The Shipman Inquiry - Decision on Application by Cable News Network (CNN)

Decision on Application by Cable News Network (CNN)
25 October 2001

Introduction

On 11th October 2001, I heard an application by Mr Geoffrey Robertson QC on behalf of Cable News Network (CNN) for permission to film and broadcast the public hearings of the Inquiry. CNN is an international news network.

The Inquiry has been set up under the provisions of the Tribunals of Inquiry (Evidence) Act 1921 to enquire into the unlawful activities of Harold Fredrick Shipman and the relevant statutory and regulatory systems which failed to detect those activities. The Inquiry hearings are held in the Council Chamber at Manchester Town Hall. At present, voice-activated cameras are used to project images of the person speaking on to one large screen in the chamber. Three other screens are used to display documents which are being considered by the Inquiry. Any document which has been scanned into the database can be projected onto the screens. The effect is that everyone in the chamber has a good view of the faces and can read the documents. These provisions greatly enhance the public's ability to understand and follow the proceedings. Sound and vision signals from the cameras and display system are also sent, by an ISDN line, to a room in the Public Library at Hyde, where television screens are installed. This is to provide an extension of the hearing chamber for the convenience of people from Hyde. Although this facility has been provided mainly for the benefit of relatives of Shipman's former patients, the room is open to any member of the public or media. The proceedings are also relayed by an ISDN line to the Media Annex and Management Office at the Town Hall and to the Inquiry offices at Gateway House for the benefit of the Inquiry team. No actual film is made of the proceedings. The system is a direct relay in real time. Once the images have disappeared from the screen, they cannot be replayed. A permanent record of the words spoken is made by means of a Livenote transcript. The voices of the witnesses are recorded on tape but only for the purpose of ensuring the accuracy of the transcript.

Within about 4 hours of the end of the hearing, the day's transcript is posted on the Inquiry website. The public also has access through the website to a very large number of documents. These include but are not limited to the documents referred to during the hearing. All the documents which the Inquiry regards as being relevant to the issues are scanned into the system and posted on the website. Many of the deaths which the Inquiry is considering in Phase 1 will not be the subject of an oral hearing but all the materials are put on the website. The website is widely used and reaches a large number of people. Those who do not have access to the internet are able to use the Inquiry's IT library, at Manchester Town Hall, with assistance if necessary.

CNN seeks permission to take a 'feed' from the cameras already in use and keep a sound and visual record of the proceedings for its own purposes. Alternatively, it seeks to install its own cameras in the hearing chamber at Manchester Town Hall. It seeks permission 'to broadcast all or any part of the proceedings of the Inquiry in news and other broadcasts, programmes and reports of topical or other interest to the public'. In other words, it seeks the right to use a recording of any or all of the proceedings in any type of broadcast at any time in the future. CNN says that the Inquiry is a matter of great public interest and importance and its intention is to provide extensive coverage on its news programmes.

Although the application was couched in the form of a request for permission, CNN asserts a right to film and broadcast the Inquiry proceedings. In particular it asserts a right by virtue of Article 10 of the European Convention on Human Rights (the Convention).

CNN's application was supported in part by the Tameside Families' Support Group. It was opposed by the West Pennine Health Authority, the Greater Manchester Police and several individuals who have an interest in the Inquiry, most of whom will be expected to give evidence in Phase 2. Because the application raised an issue of general importance to all public inquiries, I permitted the Attorney General to appear by counsel. His representations were limited to the points of principle arising, particularly under Article 10(1) of the Convention.

History

This is not the first application I have received for broadcasting rights of the Inquiry proceedings. In March 2001, shortly after the Inquiry had begun its investigative work, I received letters from the BBC, ITN and Dennis Woolf Productions Ltd (a company with an interest in making documentary television programmes on legal topics) seeking the right to film and broadcast the proceedings. I decided to refuse as it seemed to me that exposure to the additional publicity which would be caused by broadcasting would give rise to an unacceptable degree of additional distress for the relatives of those of Shipman's former patients whose deaths were under investigation.

On 10th May, I allowed press and television cameras to be used at a media briefing held in conjunction with the opening meeting. At the actual public meeting, which was to be attended by a large number of bereaved relatives, I did not allow filming or photographs. I allowed 'scene-setting' photographs and film of the hearing chamber to be taken shortly before the first public hearing. I also allowed the present application to be filmed and recorded.

