29/03/99 - Nicholls v British Broadcasting Corporation - Court of Appeal JUDGMENT

JUDGMENT

Confidential Information - Remedies - Breach of confidentiality - Injunction - "Supergrass" documentary including close-ups of features and mannerisms of plaintiff and wife - Whether broadcasting of documentary would substantially increase risk of harm to plaintiff or family above and beyond that of pre-broadcasting publicity - Nicholls v British Broadcasting Corporation - Court of Appeal (Civil Division) - Butler-Sloss LJ, Schiemann LJ, Potter LJ - 29.03.99

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

Royal Courts of Justice

29th March 1999

BEFORE:

LADY JUSTICE BUTLER-SLOSS

LORD JUSTICE SCHIEMANN

LORD JUSTICE POTTER

BETWEEN:

DARREN NICHOLLS

Plaintiff/Appellant

and

BRITISH BROADCASTING CORPORATION

Defendant/Respondent

JUDGMENT

LORD JUSTICE POTTER:

INTRODUCTION

The appellant, Mr Nicholls, is a "Supergrass" now living under an assumed name. He has a wife and two young children. He gave evidence at the Central Criminal Court at the end of 1997 which resulted in the conviction in January 1998 of two men, Steele and Whomes, for the gangland murder of three large scale drug dealers in Essex in 1995.

The resulting threat to his life and the safety of his family was thought to be such that, in May 1996, they were placed on the Essex Police Witness Protection Programme. They now live a new life in England, far from their former home.

The appellant and his wife are the subject of a television programme entitled "Supergrass" ("the film") which was scheduled to be broadcast on BBC 1 on Wednesday 3rd February 1999. It had been made with the full co-operation of the appellant, measures being taken to conceal the physical identities and location of himself and his wife, who appeared in the film.

However, a few hours before the film was due to be shown, upon application being made by telephone to Poole J for an Order restraining its showing, the appellant was granted an Order in these terms:

"The defendant, that is the BBC, must not broadcast to the public any programme which shows any physical characteristics of the plaintiff, his immediate family, or those living with him, or directly or indirectly identifies his current whereabouts or those of his immediate family or those living with him."

Upon notice of the injunction being granted, the BBC ("the respondents") attempted unsuccessfully to obtain a discharge or variation of the Order and the film did not go out.

On 18th February 1999 Morland J, at an inter partes hearing, discharged the injunction. He refused leave to appeal but, upon being informed that the appellant would apply for leave to this court, he ordered that the terms of the injunction should continue in force until the determination of the application for leave to appeal and, should leave be granted, of the substantive appeal.

THE FACTS

More fully stated, the relevant background is as follows. The victims of the murder on the 7th December 1995 were three known drug dealers, Tate, Tucker and Rolfe, who were found shot dead in a Range Rover parked on a farm track in Rettenden, Essex.

In May 1996 the Essex Police arrested the appellant, Steele and Whomes in relation to drug offences. A few days later Steele and Whomes were charged with murder upon the statement of the appellant, their accomplice, who had driven them to the scene of the shooting.

He offered his evidence in return for immunity from prosecution for the murders. Pending the trial, the appellant was held on remand and in custody, his wife and children being placed under the protection of Essex Police and relocated in a safe house.

In the meantime, the Head of Factual Drama at London Weekend Television ("LWT") was approached by a journalist, Tony Thompson, with the appellant's authority, with a suggestion for a film about the appellant and his experiences as police informer about which Mr Thompson was already writing a book.

As a result LWT commissioned a "video diary" type of film featuring the appellant before, during and after the trial of the murders. On 22nd May 1997 the appellant (under the assumed name of Ken Rugby), Thompson and LWT entered into an agreement in relation to the project.

Clause 8 of the Agreement (Right Of Consultation) provided as follows:

"Mr Rugby shall have a right of consultation in respect of a final edit of the Programme solely for the purpose of ensuring that his identity is concealed throughout the programme".

Clause 10 (Acknowledgement) provided:

"You [Mr Rugby] hereby acknowledge that there may be risks involved in the rendering of your Services and the exploitation of the products of your Services hereunder and that you voluntarily assume the entire risk of any loss, damage or injury which you incur as a result thereof."

