D, he said this:
"If the Attorney-General were to commit a serious error of judgment by withholding
consent to relator proceedings in a case where he ought to have given it, the remedy
must in my opinion lie in the political field by enforcing his responsibility to Parliament
and not in the legal field through the courts.
That is appropriate because his error would not be an error of law but would be one
of political judgment, using the expression of course not in a party sense but in the
sense of weighing the relative importance of different aspects of the public interest.
Such matters are not appropriate for decision in the courts."
In R v Attorney General ex parte Edey, a Transcript, 26th February 1992 in rejecting
a renewed application for leave to move for judicial review of the Attorney-General's
refusal to prosecute under section 47 of the Shops Act 1950 relating to Sunday
Trading, the Court of Appeal considered themselves bound by the majority decision
of the Court of Appeal in Gouriet v Union of Post Office Workers.
It is right to say that in that case the Attorney-General's reasons for declining to
prosecute related not to insufficiency of evidence, but what might be considered
matters of political judgment.
Finally, there is the decision of Mr Justice Popplewell in R v Attorney-General ex
parte Ferrante, Transcript of 1st July 1994. The Applicant sought judicial review of a
decision of the Attorney-General refusing to give his authority for an application to
the High Court under section 13 of the Coroners Act 1988.
After reviewing the authorities to which I have referred and also R v the Inland
Revenue Commission ex parte National Federation of Self Employed [1982] A.C.
617, Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374
and R v Secretary of State for the Home Department ex parte Bentley [1994] QB
349, to which we have been referred by Mr Robertson Q.C.. Mr Justice Popplewell
derived the following propositions:
"(1) Gouriet is of general application and is not limited to relator actions.
(2) The decision whether the power of the Attorney General is immune from review
does not depend upon the source of those powers but on their character. Arguments
relating to the prerogative and statutory duties are sterile.
(3) The Attorney General is acting as guardian of the public interest in applications
under Section 13 of the Coroner's Act.
(4) The fact that he is no longer the exclusive guardian of the public interest if
irrelevant. His continued inclusion as a necessary element in the re-hearing of an
inquest makes that clear.
(5) The fact that a local authority exercising similar powers is subject to judicial
review though logically compelling is not a reason for making the Attorney General
so subject.
(6) The question of whether the decision is amenable to judicial process depends on
the nature and subject matter.
(7) It is for the Courts to decide on a case by case basis whether the matter in
question is reviewable or not.
(8) The Attorney General's consent is required for a wide variety of litigation. Thus in
the criminal law in relation to corruption, explosive substances, official secrets, Public
order act offences, racial hatred offences, proceeding under the Contempt of Court
Act 1981 Section 7 power to enter a nolle prosequi in civil law the power to make a
litigant a vexatious litigant.
(9) These are only some of the situations in which Parliament has imposed upon the
Attorney-General, the right as guardian of the public interest either himself to bring
the proceedings or to give authority for proceedings to be brought. These examples
are of a similar nature; which involve or may involve questions of policy which it is for
Parliament and not for the Courts to assess."
Faced with this formidable array of authorities, Mr Robertson submitted that the law
had moved on since Gouriet, the scope of which was now much confined, and that
where as here the decision was taken on the basis of insufficiency of evidence as
opposed to political considerations, the Attorney-General's decision was justiciable in
the same way as the decisions of other prosecuting authorities.
He refined his submission to this proposition: where law officers exercising statutory
power which makes a preexisting right of private prosecution dependant upon their
consent, decide that there is insufficient evidence to prosecute, that decision may be
reviewed on application by the victim of the offence on the grounds of Wednesbury
unreasonableness, error of law or procedural irregularity or unfairness.
Mr Robertson submits first that the Attorney-General's decision under section 7 of
the 1981 Act falls within the general principles upon which decisions of a public
officer are reviewable as set out in the R v Land President ex parte Page [1993] AC
682 at 701 C to D, Leech v The Deputy Governor of Parkhurst Prison [1988] AC 533
at 5612 G to H, R v Panel on Take-overs and Mergers ex parte Datafin [1987] QB
815 at 838 D to E.