Shortly before the Inquiry's opening meeting on 10th May, Mr Dennis Woolf of Dennis Woolf Productions Ltd asked me to give full reasons for my refusal. By this time, I had decided that the Inquiry should take place in three phases and I knew that most of the relatives, on whose behalf I had been concerned, would probably give their evidence in Phase 1. I realised that considerations different from those on which I had based my earlier decision might arise in Phases 2 and 3. I decided to consult those affected and invited representations. Broadly speaking, the result was that those who were to give evidence in Phase 1 invited me not to grant permission for that phase but to grant permission to broadcast the remainder of the Inquiry. Those who were to give evidence in Phases 2 or 3 invited me not to allow broadcasting at all. I considered the representations and published my decision, with reasons, on 11th June. I shall not rehearse those reasons here. Suffice it to say that I decided not to allow broadcasting of Phases 1 or 2 and said that I would consider Phase 3 nearer the time if the broadcasters wished to renew their application. Of the applicants, only Mr Woolf sought to suggest that the Human Rights Act 1998 had any bearing on my decision. The point was not argued in detail and I dealt with that aspect of his application very briefly, saying that I did not think that Article 10(1) was relevant.

Phase 1 of the hearings began on 20th June and continued until 24th July, when they were adjourned until 8th October. On 27th July, the Inquiry received the present application. As CNN wished to be heard by counsel, I set aside a day in the first week of the resumed hearings. All interested parties were invited to submit skeleton arguments and evidence. Because I thought it inappropriate that counsel to the Inquiry should be involved in the application, I asked Mr Palin, the solicitor to the Inquiry, to instruct Mr David Pannick QC to provide an independent opinion on the legal issues. I also asked Mr Palin to collate the anecdotal experience of those members of the Inquiry team who had had contact with witnesses for the purpose of arranging their attendance to give evidence. I wanted to know the actual responses of witnesses to the prospect of the public exposure inherent in the Inquiry process and the additional exposure that would be occasioned by broadcasting. All this material was circulated to other interested parties and scanned into the Inquiry's document system for publication on the website. This was to be a completely new hearing, rather than a review of my earlier decision.

CNN advanced their argument under three heads.

The Tribunals of Inquiry (Evidence) Act 1921.

The Inquiry was set up under the Tribunals of Inquiry (Evidence) Act 1921 (the 1921 Act). It is common ground that it is dealing with matters of great public importance and interest. Section 2(a) of the 1921 Act provides that the Inquiry must 'not refuse to allow the public or any portion of the public to be present at any of the proceedings of the tribunal unless in the opinion of the tribunal it is in the public interest expedient so to do for reasons connected with the subject matter of the inquiry or the nature of the evidence to be given'.

Subject to that and to the requirement that the decisions must be reasonable and otherwise lawful, Mr Robertson accepted that I, as the chairman of a public inquiry, have an inherent right to govern its proceedings. He submitted that under Section 3 of the Human Rights Act, 1998, I am obliged, so far as is possible, to construe the provisions of the 1921 Act in such as way as to be compatible with the Convention. I can say at once that I accept that submission.

As Mr Robertson observed, the 1921 Act was enacted at a time when broadcasting was in its infancy. He submitted that I should now construe its provisions flexibly so as to bring its operation into the modern era. I should do this by recognising that the television journalist, with his camera, is now a member of the public just as the newspaper journalist is, with his pen and notebook. Both should be allowed access to the inquiry proceedings and should be denied access only if, in my opinion, it is in the public interest expedient to do so for reasons connected with the subject matter of the Inquiry or the nature of the evidence to be given. There is therefore, submitted Mr Robertson, a presumptive right for the television journalist to bring his camera into the hearing chamber and to film the proceedings. The fact that witnesses might be distressed by the publicity to which they were to be exposed or the additional publicity which broadcasting would entail is not, he submitted, a potentially valid reason for excluding the public or a portion of it, namely the television journalist with his camera.

It seems to me that the arrangements which the Inquiry has made to accommodate the public and media go well beyond that which are required by the ordinary and natural meaning of the words of the provision of the 1921 Act. Only if the Human Rights Act 1998 (HRA 1998) requires me to extend the meaning of the words to ensure compliance with the Convention will the Inquiry be required to do more than is presently being done. I shall defer that question until I consider the requirements of the Convention.

Common Law.

It is common ground that Section 41 of the Administration of Justice Act 1925 (the 1925 Act), which prohibits the taking of photographs in any courtroom does not apply to the proceedings of the Inquiry, as the Inquiry hearing chamber is not a courtroom. Mr Robertson submitted that before the 1925 Act, the common law permitted the taking of photographs in court and that the common law position still applies in respect of an inquiry.

For the sake of completeness, it should be mentioned that although the 1925 Act does not apply to inquiry proceedings, the Contempt of Court Act 1981 does apply to inquiries under the 1921 Act, (see section 20). Section 9 of the 1981 Act provides that it is a contempt of court to use a machine in court for recording sound, except with the leave of the court. The court may impose conditions on the use of a recording, if leave is given. It is also a contempt to publish such a recording or to use it in contravention of the conditions of leave given. As CNN wants a soundtrack as well as a visual record, the pre-HRA 1998 position was not entirely governed by the common law.

