Stephen Gentle, Simmons & Simmons LLP
This is an extract from the third edition of GIR's The Practitioner’s Guide to Global Investigations. The whole publication is available here.
37.1 Overview: general principles
37.1.1 The impact of publicity
Publicity in connection with investigations or proceedings is generally unwelcome for the corporation involved – there may be reputational implications, the company’s share price and market share may be affected, relationships with any authorities investigating may be harmed, and indeed the interest of additional authorities may be piqued. In addition, there may be serious consequences if publicity damages the investigative or trial process or breaches legal or professional obligations. Accordingly, it is important for corporations to understand the legal contexts for publicity: the principle of open justice, the extent to which legislation imposes restrictions on information relevant to investigations and proceedings entering into, and circulating in, the public domain, and the mechanisms available to allow or prevent information becoming public. There may also be occasions when corporations wish to explore whether there may be benefits from publicity. This chapter explores these areas with particular reference to media reporting of investigations and proceedings conducted by public authorities.
37.1.2 The principle of open justice
The openness of judicial proceedings is a constitutional principle long recognised by the common law, now supplemented by the European Convention on Human Rights (ECHR). Article 6(1) protects the right of a defendant to a public hearing, although that right is not absolute and is subject to the court’s discretion to exclude press and public from proceedings in the interests of justice. This transparency imperative applies to pretrial hearings as well as the trial. Alongside Article 6, Article 10 of the ECHR protects the freedom of expression and information although this right too is qualified in certain circumstances.
The right to a public hearing means that not only what is said in court may be reported but also those with a legitimate interest in the proceedings (particularly the press) may have access to material supplied to a judge or referred to in open court but not made public. The court has noted that the purpose of the ‘“open justice” principle . . . is to enable the public to understand and scrutinise the justice system of which the courts are the administrators’. The Court of Appeal held that while there is no automatic right to have access to the material, ‘the default position should be that access should be permitted on the open justice principle;’ overall, ‘the court has to carry out a proportionality exercise which will be fact-specific.’
The jurisprudence of the European Court of Human Rights has stated that ensuring the transparency of the administration of justice helps to achieve a fair trial: ‘By rendering the administration of justice transparent, publicity contributes to the achievement of the aim of Article 6(1), namely a fair trial, the guarantee of which is one of the principles of any democratic society’.
Article 6 has also been held to apply to pretrial investigations by public authorities. However, as we explain below, domestic law and practice would generally prevent any significant publicity at this early stage of the criminal process.
The principle of open justice has also been incorporated into Part 6 of the Criminal Procedure Rules (CrimPR). The rules are comprehensive in their treatment of the principle and should be the first port of call for anyone approaching the issue of publicity and reporting, and how the principle is applied in practice. Reference is made there to the importance of dealing with criminal cases in public before going on to describe the circumstances and procedure where restrictions on public proceedings can be imposed. The overriding objective of the CrimPR is that all criminal cases are dealt with ‘justly’ and that transparency is a key component of that objective.
The architecture of the principle of open justice is completed by 6B of the Criminal Practice Directions 2015 (as amended) where reference is made to the joint publication, Reporting Restrictions in the Criminal Courts issued by the Judicial College, the Newspaper Society, the Society of Editors and the Media Lawyers Association. Particular emphasis is given to the need to ensure that any restrictions are proportionate and necessary to comply with Article 10 of the ECHR.
37.2 Publicity and investigations
37.2.1 Restrictions on disclosure of information: the pre-charge position
There are a number of restrictions on the disclosure of information at the stage where law enforcement authorities are carrying out an investigation – whether that is to the media or generally. These will include legal restrictions imposed where money laundering disclosures have been made, where legal privilege applies, complying with conditions imposed by the authorities and complying with duties of confidentiality that form part of employment contracts or settlement agreements. These restrictions will generally continue if criminal proceedings are commenced.
220.127.116.11 Money laundering
For entities and individuals in the ‘regulated sector’, care must be taken to avoid making any comments or statements publicly that a money laundering disclosure has been made where, as a result, an investigation may be prejudiced, thereby committing a ‘tipping off’ offence. For those not in the regulated sector, an offence of prejudicing an investigation will apply if, in summary, a person makes a disclosure he or she knows or suspects might prejudice a money laundering, civil recovery or confiscation investigation.