Secondly, he points out that these principles have been applied to other prosecuting
authorities in relation to decisions whether or not to prosecute. R v Commissioner of
Police, ex parte Blackburn (No 3) [1973] 1 QB in relation to the police.
R v General Council of the Bar ex parte Percival [1991] 1 QB 212 in relation to
disciplinary proceedings by professional bodies. R v Inland Revenue Commission ex
parte Meade [1993] 1 A.E.R. 772 in relation to the Inland Revenue and R v Director
of Public Prosecutions ex parte C [1995] 7 A.E.R. 385 in relation to the Director of
Public Prosecutions.
These cases show that in very limited circumstances the Court will intervene. Since
all prosecuting authorities have to take into account whether it is in the public interest
to prosecution. Mr Robertson submits that the Attorney-General is in no different a
position.
He also submits that because the reason why the Attorney-General's decisions are
not reviewable is because matters of policy are not justiciable in the Courts, but are
matters for which the Attorney-General must answer to Parliament, where, as here,
the decision is not based on policy considerations but on sufficiency otherwise of the
evidence, which is a matter eminently within the purview of the court, it can and
should be reviewed.
I cannot accept these submissions. The authorities to which I have referred which lay
down the rules in relation to the Attorney-General, point to his unique constitutional
position. If his office was invented by statute tomorrow without the weight of
precedent as to his position, there would be great force in Mr Robertson's
submission, but they cannot override the clearly established position.
Moreover, the fact that the reason for the non-reviewability of the decision relates to
the policy considerations, does not mean that where such considerations do not
arise in a particular case, that decision is exceptionally reviewable. There is no logic
in that argument and it would be difficult, if not impossible, to apply in practice.
I cannot see the fact that section 7 of the 1981 Act of Parliament took away the
hitherto existing right of a citizen to apply to this court under Order 52 Rule 2 for
leave to move for committal for contempt advances the Applicant's argument in any
way. In practice prior to the Act, criminal contempts were prosecuted by or with the
Attorney-General's consent.
Parliament must be taken to know the law as stated in Gouriet and the previous
authorities; and if it had intended the Attorney-General's discretion to be reviewable
by this court in this instance, in my view it would have said so.
Furthermore, it seems to me apparent, that the court having jurisdiction to deal with it
could itself have at least in theory, acted of its own motion if the Attorney-General
declined to institute proceedings or give his consent.
Thus it was open to the Court of Appeal in this case when they were notified of the
Solicitor General's decision to have taken this course. This seems to me to be the
position at least in theory.
I do not suppose for a moment any court would do any such thing; but if it did
consider the matter, and decided either to institute proceedings of its own motion or
not, that decision is plainly not reviewable.
Although the scope of the actual decision of the House of Lords in Gouriet has been
much restricted by the introduction of judicial review, which now enables an
individual with a specific interest to challenge unlawfulness directly, so that it is no
longer necessary to have recourse to a relator action, what the members of the
House of Lords said about his constitutional position of the Attorney-General's vis-avis the Court is not affected by this change.
The fact that the source of this power is statutory and not the prerogative is also not
in point. It is now well established that the source of power is immaterial, it is the
nature of it is that it is important, see the CCSO case.
In my judgment Ex parte Edey is indistinguishable from the present case and is
binding upon us.
Even though the applicant was unrepresented, the Court had the advantage of
submissions from Mr Richards on behalf of the Attorney-General and it cannot be
said that the decision is per incuriam. I also respectfully agree with
Mr Justice Popplewell's decision in ex parte Ferrante and adopt the nine propositions
which are set out. The case went to the Court of Appeal, but that Court did not
consider the issue of jurisdiction. I do not consider there is any distinction in principle
between the statutory power in the two cases.