Mr Robertson cited the well-known authorities that establish the principle of open justice. I do not intend to burden this decision with any citation from those cases. Suffice it to say that I recognise the importance of open justice. Arguably, I am not 'dispensing justice' but even so, I accept the validity and relevance of the principle that lies behind the cases cited. Mr Robertson accepted, as he must, that the public is free to attend all the hearings of this Inquiry. But, he submitted it is not possible for people who have to go to work or who live at some distance from Manchester Town Hall to attend every day and follow the proceedings properly. He quoted Lord Halsbury's dictum, 'Every Court in the land is open to every subject of the King'. He submitted that in order to bring that principle into the 21st century, there must be television coverage of the proceedings, so that the public can see not only a report of the proceedings but see and hear the proceedings themselves. This should include the image of the face and the sound of the voice of every person who takes part.

In my view, the provisions made by the Inquiry more than satisfy the requirements of open justice, as understood in this country prior to the implementation of HRA 1998. Only if that Act requires me to extend those requirements in order to ensure compliance with the Convention need I accede to the present application.

I do not accept the broad proposition that the common law permits the taking of photographs in public inquiries. There is a well-established practice that photographs may not be taken without the permission of the inquiry. The fact that photographs might have been taken in court before legislation was passed to prevent it does not give rise to a common law rule permitting photography in all places not covered by the 1925 Act.

Freedom of Expression under the common law of England and Wales and under the Convention.

Mr Robertson referred me to the speech of Lord Steyn in R.v Secretary of State for the Home Department ex parte Simms [2000] 2 AC 115 at 127, where he set out the several reasons why freedom of expression is of paramount importance in a free society. The importance of freedom of expression is accepted on all sides in this application and by me. I note also that at page 126 Lord Steyn referred to Attorney General v Guardian Newspapers Ltd No. 2 [1990] 1 AC 109 where Lord Goff of Chieveley had expressed the opinion that 'in the field of freedom of speech there was in principle no difference between English law on the subject and Article 10 of the Convention'. That is the present position under English law.

Article 10 of the Convention protects the right of 'freedom of expression'. It provides:
1. 'Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.'
I accept that a decision made by the chairman of a public inquiry is a decision made by a public authority.

The first question under the Convention is whether Article 10(1) is engaged at all in the present situation. Mr Robertson argued that a refusal to allow CNN to film and broadcast the proceedings is an interference with CNN's right to receive and impart information. It is therefore a breach of CNN's Article 10(1) right. In essence CNN's application was not so much a request for permission to film and broadcast the proceedings as an assertion of its right to do so, subject only to any restriction I might impose on that right. To be lawful, any restriction must comply with all aspects of Article 10(2). It must be prescribed by law and it must be necessary in a democratic society for one or more of the listed objectives. The restriction imposed must also be a proportionate response to the importance of the objective to be achieved.

Mr Robertson referred me to a number of cases from the English courts and from the European Court of Human Rights, which recognise that freedom of expression is an essential foundation of a democratic society. I shall not cite from them as none of them is contentious and none of them deals with the essential question which arises in this application which is whether the principle of freedom of expression, either at common law or under the Convention, entitles a person (including a broadcaster) to have access to information which he does not already have and which the person with control of the information is not willing to give him. In argument, I suggested to Mr Robertson that the point I have to decide was virtually free of authority and he did not dissent. I shall come to the only authorities that are germane in due course.

Mr Robertson accepted that all the words spoken and documents examined in the Inquiry are made available to the public and to the media. Indeed that material is more readily and conveniently available than is usually the case in court proceedings. However, he submitted that the information presently made available for dissemination is incomplete in that the media are not allowed to obtain film of the proceedings or to broadcast that film. A film with soundtrack of the persons who speak is different information from a transcript of the words spoken. The sound of the voices and the expressions on the faces of the speakers are essential parts of the 'information' that is available in the chamber. He submitted that the complete information is already in the public domain and is already public property. Under the Convention, the media have a presumptive right to receive the full information and to impart it in any way they wish, subject only to restrictions that meet Article 10(2) criteria.

Mr Richard Lissack QC for the Tameside Families Support Group supported Mr Robertson's submission on this issue. In his skeleton argument, he submitted that Article 10 applied to the Inquiry proceedings but did not create a duty to allow broadcasting of its proceedings. He submitted that the only real question for determination was whether the restrictions I chose to impose satisfied the criteria of Article 10(2).

Mr Lissack wished to advance the Article 10(1) argument in two ways. First he submitted that there was a presumptive right for broadcasters to film and broadcast the proceedings, regardless of what arrangements, if any, had already been made to film the proceedings and transmit the film to a remote site. A refusal of broadcasting rights of a public event such as the proceedings of this Inquiry is an interference with freedom of expression, which is unlawful unless justified on Article 10(2) grounds. That is so, he submitted, simply because the full information is already in the public domain. Second, he submitted that because the proceedings were being filmed for relay to the Hyde Public Library, where any member of the public could attend, permission in principle had been given for broadcasting. The proceedings were already being broadcast. Any member of the public could go to Hyde Library to watch. So also could journalists. Any attempt to stop CNN from taking a feed and broadcasting the same material more widely would be an interference with Article 10 rights.