18.104.22.168 Perverting the course of justice
Staying with the criminal law implications of making information public in the course of an investigation, a common law offence of perverting the course of justice would apply if making information public tended to pervert the course of justice and the defendant intended the disclosure to have that effect. This is a high bar. However, although a prosecution may be difficult to bring, this does not, of course, prevent an unwelcome and damaging investigation taking place should a law enforcement authority suspect an offence has taken place. The reference by the Serious Fraud Office (SFO) in guidance to an offence being committed by ‘disrupting’ criminal investigations by improper disclosure of information is a not overly oblique reference to the risk of publicity straying into criminality.
22.214.171.124 The SFO approach to confidentiality
Of more practical significance is the approach adopted by the SFO to confidentiality of its investigations and, more particularly, the material disclosed to suspects and their lawyers as pre-interview disclosure. This has proved a contentious area. The SFO has now published guidance on the process of requesting and handling interviews under section 2 of the Criminal Justice Act 1987. The guidance ‘requests’ interviewees do not ‘disclose anything said or seen in the interview to anyone except the interviewee’s lawyer as to do so could disrupt the investigation. It should be noted that disrupting a criminal investigation may in certain circumstances amount to a crime.’ In addition, the SFO guidance seeks to place constraints on those representing subjects of section 2 interviews. These constraints include requirements to provide professional undertakings not to copy or disseminate material. The robust stance of the SFO in this area causes some contention, given the professional and legal obligations already imposed on defence lawyers but it is likely that the new approach will become the default position for the SFO, although modifications are also likely in specific cases through discussions between defence representatives and the assigned case controller. However, modifications in the approach can, on occasion, be negotiated through discussions between defence representatives and the assigned case controller.
126.96.36.199 The Financial Conduct Authority (FCA) approach to confidentiality
Paragraph 6.1 of the FCA’s Enforcement Guide states that ‘the FCA will not normally make public the fact that it is or is not investigating a particular matter, or any findings or conclusions of an investigation’ save in ‘exceptional circumstances’. Those circumstances are set out in paragraphs 6.2 and include where the FCA considers that a public announcement is required to maintain public confidence in the financial system, to deal with speculation or rumour, to protect consumers or investors or to help the investigation itself by, for example, bringing forward witnesses. The categories are perhaps too wide to be considered ‘exceptional’ and provide the FCA with a significant degree of discretion in whether to publicise an investigation.
The provisions of the Enforcement Guide are supported by section 348 of the Financial Services and Markets Act 2000 (FSMA), which prevents the disclosure of ‘confidential information’ by the FCA, the Prudential Regulation Authority (PRA) or any person who obtained information from either agency unless consent is obtained from the person the FCA or the PRA obtained the information from or the person the information relates to.
Two statutory exceptions to section 348 are set out in section 349 of FSMA. The first allows disclosure of confidential information to facilitate the carrying out of a public function and the second relates to disclosure permitted by HM Treasury regulations – in particular, FSMA (Disclosure of Confidential Information) Regulations 2001. The exceptions, in practice, are extensive and would allow, for example, disclosure of information for the purposes of civil, criminal or disciplinary action.
37.2.2 Internal investigations
Before discussing the question of publicity once criminal proceedings are under way, it is worth noting the position as regards internal investigations where no external law enforcement is involved. Here, the regime is governed by the civil law. For example, the confidentiality of internal investigation reports might be protected by contractual obligations between employer and employee, and leaks may be dealt with through injunctive orders in the civil courts.
37.3 Publicity and criminal proceedings
The reporting restrictions discussed in this chapter fall into two categories. Those where there is a derogation from the principle of open justice and those where legislation imposes reporting restrictions that the court may then vary or remove.
37.3.1 Derogation from the principle of open justice – reporting restrictions
There are limited restrictions on the principle of open justice once proceedings are instituted. Reporting and the restrictions on reporting of public criminal proceedings (including pretrial hearings) are primarily governed by the broad framework of the Contempt of Court Act 1981 (CCA81), which is supplemented by other legislation dealing with restrictions on publicity in specific aspects of criminal proceedings. This legislation includes the Criminal Procedure and Investigations Act 1996 (CPIA96), the Serious Organised Crime and Police Act 2005 (SOCPA05), the Crime and Disorder Act 1998 (CDA98) and the Criminal Justice Act 2003 (CJA03).
