House of Lords
Published June 18, 2009
In re British Broadcasting Corporation: Attorney-General’s Reference (No 3 of 1999)
Before Lord Phillips of Worth Matravers, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury
Speeches June 17, 2009

Balancing the defendant’s right to privacy under article 8 of the European Convention on Human Rights against the right of the British Broadcasting Corporation under article 10 of that Convention to freedom of expression and communication, an order made by the House of Lords in October 2000 in an Attorney-General’s reference prohibiting identification of the defendant, D, should be discharged.

The House of Lords so held on an application by the BBC for discharge of the order.

Mr Gavin Millar, QC and Mr Anthony Hudson, directly instructed by Miss Nicola Cain of the BBC Litigtation Department; Lord Pannick, QC and Mr David Pievsky as advocates to the House; D did not appear and was not represented.

LORD BROWN said that for centuries past it had not been possible to retry a defendant following acquittal on indictment, whatever damning evidence might have subsequently come to light: the double jeopardy rule.

Part 10 of the Criminal Justice Act 2003 now made it possible in the case of specified serious offences where the Court of Appeal was satisfied that there was new and compelling evidence available (section 78(1)) and that a retrial would be in the interests of justice (section 79(1)). Thus far the power had been little used; it seemed that only the second such retrial was to take place in December 2009.

That was the context in which the BBC were anxious to broadcast a series of programmes designed to explore a number of controversial acquittals that they suggested warranted at least close consideration of possible retrials.

One was that of D, who had been acquitted of a most shocking offence: the anal rape of a woman aged 66 in her own home.

The acquittal, at the Central Criminal Court, had necessarily followed from the trial judge’s ruling that DNA evidence crucial to the prosecution case was inadmissible by virtue of section 64(3B) of the Police and Criminal Evidence Act 1984, as inserted by section 57 of the Criminal Justice and Public Order Act 1994.

D’s acquittal had been reported in two newspapers and a magazine, naming him. As matters stood, however, the BBC could not use D’s case as they would wish.

His acquittal had been the subject of an Attorney-General's reference under section 36(1) of the Criminal Justice Act 1972, initially to the Court of Appeal and then on further reference to the House of Lords, Attorney-General’s Reference (No 3 of 1999) (The Times December 15, 2000; [2001 2 AC 91]), which had decided that the DNA evidence had not been inadmissible but could have been admitted at the judge’s discretion under section 78 of the 1984 Act.

At the beginning of the hearing, on October 23, 2000, the House had ordered “that, pursuant to section 35 of the Criminal Appeal Act 1968 and the Criminal Appeal (Reference of Points of Law) Rules 1973 (SI 1973/1114), no mention shall be made in any publication or broadcast of the proper name of any person or place which is likely to lead to the identification of [D] until further order.”

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