Mr David Pannick QC and Miss Jane Mulcahy took a similar view at paragraph 19 of their written opinion. They said:
' The refusal to allow CNN to broadcast the proceedings of the Inquiry is an interference with freedom of expression. (1) A court would accept that Article 10 does apply to decisions of the Inquiry, a public body for the purposes of judicial review, set up by the Secretary of State to investigate the circumstances of a large number of deaths, and therefore fulfilling functions of the State under Article 2 of the Convention'.
At paragraph 19(2), the opinion cited the case of Oberschlick v Austria (1991) 19 EHRR 389, where at paragraph 57, the Court said that Article 10 'protects not only the substance of the ideas and information expressed but also the form in which they are conveyed'.

At paragraph 19(3) of their opinion Mr Pannick and Miss Mulcahy said:

'Article 10 does not confer a right of access to information held by a public body, but it does prohibit a public body "from restricting a person from receiving information that others wish or may be willing to impart to him": Leander v Sweden (1987) 9 EHRR 433 at paragraph 74'.
Then they came to the nub of their opinion on this point:

'In the present case, we consider that a court would accept that that the Inquiry is not simply denying access to information in the form of television pictures, but is preventing the receipt of information by a particular means when the public has access to the information by other means. That is an interference with freedom of expression. We consider that the court would apply the basic principle, stated for example in Thorgeirson v Iceland [1992] 14 EHRR 843 865 paragraph 63 that it is incumbent on the press
"to impart information and ideas on matters of public interest. Not only does it have the task of imparting such information and ideas; the public also has the right to receive them".
Mr Pannick and Miss Mulcahy concluded this part of their opinion by saying that Article 10 applies in the present case and that if I were to prevent broadcasting of the Inquiry there would be an interference with freedom of expression. The important issue, they said, is whether any restrictions I impose are justified under Article 10(2).

Opposition to the submission that Article 10(1) is engaged came from Mr David Anderson QC for the Attorney General and Mr Gerard McDermott QC for the West Pennine Health Authority.

Mr Anderson submitted first that the point was of considerable general importance. If Article 10(1) created a presumptive right for broadcasters to film this Inquiry, it would follow that every public authority would be obliged to permit filming and broadcasting of its proceedings, unless exclusion could be justified under Article 10(2). This would be a surprising and burdensome result. He noted that it would follow that Section 41 of the Administration of Justice Act 1925, which prohibits photography in courts, would be at risk of incompatibility with the Convention. I observe that so would section 9 of the Contempt of Court Act 1981. I do not think Mr Anderson sought to suggest that these factors demonstrated that CNN's submission could not be right. As I said in the course of argument, the inconvenience of the effect of a provision can never be a justification for construing it so as to avoid that inconvenience.

Mr Anderson's main proposition was that CNN's application was for access to information to which it was not presently entitled. The right to disseminate that to which it had gained access is not in issue. The only issue is the right of access to the information, namely a full visual and sound record of the proceedings. Article 10(1) of the Convention does not govern rights of access to information. The Article is concerned with freedom of expression, not freedom of information. Where the Article speaks of a right to 'receive and impart information and ideas without interference' it is protecting the right of the person who wishes to impart that which he already has and the corresponding right of the person who wishes to receive that information to receive it. It does not create for the person who wishes to impart information to others a free-standing right to receive information, which he does not yet have. Nor does it create for a person who wishes to receive information a right to receive information unless the person who holds that information is willing to impart it to him.

I was referred again to the case of Leander v Sweden, which Mr Pannick had cited. That case concerned an application by Mr Leander for information held about him by the state, which the state regarded as confidential. The Court expounded the general principle that Article 10 does not provide a right of access to information held by a public body but prohibits a public body from restricting a person from receiving information that others wish or may be willing to impart to him. Mr Anderson submitted that Leander supports his proposition that Article 10 does not require me to give CNN access to a visual and sound record of the proceedings. He added that in the context of a public inquiry, it was not the wish or willingness of each individual witness or speaker to provide a visual and sound record which mattered, but my wish or willingness as Chairman. He submitted that I have an inherent right to govern the proceedings, within, of course, the limitations of the law. If I am not willing to allow CNN to receive the information they seek and am not otherwise obliged by law to give it to them, they cannot rely on the Convention to require me to give them access.