In my judgment, the court has no jurisdiction to review the Solicitor General's
decision in this case.
Was the decision Wednesbury unreasonable?
Since, however, we have heard full argument upon the question, I should also deal
with the submission that the Solicitor's General decision was irrational and such that
no reasonable Solicitor General could arrive at.
Mr Robertson recognises that this is a very high burden to discharge. Naturally, he
places much reliance on the view of the Court of Appeal as expressed by Lord
Justice McCowan. But those views are not binding on the Law Officers and it is plain
that the Attorney-General has to make his own decision based on his own
appreciation.
Furthermore, the questions are not the same. The Court was considering whether
the convictions were safe and satisfactory having regard to the risk of prejudice to
the defendants.
The Solicitor General was considering whether a prosecution was likely to succeed
on the basis that the publication in question created a substantial risk that the course
of justice will be seriously impeded or prejudiced having regard to the burden and
standard of proof in such a prosecution.
It was submitted that the Solicitor General had, in fact, applied the wrong test,
because he had only looked at the various publications item by item and had
overlooked the need to consider the various articles or comments in the same
publication, the cumulative effect of reporting by one newspaper over the period of
the trial or the publication of a particular item against the general background of the
press coverage.
This submission was based on the letter of 24th June 1994, the last paragraph of
which I have quoted and may perhaps give rise to this interpretation.
In their skeleton argument on behalf of the Respondent Counsel indicated that the
Solicitor General did not adopt such a restricted view and there is no difference
between the parties as to the correct approach, although, of course, any committal
proceedings would have to be based on a particular publication or publications.
I accept that there was no error of approach on the part of the Solicitor General in
this respect.
In their skeleton argument, the Respondent's Counsel analysed what they took to be
the worst examples of press coverage under the following headings: assumed guilt,
prejudicial comment, factual inaccuracy and sensational wording, and gave reasons
why it was considered that committal proceedings would not be likely to succeed in
respect of them.
I need only refer to two examples, since those are the two upon which Mr Robertson
relies most heavily. The first is a report in the South London Press of 17th July 1992,
under the headline, "'I lied, says key witness." There is the comment:
"The alibi of murder trial defendant Michelle Taylor has been torn to shreds by her
best friend at the Old Bailey."
This was a reference to the evidence of J.J. Tapp which, if it was believed, did
destroy the Defendants alibi. The Solicitor General accepts that this was a comment
on the evidence of the alibi witness and was not merely a fair and accurate report of
that evidence.
Moreover, this witness was a crucial one as the trial judge made plain to the jury; if
she was now telling the truth and her previous account to the police supporting the
alibi was a lie, it inevitably meant that Michelle had lied in her evidence and Lisa in
her statement about where they were at the material time.
The Solicitor General considered that it was difficult to see how this comment could
have seriously prejudiced the jury. This is a value judgment which, in my view, he
was entitled to make. In my judgment it is possible to have two views on this point,
though for my part I am inclined to agree with the Solicitor General.
I think the jury were well able to appreciate that it was their assessment of this
witness that mattered and they should decide this on the evidence and not anything
that they may have seen or read. The judge warned them that on a number of
occasions.
As the trial progresses the jury tends to concentrate much more on the actual
evidence; I agree with Mr Havers Q.C. that there is or may be a distinction between
prejudicial material published before a defendant's trial, for example his previous
convictions and a comment, albeit unjustified, as to the reporter's view of a witness
who the jury have heard, and who they know it is their duty alone to assess.
I am quite satisfied that the decision in relation to this publication cannot be said to
be irrational.
The second example is the "Cheats Kiss" photograph and accompanying captions. It
was submitted on behalf of the Applicants that these photographs and articles tend
to suggest that the relationship between John Shaughnessy and Michelle was more
serious that she admitted in evidence, that they suggested that she was not being
honest with the Court, that she was a cheat, and a consummate actress.