188.8.131.52 The ‘strict liability rule’
Section 1 of the CCA81 states that: ‘conduct may be treated as a contempt of court as tending to interfere with the course of justice regardless of intent to do so’ – the strict liability rule. However, the Act goes on to restrict the application of the rule by stating that it will only apply to active proceedings where the relevant ‘publication’ (widely defined) has been ‘addressed to the public at large or any section of the public’ and that ‘creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced.’ Crucially, section 4 of the CCA81 states that a person is not guilty of contempt under section 1 ‘in respect of a fair and accurate report of legal proceedings held in public published contemporaneously and in good faith.’
184.108.40.206 Section 4(2) of the CCA81
Notwithstanding the principle of open justice, the CCA81 sets out certain statutory derogations that will be applied where necessary and proportionate to the overriding requirement to ensure the fairness of the process. Section 4(2) of the CCA81 allows the court to impose an order that the publication of a report of public proceedings should be postponed where necessary to avoid a substantial risk of prejudice to the administration of justice.
Situations where a postponement may be necessary include those where there are further or imminent proceedings or where there is a ‘trial within a trial’, for example interlocutory proceedings dealing with the same or similar facts that may ultimately form part of a trial.
There is no express statutory provision as to who may make representations in respect of the making or continuance of an order and it has been recognised that the press may make such representations. Indeed, there are examples of journalists making oral submissions to the court when a judge indicates that he or she is minded to make an order, although it is more common for a separate hearing to be listed and media organisations to be represented by counsel. This is in accordance with the recommendation in the publication by the Judicial College, Reporting Restrictions in the Criminal Courts.
220.127.116.11 Section 11 of the CCA81
Section 4(2) of the CCA81, imposes a postponement of reporting of proceedings. Section 11 is more draconian, and in any case where a court (having power to do so) allows a name or other matter to be withheld from the public, it allows a court to give ‘such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purpose for which it was so withheld,’ which in the appropriate circumstances may amount to a permanent ban on the reporting of ‘a name or other matter’. Section 11 does not itself provide a power to ‘withhold a name or other matter’, rather it builds on the common law jurisdiction of the court and in doing so introduces a statutory power to give directions to avoid any uncertainty among the media and others as to what may be published.
18.104.22.168 Derogatory remarks in mitigation
Sections 58 to 60 of the CPIA96 gives the courts power to postpone the reporting of derogatory remarks made in mitigation for a defendant who has been found guilty after a trial or following a plea. The court must have substantial grounds for believing that the assertion is derogatory and false or that the facts asserted are irrelevant to the sentence. The statutory restriction is supplemented by rules of professional conduct. In circumstances where a jury has found a defendant guilty, mitigation that seeks to, for example, traduce the reputation of a victim or reopen the facts of the case would not be allowed. However, where a defendant has pleaded guilty and the facts have not been aired, a judge’s discretion is more difficult to apply in the absence of a clear basis of plea.
22.214.171.124 Co-operating defendants
Section 73 of SOCPA05 provides the statutory framework for defendants who plead guilty and, pursuant to a written agreement with the prosecution, assist or offer to assist that prosecution. Section 74 of SOCPA05 allows a prosecutor, in certain circumstances, to refer the case back to the sentencing court to review the sentence. Section 75 of SOCPA05 allows the court to exclude individuals from the review proceedings, other than legal representatives or those directly involved. The courts have noted that this derogation from the principle of open justice, with particular reference to the desirability that those being sentenced are sentenced publicly, should be rarely used and efforts made to adopt proportionate procedures to allow reporting but to protect, where appropriate, the identities of those who have assisted the prosecution – competing ECHR Article 2 (right to life), Article 6 and Article 10 rights will all be in issue.
37.3.2 Statutory reporting restrictions the court may vary or remove
The purpose of the reporting restrictions described below is to preserve the integrity of and prevent prejudice to the trial process.