Mr Anderson referred me to Petition Number 2 of the British Broadcasting Corporation [2000] HRLR 423. I have also read Petition Number 1 reported in the Scots Law Times [2000] at page 845. These reports concerned applications for permission to take a feed, for the purposes of internet broadcasting, from a restricted television transmission of the Lockerbie trial, intended for the victims' families in the UK and USA. The trial was to take place in the Netherlands under Scottish law, before a panel of three High Court Judges. Representatives of the bereaved families wished to arrange for the families to watch the proceedings at remote sites in the UK and USA. The Lord Advocate, who is a member of the Scottish Executive, gave his blessing to the proposal and the issue was raised with the Presiding Judge, Lord Sutherland. He gave his permission, subject to strict controls, which were laid down in a protocol. Because of the time differences between Europe and the USA, it was proposed that film should be recorded on tape and sent by encrypted signal to the remote sites. Once the film had been shown to the relatives, the tapes were to be destroyed. Only family members were to be permitted access to the rooms where the film was to be shown. Court officials were to control access. Family members who were to give evidence were not allowed to see any film until they had testified. Journalists and representatives of the media were not allowed access to the remote sites, although they had the usual access to the courtroom. It was said that the Lord Advocate had had a hand in making the arrangements that restricted the right of access to the remote sites to close family members of deceased passengers.

Initially the BBC made an application for broadcasting rights to Lord Sutherland. The precise nature of the application is not entirely clear; nor are the reasons for which it failed. In any event, the BBC, supported by other broadcasters, then petitioned the High Court for permission to access the film to be shown at the remote sites and to broadcast it. The petitioners relied on Article 10 of the Convention, arguing that permission to broadcast had already been granted, in respect of the remote sites, and that the restrictions imposed by the Lord Advocate contravened Article 10. The petition was opposed by the Lord Advocate and on behalf of both accused. In opposition it was submitted that Article 10(1) was not engaged. There was no interference with the BBC's rights to receive and impart information. Comprehensive arrangements had been made for the media to cover the trial in the ordinary way. If that submission was rejected and Article 10(1) did apply, the restrictions imposed satisfied the tests under Article 10(2). In reply, the BBC stressed that they were not suggesting that every refusal to allow broadcasting of a trial amounted to an interference with their Article 10 right. It was only because permission to televise had already been granted and limitations had been placed on the class of persons entitled to benefit that there had been an unlawful interference with the Article 10 right. Lord Macfadyen refused the application, holding that the permission for transmission to the remote sites was wholly different from permission to broadcast. The remote sites were, in effect, an extension of the courtroom. Permission to broadcast had not been granted. As the case under Article 10 had been put in the limited way mentioned above, that finding effectively disposed of the point. However, Lord Macfadyen expressed the opinion that if, as he thought arguable, any refusal of broadcasting rights amounted to an interference with an Article 10 right, then in his view there were good reasons in the instant case for the restrictions imposed; the requirements of Article 10(2) were satisfied.

The BBC petitioned again, to a court of three judges seeking, inter alia, a review of Lord Macfadyen's decision and for permission to take a feed and broadcast the proceedings as earlier requested. The BBC argued the case as before, submitting that permission to film and broadcast had already been given and that the restrictions placed on the class of person entitled to receive the television signals was an interference with their Article 10(1) right. Their contention was that once the unlawful restrictions were removed, there would remain an unfettered right to broadcast the trial. The BBC did not argue, despite the encouragement from Lord Macfadyen, that any refusal of broadcasting rights was an interference with their freedom of expression, which had to be justified under Article 10(2). For the accused, it was argued that Article 10 did not apply at all. No restrictions were placed on the BBC which was free to disseminate its material in any way it wished. The same points were made as have been raised by Mr Anderson before me.

At page 436, Lord Kirkwood said that the BBC's main argument was misconceived for the reasons given by Lord Macfadyen. Lord Sutherland had never given permission in principle for the proceedings to be broadcast. He had given a restricted permission to relay film of the proceedings to the remote sites. The fundamental basis of the application had disappeared. There was no doubt that the court had the power to decide what, if any, television transmissions were to be permitted and, if they were, the conditions on which the permission was to be granted. Lord Kirkwood went on to consider the more general argument advanced on behalf of the accused. He referred to Leander and expressed the view that Article 10 did not entitle the BBC to use the television signals produced by the court cameras 'where there is every indication that those who will be producing the signals are not willing to allow the petitioners to make use of them'.

Lord Marnoch and Lord Kingarth concurred. Lord Marnoch said he had 'grave reservations as to whether Article 10 can have any application to an encrypted signal emanating from a third party's equipment to which the petitioners have no immediate right of access'.

Although the argument in that case was presented rather differently from the present case, the issues are very similar. Mr Anderson relied on the views expressed by Lord Kirkwood in support of his submission that Article 10 has no application to the present case.

Mr Anderson also drew attention to Article 6 of the Convention, which provides:
'In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order of national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice'.

Mr Anderson did not suggest that Article 6 is of direct application to the proceedings of the Inquiry. No person's civil rights or obligations are to be determined. Although in Phase 1, the extent of Shipman's criminal activities are to be investigated and, so far as possible, determined, I shall not determine a criminal charge against him, such as could result in any punishment. Phases 2 and 3 are plainly not caught by Article 6. Nonetheless, Mr Anderson submitted that Article 6 is relevant to the present application because it deals, in detail, with the public and press rights of access to courts. Article 6 is the only part of the Convention to deal with those rights. Thus, it is to Article 6, rather than Article 10, to which one must turn to discover the extent of the guaranteed rights of access to proceedings. Mr Anderson noted that there are many types of court proceeding that are not covered by Article 6. In those types of proceeding the Convention does not guarantee any right for the public or press to attend. He submitted that it cannot be rationally suggested that where Article 6 fails to guarantee a right of public access, a right to film and broadcast might be provided for the media under Article 10.

