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

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 Attorney-General 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 Attorney-General 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 Attorney-General 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 Attorney-General 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 Attorney-General. 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 Attorney-General.

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-a-vis 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 cross-examination 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.