126.96.36.199 Preparatory hearings
SFO cases of serious or complex fraud and other complex cases may be the subject of preparatory hearings in the Crown Court. The purpose of the preparatory hearing, to which sections 7 to 10 of the Criminal Justice Act 1987 (CJA87) apply (i.e., SFO prosecutions), or other cases of complexity to which sections 28 to 38 of the CPIA96 apply, is to identify relevant issues, assist in the management of the trial and consider legal points such as joinder or severance.
Section 11 of the CJA87 and section 37 of the CPIA96 automatically restrict the reporting of preparatory hearings subject to a judge’s discretion to not apply the restrictions or apply them to a specified extent. Should a judge make an order that allows reporting, a defendant may make representations and a judge may only then make an order if satisfied it is in the interests of justice. If the order is made, it shall not apply to the extent that a report deals with any objection or representation.
188.8.131.52 Allocation and transfer of cases from magistrates’ court to Crown Court
Section 51 of the CDA98 deals with the procedure for allocation and sending of cases from a magistrates’ court to the Crown Court. Section 52A prohibits the reporting of allocation or sending proceedings subject to the magistrates’ discretion to disapply the prohibition. There is, however, certain information that may be reported without falling foul of the legislation, including the names, address and occupation of the accused and the offence or offences (or a summary) with which the accused is charged. An accused may object to an order disapplying the prohibition and in those circumstances the magistrates may only prohibit reporting if it is in the interests of justice and after having heard representations by the accused. The reporting restrictions imposed by section 52A are intended to protect the defendant and, generally, a magistrates’ court will only remove them on an application by a defendant.
184.108.40.206 Applications for dismissal
A defendant may make an application for dismissal of the charges in indictable-only cases sent to the Crown Court. The relevant provisions are found in paragraph 2 of schedule 3 of the CDA98. Automatic reporting restrictions apply under paragraph 3 of schedule 3 of the CDA98 in relation to unsuccessful applications, subject to a defendant’s right to request their removal. A judge may do so if he or she believes it is in the interests of justice.
220.127.116.11 Pretrial binding rulings in the Crown Court
Section 40 of the CPIA96 empowers the court to make pretrial rulings on any question as to the admissibility of evidence or any other question of law relating to the case. Section 41 of the CPIA96 prohibits the reporting of any pretrial ruling under section 40 or proceedings for such a ruling. In addition, there can be no report made of the variation or discharge of an order or proceedings applying for a variation or discharge.
Under section 41(3), a judge may disapply the prohibition on reporting, in whole or in part, but an accused may object to the judge doing so and in those circumstances a judge should only lift the prohibition after hearing representations and on being satisfied it is in the interests of justice for an order allowing reporting to be made.
18.104.22.168 Deferred prosecution agreements (DPAs)
Schedule 17 of the Crime and Courts Act 2013 sets out the regime for deferred prosecution agreements. Paragraph 12 of Schedule 17 empowers the court to postpone details of the DPA ‘for such period as the court considers necessary if it appears to the court that postponement is necessary for avoiding a substantial risk of prejudice to the administration of justice in any legal proceedings.’ DPAs are a recent addition to the criminal justice system in the United Kingdom, and as of August 2018 there had been only four such agreements in 2016. Paragraph 12 was invoked by the court to protect the integrity of ongoing legal proceedings in the second of these DPAs, entered into between the SFO and an unnamed UK company.
22.214.171.124 Prosecution appeals
Part 9 of the CJA03 provides the prosecution the rights of appeal, the most significant of which is with a general right of appeal against a ruling of a judge in relation to a trial on indictment where the ruling either terminates the proceedings or which excludes evidence so that the prosecution case is significantly undermined. In these circumstances, no report of anything done in relation to the appeal may be made, again subject to the judge’s discretion to disapply the prohibition or disapply it in part. Where a defendant appeals against any disapplication, the judge may only maintain it where it is in the interests of justice.
126.96.36.199 Appeals against derogations from open justice
Section 159 of the Criminal Justice Act 1988 sets out the right of an aggrieved person to appeal to the Court of Appeal orders under section 4 or 11 of the CCA81 or section 58 of the CPIA in relation to trials on indictment. It also sets out the more extensive right to appeal any order that ‘restricts the access of the public to the whole or any part of any trial on indictment or to any proceedings ancillary to such a trial’ as well as any order restricting the publication of any report of the whole or any part of a trial on indictment or any such ancillary proceedings.