Mr Anderson also drew my attention to the nature of the considerations that can be properly taken into account by a court when deciding under Article 6 whether and how to restrict the right of access of the public or press to court proceedings. As he observed, these include considerations relating to the private life of the parties and the interests of justice. I had been concerned to notice that the list of permissible objectives for which the Article 10 right to freedom of expression can be curtailed contains nothing referable to the proper conduct of a trial or other proceeding such as an inquiry. I wondered whether that might indicate that Article 10 was not concerned with the extent to which a broadcasting company would have a right to film and broadcast court or inquiry proceedings. Mr Anderson submitted that it did so indicate.

Mr McDermott supported Mr Anderson's submissions. In addition he referred me to the case of Autronic AG v Switzerland (1990) 12 EHRR 485 in which the Swiss Post and Telecommunications Authority (PTT) had made reception of television programmes from a Soviet telecommunications satellite subject to the consent of the broadcasting state. Although the Soviet Government had not given their consent to reception of signals from the satellite outside its borders, it recognised that there was nothing it could do to prevent reception by anyone who had the necessary equipment. Autronic alleged that the Swiss PTT had violated its Article 10 right by imposing the requirement of Soviet consent. The Court of Human Rights held that the imposition of the condition of consent was an interference with Autronic's Article 10 right. Mr McDermott submitted that this case demonstrated the scope of Article 10 in so far as it entitled a person to receive 'information'. The Article guaranteed a person's right to receive what another wished to impart or what the other had already made available.

In reply, Mr Robertson relied on the opinion of Mr Pannick and Miss Mulcahy. He also sought to draw an analogy between an interference with the right to film and broadcast and a refusal of permission to a journalist that he should use pen and paper to takes notes of what was said in the hearing. He submitted that if the Inquiry were to prevent a journalist from making notes, there would be an interference with the right of freedom of expression. A refusal to allow filming is indistinguishable.

Conclusion on Article 10

It seems sensible that I should consider the arguments on the extent of the rights guaranteed by Article 10(1) before considering the facts on which any discretion falls to be exercised. If I decide that Article 10(1) is engaged and that a refusal to allow broadcasting would interfere with an Article 10 right unless justified, then I must consider my eventual decision within the restricted framework of Article 10(2). If I decide that Article 10 is not engaged, my consideration of the various factors to be taken into account and the exercise of my discretion are less circumscribed.

In my opinion, subject to restrictions which may be imposed if they satisfy Article 10(2), Article 10(1) guarantees freedom to disseminate information which is already in the possession or control of or accessible to the person or body whose rights are under consideration. It also guarantees that person's right to express his opinions in any way and through any medium, even if they are shocking and unacceptable to most members of society. It guarantees the right to receive information from those who are willing to impart it. However, in my view, Article 10(1) does not bear upon the right of access to information that another holds but has not made accessible and does not wish to impart. The case of Leander is the only authority that bears on the point. In Leander, the Court made a general statement that Article 10 guarantees the right to receive information which another is willing to impart. This statement was wider than was strictly necessary to cover the facts of the case. The Court could have dealt adequately with the case in hand by saying only that Article 10(1) does not guarantee a right of access to confidential information held by another. It chose to expound the principle more widely than was necessary. It did so, possibly intentionally, possibly by oversight.

I must therefore go back to the words of the Article itself. I note first the title of the Article, 'Freedom of Expression'. At first sight, that does not seem to indicate that the Article will have anything to do with a right of access to information. The first sentence states the principle: 'Everyone has the right of freedom of expression'. That is what this Article is all about. It seems to me that the second sentence must be read subject to the first. The second sentence says that the right (that is the right to freedom of expression) is to include freedom to hold opinions and to receive and impart information and ideas without interference by a public authority. Read as a whole, that sentence, referring back to the first sentence, as I have suggested, says nothing about a right of access to material not yet available to the person concerned. Mr Lissack read the second sentence as follows: 'This right shall include freedom to � receive �. information �. without interference by a public authority�.' Read in that way, without reference back to the first sentence, it is possible to mount an argument that Article 10 guarantees a free standing right to receive all information. But in my view, such is not the ordinary natural meaning of the words of the first two sentences taken together. On their ordinary natural meaning, the words of the Article provide a guarantee to disseminate freely all information and ideas the person has and opinions he holds and a corresponding right to receive from others the information ideas and opinions which they have made accessible or wish to disseminate. In my view therefore, the expression of principle by the Court in Leander properly conveyed the meaning of the words of the Article. It was wider than necessary for the facts of the case but I am satisfied that the Court did intend and was entitled to propound the wider principle.