Extensive video diary filming of the appellant was carried out between May and the trial, including certain sequences in the police cells, with a view to the final product being shown on Channel 4. From June 1997 the person in LWT responsible for the film and its completion was Mr William Smith.

At trial, the appellant gave evidence against Steele and Whomes, being protected from the public gaze by screens, while remaining visible to the defendants, the jury and the judge. Following the trial, the appellant and his family were relocated under the Witness Protection Programme, various filmed sequences being made thereafter.

In October 1998, LWT entered into a new agreement with Mr Thompson relating to the making and exploitation of the film.

However, in late October 1998 the new commissioning editor of Channel 4 decided that Channel 4 did not wish to proceed with the film as then planned and LWT approached the editor of the respondents' "Inside Story" series, which commissioned a film about the appellant in the form of a full-scale documentary (involving further filming of the appellant), rather than a video diary.

The respondents did not enter into any agreement with Mr Thompson or the appellant in relation to this further filming, its obligation under the commissioning agreement being only to LWT.

It is stated in the first affidavit of Mr Smith that it was always made clear to the appellant, through Mr Thompson, that LWT had no intention of including any material in the final version of the film which might reveal the appellant's new identity or his new whereabouts, Clause 8 of the Agreement being included to ensure that that was so.

When further filming took place between November 1998 and 3rd February 1999, in various locations, LWT went to considerable lengths to meet concerns expressed by the appellant, his wife, Mr Thompson and the Essex Police about the possible identification of the appellant, his family or their new whereabouts.

On 31st October 1998, the appellant discussed the proposed filming techniques for the on-screen interviews including use of close-ups of limited facial detail.

In November 1998 he and his wife participated in sequences shot at a beach somewhere in England, it being expressly agreed that only long distance shots would be used and that, in the subsequent interviews, extreme close-up shots would be employed whereby only a limited part of the face would be visible.

They were given the opportunity to look at a television monitor to see how they were depicted and raised no objections.

In December 1998 the programme's assistant producer met the appellant with a photographer to take photographs for the purposes of promotion and publicity, the appellant being photographed holding his hands up so as to cover his face.

One of the photographs taken during that session was used to publicise the film, being reproduced in the national press. In January 1999 further filming took place. During January a video tape containing extracts of interview sequences was sent to Mr Thompson, who sent them on to the appellant.

Mr Thompson expressed concern about a shot containing a reflection of the appellant in a metal tap and that shot was excised. Following a view of a rough-cut of the film, at Mr Thompson's suggestion, the appellant's voice was treated electronically to disguise it.

The appellant was offered the opportunity to watch the whole film. However, he was unable easily to attend and indicated that he was content for Thompson to watch it on his behalf.

At the end of January 1999, an article was published about the appellant in the Sunday Mirror which publicised the position of the appellant as a supergrass but did nothing to identify him. The appellant telephoned the assistant producer of the programme informing him that his sister-in-law had received a threatening telephone call and that the police felt obliged to put alarms on her house.

He also said that his mother had been warned by the Essex Police that he was putting his family at risk by taking part in the film and that the Essex Police were threatening to take him off the Witness Protection Programme; however he still wanted the film to go ahead.

On 1st February 1999 the appellant indicated that he wished the showing of the trailer advertising the programme, the broadcast of which had commenced on 28th January, to be stopped. He said the police were offering to relocate his wife and children but that he had declined their offer to be moved, a fact later confirmed by the police.

On that day Mr Smith contacted the Essex Police who asked to view the programme. When Mr Smith arrived at Chelmsford Police Station for that purpose he was handed a letter from the Essex Police dated 1st February 1999 setting out their position and stating:

"INSIDE STORY: WITNESS PROTECTION

"The above programme made by yourselves.. involves an individual who is being protected by Essex Police under the Witness Protection Programme.

It is the belief of Essex Police that as a result of his involvement in this programme, this individual has put himself and the officers protecting him at greater risk of harm than existed prior to the programme being made and shown on television.