Part 69 of the CrimPR sets out the procedure for appeal.
In relation to each of the provisions under section 11 of the CJA87, sections 37 and 41 of the CPIA96, the CDA98 and Part 9 of the CJA03 an offence, punishable by a fine, is committed if reports are published in breach of those respective sections. Proceedings may only be instituted with the consent of the Attorney General. Contempt of court under the CCA81 may be punished in the Crown Court by imprisonment of up to two years and a fine.
37.5 Hearings in private
The court retains an inherent jurisdiction to sit in private if the administration of justice requires it. As described by Earl Loreburn in Scott v. Scott: ‘in all cases where the public has been excluded . . . the underlying principle . . . is that the administration of justice would be rendered impracticable by their presence’. Part 6 of the CrimPR sets out in great detail how applications may be made. The authorities contain many comments by senior judges noting that extreme caution should be exercised by the court in excluding the public from proceedings and any application must start from the ‘fundamental presumption in favour of open justice’.
It is not therefore surprising that applications for hearings in private on the basis of, for example, financial damage or damage to reputation or goodwill that resulted from the institution of court proceedings concerning a person’s business did not provide sufficient grounds entitling a court to restrict or prevent press reporting.
37.6 Trial in private
For a trial to be held in private is almost unprecedented, other than in cases where national security issues are said to arise. A recent judgment of the Court of Appeal emphasised the exceptional nature of trials being held in private. However, the court dismissed an appeal from media organisations against continuing reporting restrictions that precluded the reporting of ‘the bulk’ of the trial to which accredited journalists had been admitted but that they were precluded from reporting. In this case, the only parts of the trial that were publicly reported were the swearing in of the jury, the reading of charges, a part of the judge’s introductory remarks to the jury, a part of the prosecution opening, the verdicts and, if convictions resulted, sentences.
37.7 Public relations, media and social media
37.7.1 Media statements by a corporation
Any public statement by a corporation in relation to an investigation or trial in which the corporation may have an interest, either as a suspect, witness or victim, should be approached with great caution. The temptation for a corporation to defend itself in the media if it is under investigation is significant, but the wisest course is generally not to comment. In circumstances where the corporation may face years of investigation and may ultimately admit wrongdoing, precipitate comment, particularly at the early stages of an investigation, may return to haunt even the most sophisticated corporation. The risks of making a statement include prejudicing a trial and potentially being in contempt and, in an extreme case, running a risk of perverting the course of justice. There are also risks of defamation. Public statements will also sometimes strain relations with law enforcement authorities where, even if the corporation is defending its position robustly, constructive relations are generally to be preferred. By way of example of the latter, a statement to the market, by the Sweett Group announced through the London Stock Exchange’s Regulatory News Service, that it was co-operating with the SFO prompted a rebuttal by the SFO, causing significant damage to the company’s relations with the SFO.
37.7.2 Consultation of public relations firms for internal investigations
It would be usual in most serious investigations or prosecutions for a corporation to engage PR consultants, who may advise on corporate communications. If a corporation does so, it should consult those firms which have experience of criminal investigations and trials and bear in mind that communications with PR consultants are very unlikely to be privileged under English law and potentially disclosable should powers of compulsion or production be used by law enforcement agencies. In addition, they may be disclosable in any parallel or subsequent civil proceedings.
37.7.3 The risks and rewards of publicity
Tactical media coverage during an investigation or trial may relieve negative public impressions of a corporation or individual and, perhaps, alleviate pressure on a law enforcement agency to bring charges. The media engagement may include unattributable briefings that find their way into media reports, casting a different light on an investigation.
A more extreme approach is to commence litigation. On occasion, a corporation may believe it is appropriate for a corporation to litigate against what it may see as unfounded suspicions. Successful litigation (or even successful interlocutory proceedings in what is often a lengthy process) may undermine the substance of allegations and expose weaknesses in actual or potential prosecution witness evidence. Such an approach must, however, be carefully considered for the reasons noted above.
Finally, following an acquittal or the dropping of an investigation, media coverage may assist in restoring damaged reputations.
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