I note that in the Lockerbie case, both Lord Kirkwood and Lord Marnoch expressed the view that Article 10 had no application to information which was not already available to the petitioners and which the person in possession or control did not wish to impart.

I am also fortified in the view that I have taken by the submission of Mr Anderson that it is Article 6 which provides such guarantees as are available for the rights of access to public proceedings. The Convention does not provide for freedom of access to information. The only provision to guarantee some rights to freedom of information is Article 6, which guarantees a right of access to some, but not all, types of court proceeding. It seems to me that if Article 6 does not apply, (as it does not here) then the Convention is silent on the right of access to information emanating from legal proceedings. This confirms my view that Article 10 deals only with information to which the person concerned already has access.

For those reasons, I am satisfied that Article 10 does not guarantee the right to receive information which is in the possession or control of one who is not willing to impart it. In so far as the Inquiry is in possession or control of the information under discussion, (to which question I will next turn) CNN must seek permission to receive it rather than assert a right to receive it.

The next question is whether the information with which we are concerned remains under the control of the Inquiry or is already in the public domain. If it has already been made available to the public or made accessible to CNN (for example in such as way as Autronic had access to the signals from the Soviet satellite), then I can see that a restriction on the way in which CNN is entitled to impart it would be an interference with its Article 10 right.

Before approaching this issue, it seems to me important to establish the distinction between 'information' and 'knowledge'. The two are not synonymous. To inform is to communicate knowledge. Information is the communication of knowledge. The difference is important when one considers what information is in the public domain. It is different from what knowledge is available to the public.

I start from the premise that a member of the media is not entitled at law to any more information than any other member of the public. If Mr Pannick's reference to the case of Thorgeirson v Iceland was intended to suggest that the media have special duties which entitle them to special privileges, I do not accept that. Although one can say that in general terms the media have a duty as 'watchdog' of the public interest, they are not obliged to report any matter which they do not wish to report. So far as television is concerned, I would accept that public service broadcasters have a general duty to report matters of public importance but for other organisations, commercial considerations must play a large part in the choice of coverage. No one has suggested that any media organisation is under a positive duty to report The Shipman Inquiry. In so far as any special provisions are made for the media at this or any other inquiry, they are made voluntarily in a spirit of goodwill, so as to enable the media to carry out their job more easily and to produce more accurate reports. As a matter of law, the media are entitled to no more and no less information than any member of the public.

To what information does the public have access in this Inquiry? Members of the public have the right to come into the hearing chamber or the Public Library at Hyde and listen to and watch the proceedings. Because of the document display system, that includes the ability to see all documents referred to. Any member of the public is permitted to take a written note of what is said or to note down their impressions of the participants. There is public access to the website. The media, including CNN, have access to all this information and can disseminate it without restriction. Nobody is at present allowed to bring a tape recorder into the chamber. Nobody is at present allowed to bring a still or film camera into the hearings, without my permission. On the occasions when cameras and tape recorders have been allowed, it has been fully recognised that they were used with my permission and not as of right.

CNN seeks either a feed from the Inquiry's cameras or the right to film the proceedings on its own cameras. It seems to me that no one can assert the right to a feed from the Inquiry's cameras. The signals from those cameras and sound recordings are not available to the public and there is no access to them without my permission. They are transmitted to Hyde Public Library and the Media Annex with my permission, so as to provide extensions of the hearing chamber. They are transmitted to Gateway House and the Management Office for the benefit of the Inquiry team. They are used within the hearing chamber only to provide an enhanced experience for the attending public. The public sees the product of the signals but does not have access to the signals themselves. If anyone is to have access to those signals, it must be with my permission and not as the result of the assertion of a right. That part of my decision is in accordance with the opinion of all the Scottish Judges in the Lockerbie case.

That leaves CNN's application to use its own cameras and recording equipment to obtain a full visual and sound record of the proceedings. It seeks the right to create a permanent sound and visual record of what is at present available to the public only as a transitory personal experience. It argues that because the public has the transient right to receive the sound and visual experience, it should also have the right to receive a permanent record. The basis for that argument is the assertion that the public already has access to the information sought. But in my view it does not. It has access to the various forms of information that I have listed and access to the knowledge that comes of receiving those various forms of information. But it does not have access to the information sought.

At the moment a full visual permanent record is not kept by the Inquiry and does not exist. Only written records are kept by the Inquiry and they are in the public domain anyway. A sound record is kept by Smith Bernal, who operate the Livenote system and who keep the tapes for their own purposes. The full permanent record sought is different information from the transitory experience that is available to the public. In my view it cannot be said that Article 10 guarantees a right to create information that does not yet exist. It protects the right to receive and disseminate information which exists.