The individual has been advised and I would ask you to note that his involvement with your programme is not endorsed or encouraged by Essex Police, and it is at his own risk."

The letter went on to state that the police attitude and intentions would be further clarified after consideration of the programme.

Thereafter police officers, and the Essex Police solicitor viewed the programme, voiced various concerns and made various suggestions which Mr Smith undertook to discuss with the respondents.

It was agreed that parts of the visual shots would be excised or altered to meet the concerns expressed and that the electronically treated voice-overs would be removed and replaced with actors' voices. A further view was arranged for the next day and the same persons attended at LWT.

They were offered the opportunity to watch the film in its entirety but declined, asking simply to view the changes which had been made since the meeting and to listen to a sample of the actors' voices which would be used.

A police officer expressed his satisfaction that the producers had made every effort to act on the suggestions of the Essex Police and that the police would not themselves seek an injunction to restrain the broadcast. However, they did not express approval of the film or withdraw from their view that it gave rise to increased risk to the appellant and his family.

THE JUDGMENT BELOW

Before the judge, the principal submission for the respondents was that the identity of the appellant as a supergrass was already fully in the public domain, in the sense that his original name with a picture of him, as he used to be, are available to the public as part of a campaign by the family of one of the convicted men to establish his innocence and that, so far as the film itself was concerned, pre-publicity cards in relation to the appellant showing him clad as for the film and with his face covered by his hands were already in wide circulation.

In these circumstances, the respondents submitted that a cause of action based on breach of confidence was not available to support the grant of an injunction.

For the appellant, Mr Newman Q.C. advanced the case on the basis that there was a real danger that someone, in the locality where the plaintiff and his family are now living, might recognise the plaintiff or his wife from the close-up pictures in the programme, and, realising that they were newcomers to the locality might disclose their true identity which could get back to hitmen in the criminal underworld connected with the murderers or their victims.

The appellant's case on the question of increased risk was essentially that set out in a letter of 10th February 1999 from the solicitor to the Essex Police, explaining the police position in full, to which I shall refer further hereafter.

The judge, having canvassed the arguments, referred only shortly to the law. He did not deal expressly with the question of breach of confidence but stated that he was satisfied that he had power to make the Order obtained so long as the facts and circumstances warranted it, referring to certain observations of Lord Goff in South Carolina v Assurantie [1987] 1 AC 25 at 44G as follows:

"I am reluctant to accept the proposition that the power of the court to grant injunctions is restricted to certain exclusive categories. That power is unfettered by statute; and it is impossible for us now to foresee every circumstance in which it may be thought right to make the remedy available."

However, having carefully set out the rival submissions as to the facts and relevant history, Morland J stated:

"I have reached the clear conclusion that no significantly increased risk of life and limb will be occasioned to the plaintiff or his family if the programme in its present state of editing as seen by me is broadcast.

"For these reasons the Order of Poole J will be discharged."

In refusing leave to appeal the judge stated his reason as follows:

"After a full hearing I came to the conclusion that there was no significantly increased risk to life and limb to the plaintiff and his family if the programme was broadcast. I have to balance that risk against freedom of expression and the BBC's duty to broadcast serious programmes of public interest."

THE GROUNDS OF APPEAL

It is accepted by the appellant that the judge was right, in exercising his discretion, to balance the risk of harm to the plaintiff or his family against any curtailment of freedom of expression if the injunction were continued.

However, it is said that he failed to take account of another vital public interest, namely the serious harm to the administration of justice if the programme were aired, taking into account the observations of the Essex Police in their letter of 10th February.

It is said that the judge had to decide, as a precursor to the exercise of his discretion, whether the physical characteristics of the appellant and his wife as depicted in the programme were such as significantly to increase the risk of identification by someone from the community in which the plaintiff now lives under a new identity.

In this respect it is submitted that, although various witnesses for each of the parties deposed as to their subjective views as to the likelihood of identification occurring, there was no "professional" evidence to contradict the considered and objective views of the Essex Police, and that the judge should not have substituted his own view of the risk factor for views expressed by Witness Protection Programme officers.