Assuming for the purpose of argument that the article did suggest all this, it cannot in
my view be stated to be an inappropriate description having regard to her own
evidence relating to her relationship to which I have already referred.
She and Shaughnessy had undoubtedly cheated on Alison as that expression is
commonly understood in sexual relationships. She had abused the hospitality of
Alison and her parents and obviously deceived them as to the nature of her
relationship.
Those were all matters that had emerged in evidence or at least been put in crossexamination at the time of publication. For my part, I think it is quite impossible to
suggest that the Solicitor General's decision was irrational.
It is true that as a result of the use of the video, the press coverage concentrated to
an absurd extent on the victim as a bride. This tended to suggest that the time
interval between the wedding and the murder was much less than it was, namely
nearly 12 months.
This might well have misled the public, but it cannot have misled the jury who were
well aware of the true position. It is also true that the coverage was sensational and
extensive; it does no credit to the tabloid press.
But the facts alleged by the Crown and to a large extent accepted so far as the
relationship between Shaughnessy and Michelle were concerned, were of a
sensational nature.
Finally, it was submitted by Mr Robertson that it was irrational for the Solicitor
General to have differed from the view expressed on behalf of the Attorney-General
in the letters sent to the editors. This submission is untenable.
It was clearly the duty of the Solicitor General to consider the representations made
and the further material which came to light as a result of that. Where it otherwise,
there would be no point in writing the letters.
Fairness and the giving of reasons for the decision
It is submitted on behalf of the Applicants that fairness demanded in that they should
be consulted so that they could make representations to the Solicitor General before
the decision was taken, because they were persons affected by it. I do not agree.
This was not a case where the Applicants had sought the Attorney-General's
consent to prosecute; apart from a letter from their parents prior to the appeal raising
the question of press coverage, they had shown no interest between the time the
appeal was allowed in June 1993 and 23rd May 1994 when their solicitors wrote.
The persons affected by the decision were the potential defendants, namely the
newspapers. Very properly they were asked for their comments. It was quite
unnecessary to consult the Applicants and there was no obligation to do so.
The Law Officers had before them the views of the Court of Appeal and the
Applicants complaints were set out in the Notice of Appeal. Mr Robertson submitted
that if prosecuting counsel was to be consulted then defence counsel should have
been too. I do not agree; in any event, such consultation would have added nothing.
There is before the Court an affidavit from Mr Ferguson Q.C.; who represented
Michelle but it is plain that his recollection of the state of the evidence about the
relationship of Michelle and John Shaughnessy at the time of the wedding was at
fault.
Moreover, in the circumstances of this case, I consider that no criticism can be made
of the refusal to give more detailed reasons than that given in the letter of 24th June
1994, even though the decision differs from the view of the Court of Appeal.
In any event, we now have a full explanation and even if the decision was reviewable
and the reason given inadequate, as a matter of discretion, I would have refused
leave.
Locus standi
Mr Richards also submitted that the Applicants had no locus standi because they
had no sufficient interest, it would have been different if they had sought the
Attorney-General's consent under section 7 of the 1981 Act; but they did not.
They can have no private interest in the outcome, the sole consideration being the
public interest in the proper administration of justice. This is a powerful submission.
In light of my conclusion both on jurisdiction and the merits of the main submissions,
I do not find it necessary to reach a conclusion upon it.
For those reasons I would dismiss this application.
MR JUSTICE BUTTERFIELD: I agree. I do not wish to add anything on the issue of
the jurisdiction of this Court to review the decision of the Attorney-General. On the
question of the reasonableness of his decision, I have been considerably troubled by
the newspaper coverage of the trial of the Applicants.
It seems to me that some of that coverage crossed the acceptable limits of fair and
accurate reporting by a substantial margin. In some instances, in my judgment,
neither of those adjectives were in any way applicable.
However, I am persuaded after anxious consideration that there are two views which
may properly be held on the prejudicial effect of that reporting on the fairness of the
proceedings.
Accordingly, I too would dismiss this application.