On that basis, and on the basis of the content of the film, which the judge viewed on video, it is asserted that the judge was manifestly wrong to ignore the depiction of physical characteristics from which the appellant's new neighbours and acquaintances could identify him.

Finally, it is stated that, in balancing the competing public interests, the judge should have adopted an approach consistent with that adopted by the courts when dealing with public interest immunity applications relating to the disclosure of the identity of informants in criminal proceedings.

Had he done so, it is submitted that he would have decided that the needs of the due administration of justice outweighed the requirements of freedom of expression.

THE CAUSE OF ACTION

This court has been spared lengthy argument upon the nature of the appellant's cause of action. There is now before the court (as there was not before the judge) a statement of claim in which the matter is put on two bases.

(1) It is pleaded that the respondents owe to the appellant a duty of confidentiality in respect of any footage in the film which reveals the physical features of the appellant and his wife in such a way as to compromise the protection of his identity and present location.

Mr Newman Q.C. for the appellants has founded this duty upon the knowledge which the respondents had of the basis of the appellant's co-operation (even if not the terms of his contract) with LWT, and the recognition in the affidavit of Olivia Lichtenstein (the editor of the "Inside Story" series) that there were detailed discussions between the respondents and LWT as to the measures to be taken to protect the appellant's new identity.

During those discussions, she learned of LWT's assurances to Mr Thompson (as the appellant's agent) that the programme makers had no intention of including any footage which might reveal the appellant's identity and the filming thereafter continued on that common undertaking.

(2) Alternatively, reliance is placed on the widely worded statutory jurisdiction of the court under s.37(1) of the Supreme Court Act 1981 as apt to cover a situation in which it is alleged that, by broadcasting the programme, the respondents would be facilitating the commission of a serious crime, namely the murder of, or serious bodily harm to, the plaintiff and/or his wife and family.

Whether or not because of doubts which he felt in relation to (1), the judge was content to rest his jurisdiction on (2), relying on Lord Goff's reservation which I have already quoted from the South Carolina case at p.42 (with which Lord MacKay agreed) in relation to the formulation by Lord Brandon of the "basic principles" governing the grant of injunctions: see p.39H-40E (with which Lord Bridge and Lord Brightman agreed).

It is unnecessary for this court to engage in consideration of the various interesting questions which arise in relation to (2), because Mr Browne Q.C. for the respondents has been content to accept for purposes of this interlocutory appeal that an arguable cause of action exists on the basis of confidentiality as set out in (1).

The respondents take the pragmatic and commendable view that, if it is this court's opinion that the showing of the programme in its present form would indeed substantially increase the risk of harm or injury to the plaintiff or his family, over and above that which already existed on 3rd February by reason of the plaintiff's activities and co-operation in the pre-programme publicity, then they would not to wish to show the film.

THE ARGUMENT

A good deal of time has been spent before us in exploring the history of the matter and seeking to analyse the motives and test the attitude of the appellant who, having originally been content to leave approval of the film to the discretion of Mr Thompson (who appeared to accept the steps taken by the respondents as sufficient), belatedly changed his stance to one of reliance upon objections advanced by the police.

Mr Browne Q.C. also urged the court to adopt an attitude of scepticism towards the objections of the police, which, as he submitted, appeared on examination to be based upon a natural antipathy to any form of publicity in respect of persons relocated under their Witness Protection Programme, rather than upon genuine or, at any rate, rational fears that the film would prejudice the safety of the appellant or his family.

Taking those matters into account, Mr Browne Q.C. argued that the judge, having viewed the film, was fully entitled to form the view that no significantly increased risk to life and limb would be occasioned to the plaintiff or his family if the film were transmitted.

Mr Newman Q.C. on the other hand, has argued as follows. First, while accepting that there is likely to be a natural antipathy on the part of the police to films of this kind, he submits that they are in the best position to assess the question of increased risk.

In this respect he relies upon the content of the letter of 10th February 1999. Besides setting out certain general considerations in relation to the safety of persons the subject of Witness Protection Programmes, and making clear that the appellant acted contrary to police advice, that letter includes the following statements of fact or expression of view.

The appellant is under protection because he is regarded as at high risk of harm, due to the evidence he gave against the two men convicted. Even after the alterations to the film effected at the request of the police on 1st February, the police considered that the safety of the appellant and his family would be further compromised if the programme were shown.

The parts of the programme which offended in this respect were the many close-ups showing the lower part of the appellant's and his wife's faces as they spoke and, in particular, those which showed the wife's distinctive tooth pattern as she talked, the appellant's teeth (which have distinctive staining) and (in distance shots) the appellant's outline and distinctive walk.

The letter does not mention (though I would add) that the shape and colour of their eyes are also revealed in close-up shots during interview.

Second, Mr Newman Q.C. invites the court, having viewed the film, to form its own opinion upon the likelihood that new friends or acquaintances, including shopkeepers, parents of the children's friends, habitues of the local pubs, and others now familiar with the appellant and his wife in their new life and location, may see the programme and recognise them as a result of the characteristics I have mentioned being portrayed upon the film.

This, as Mr Newman Q.C. submits, is essentially a matter of impression and common sense rather than expert opinion. In this respect, he refers also to the fact that observers of the film would be able to gather from its content that the appellant and his wife have children and the approximate time at which they would first have appeared in their new location.

Third, Mr Newman Q.C. argues, again as a matter of common sense rather than expertise, that if identification occurs, or indeed suspicions are aroused, there is a risk of that information being passed on to the family or associates of the convicted men.

In this connection, the programme not only makes clear that there is said to be a very high price upon the head of the appellant, but also that the family of one of the convicted men is anxious to locate the appellant to come forward and tell "the truth" as they assert it, namely that the man in question was not in fact at the scene at the crime.

THE CONTENT OF THE FILM

As already indicated, we have viewed the film. Without going into detail beyond that already remarked upon by the police in the letter of 10th February, I for my part am satisfied that, contrary to the apparent view of the judge below, a reasonably observant person acquainted with the appellant and his wife in the area in which they now live might well be able to recognise one or both of them from the extent of their features and mannerisms depicted in the film.

This is particularly so in relation to the wife, whose very distinctive tooth pattern is revealed as she speaks and whose face is exposed to a substantial extent at moments in the film. Thus, despite the well-intentioned efforts taken to eliminate the danger of recognition, I do not think it has been avoided.

Mr Browne Q.C. has urged, and I recognise, that the retention of the methods adopted, namely limited close-up rather than blanking out, is desirable to give the film a greater sense of immediacy and verisimilitude, and therefore greater impact upon the viewer; however, the price paid appears to me to have been failure of the safeguard intended.

I say that my view is contrary to the "apparent" view of the judge, because, rather than expressing a clear view whether or how far the content of the film might tend to identify the appellant and his wife, he simply expressed his decision in terms of "no significantly increased risk", without expressing the starting point from which such increase was to be assessed, or otherwise giving reasons for his view.

I assume, however, that his starting point was the situation as it existed on 3rd February, when pre-publicity had already gone out depicting (a) a frontal view of the appellant with his hands over his face and (b) the back view of a bulky figure in a woolly hat with no obvious distinguishing features or characteristics.

Although it is true that the police expressed concern that even those matters might to some extent compromise the safety of the defendant, I accept the view of the judge and the agreement of both Mr Browne Q.C. and Mr Newman Q.C. that those items of publicity were of no significance as aids to identification of the appellant.

That being so, the assessment of increased risk involves a comparison between the position as it stood on 3rd February when, so far as the public was concerned, there was a heightened interest in the defendant as a relocated and protected witness, but no significant pointers to his physical appearance or new identity, and a situation, if the film were shown, in which persons in the appellant's new community might well be able to recognise him and his wife as a result of their images on screen, coupled with other material available from the programme, such as the number and rough age of the children and the likely date at which the family arrived in the locality.

I also consider there is an appreciable risk that, if identification occurs then, either inadvertently or thorough malice, or with a view to reward, the whereabouts of the appellant's family may be brought to the attention of those who would seek to do him harm.

CONCLUSION

That being so, I consider that the judge was wrong in the conclusion to which he came. Not only was the risk of identification from the film self-evidently increased for reasons which I have stated, but the increase was in my view substantial.

Mr Browne Q.C. has submitted that, on the evidence available, this court should not interfere with the judge's decision because it involved an assessment of the evidence and risk in a manner well within the limits of the judge's discretion in relation to the grant of injunctions.

There is no indication that the judge omitted any important matter from his consideration; indeed it is clear that he carefully considered the evidence and submissions of the parties; that being so, submits Mr Browne, this court should not interfere simply because its own view may be different.

Superficially, that argument has force. However, in my view it is conditioned by three particular features of the case. (i) Mr Browne's concession that, if this court is satisfied that the showing of the film would indeed involve a substantially increased risk to the appellant and his family, including of course his children, then the respondents would not seek to show it.

Mr Browne's submissions have centred upon the question whether such increased risk has been demonstrated. (ii) Given that the undisputed assessment of the police that the appellant and his family are in any event potentially at risk from those who might seek them out in their new and presently unknown locality, the question of whether or not that risk is enhanced as a result of showing the film depends essentially upon an appraisal of the film itself and the degree to which recognition of the appellant or his wife is likely, if it is shown.

That is a task which this court is in as good a position to undertake as the judge. That being so, it seems to me that, if this court is of the clear view that the judge was wrong in his assessment of the film and its likely effect for the reasons which I have already given, then we are entitled to reverse his decision.

(iii) Independently of Mr Browne's concession, it seems to me that, in the special circumstances of a case which involves not simply the safety of the appellant but that of his wife and (minor) children, if, having seen the film, this court considers that the judge came to the wrong decision, then we should not hesitate to reverse it.

I do so consider. I therefore also consider that this appeal should succeed subject to the following observations.

Mr Browne Q.C. urged upon us, and I have well in mind, the importance of having regard to the principle of free expression. Mr Newman Q.C., on the other hand, has argued that we should have regard to the interests of the administration of justice and, in particular, the principle which protects the identity of informants in criminal proceedings.

So far as the principle of freedom of expression is concerned, while it is always of importance, and indeed should usually be the starting point from which the court proceeds, it does not seem to me a strong consideration in this particular case.

That is because it is common ground between the parties that the film was recognised from the outset by all concerned to be made on the basis that it should and would effectively protect the new identity and whereabouts of the appellant. The appellant is entitled to succeed because in its present form it does not do so.

There are a number of reasons why the public interest immunity protection of the identity of informers cannot be invoked in this case, the most obvious being that the true identity of the appellant as the informer has been well known for years (as opposed to his present name and whereabouts).

If and in so far as protection is sought simply upon the basis that the appellant is the subject of protection under a police Witness Protection Programme, difficult questions arise, not least as to the appropriate plaintiff in a claim put on such novel grounds.

For the purposes of this case, it seems to me neither necessary nor profitable to explore those questions. I therefore decline Mr Newman's invitation to articulate some new principle or approach to the grant of injunctions in a case of this kind.

It is sufficient, in the circumstances of this case, to have regard (as indeed the judge did) to the question of the degree of danger to the appellant and his family which would result if the respondents acted so as to breach the confidentiality upon which he relies.

Finally, Mr Browne Q.C. has argued that, in the event of the appeal being allowed, the wording of the Order originally granted by Poole J was too wide, to the extent that it amounted to an unrestricted embargo upon revealing the identity of the appellant, as opposed to prejudicing the "new" identity assumed by him in his new location.

It seems to me that the necessity for `tinkering' with the Order of Poole J would be avoided if this court were to grant an injunction preventing the showing of the film until trial of the action or further Order.

Mr Browne Q.C. made clear that the respondents might wish to consider further alteration to the film so as to render it unobjectionable in terms of increased risk to the appellant and his family. In that regard, they will of course, be at liberty to apply to the court in respect of any intended transmission.

Subject to further argument as to the appropriate form of order, I would allow the appeal.

LORD JUSTICE SCHIEMANN: I agree.

LADY JUSTICE BUTLER-SLOSS: I also agree.