A moment's consideration within the context of this case demonstrates the remarkable consequences which would flow if there were an Article 10 right to create a full sound and visual record. If CNN has the right, so would every member of the public be entitled, subject of course to any restrictions I could properly impose under Article 10(2). I could restrict one person to a different extent from another person but only for good reasons, which satisfied Article 10(2). I do not see how I could justify the refusal of a private citizen's right to have a full sound and visual record on the basis that a restriction was necessary in a democratic society for one of the objectives set out in Article 10(2) if it were not also necessary for the same reasons to restrict CNN's right. If anything, it might be more difficult to restrict an individual, who did not have a licence to broadcast than it would be to restrict CNN, if the objective to be attained was the protection of the rights or reputation of others. In practice, if I allow CNN an unrestricted right, I would have to allow everyone else a similar right. If everyone were to have the right to film and record the proceedings and many people chose to exercise it at the same time, chaos would ensue. The Inquiry would not be able to conduct its business.

It is no doubt for reasons of this kind that the rule has become established that courts and inquiries have an inherent right to govern their own proceedings. That right encompasses many matters such as setting the times of sittings and the right to direct in what part of the room the public sits. There is the right to turn away members of the public if there is insufficient room for all to be admitted. There is a discretion to allow the media to have a reserved area, so that they are guaranteed a number of seats. That is a matter of discretion not law. There is the right to control misbehaviour. If members of the public disrupt the proceedings by making a noise, they may be removed. If several people brought flashlight cameras into the chamber, the proceedings would be disrupted, as they would be by the presence of large numbers of television cameras and sound recorders. If there has to be some restriction on the use of television cameras in the interests of the proper conduct of the inquiry, that must be a matter of a discretionary permission, to be exercised by the Chairman. There cannot be a right to bring a camera or tape recorder into the chamber, subject only to restrictions which can be justified on one of the very limited bases within Article 10(2). As the Scottish judges said in the Lockerbie case, it is beyond doubt that the court has a discretion to control its own proceedings and to decide who can film and broadcast.

I accept that there is a right to film or photograph an event taking place in public. I am not convinced that it is a right which is guaranteed by Article 10. However, I am prepared to accept for the sake of the present argument that it is. If that right is guaranteed by Article 10, why does Article 10 not guarantee a right to film the Inquiry? If a television crew wishes to film a man who is addressing the crowd from a soap box at Speakers' Corner, there is nothing the man can do about it if he does not want to be filmed. (All he can do is to stop and go away, thereby losing his right to freedom of expression.) The television company is in the same position as Autronic. It has a right to film him even if he does not consent, because in practice he cannot prevent it. A police officer would not help him to prevent it, unless perhaps he thought that the filming would give rise to a breach of the peace. In the course of argument, I asked Mr Anderson why the proceedings of an Inquiry are different from an event taking place in a public street or park. His answer was that the difference lies in the Inquiry's inherent right to control its own proceedings. No one has any right to control the public event. I think he was right. A similar distinction can be drawn between an event taking place on the street and one which takes place inside, say, a football stadium, where an entrance fee is charged. The public has right of access, on payment of a fee, but does not have the right to film the match. Neither do the television companies, who often pay dearly for permission to film and broadcast such an event.

My conclusion is that Article 10 does not provide a right to film a public event if the person with lawful control of the event is not willing to allow it. This is a direct application of the principle in Leander. If no person has lawful control, then there is a right to film, because in practice there is nothing to prevent it: see Autronic. I could not possibly allow a general right to film, as the Inquiry could not function if I did.

Mr Robertson submitted that a refusal to allow a journalist to take a written note would be an interference with his right of freedom of expression and that the right to film is directly analogous to the right to make a note. Both are methods of making a permanent record of a transient event. Once made, the record can be disseminated to others by any means the holder chooses. I have been unable to discover any authority on whether there is a right to take a note of court proceedings. There is certainly a well-established practice that journalists may do so. In my experience, the only circumstances in which a member of the public is ever prevented from taking a note arise in a criminal trial, where it is thought that there might be an attempt to pervert the course of justice by passing a note to a witness outside court waiting to give evidence. Thus, I think that the court has a discretion to prevent note-taking if the interests of justice require it. However, for the sake of argument, I am prepared to accept that there is now an established common law right for any one to take a note of court or inquiry proceedings, subject to an exception 'if the interests of justice so require'. Whatever the rule, it must apply to the media and public alike. If there is such a right, denial of it would be unlawful according to the domestic law of England and Wales. That is not to say that the denial would necessarily be an interference with freedom of expression. Preventing a person from taking a note would not stop any person from telling others what he had seen and heard during the proceedings and what he thought about them. However, I do accept that it would be extremely inconvenient for a journalist if he were not allowed to take notes and it would make his professional duties very difficult. His note is an aide memoire to enable him to impart the information he has received more accurately and effectively than he otherwise could. To that extent, a denial of the right to take a note of proceedings could be described as an interference with his ability to impart information although not, I think, his right to do so. In any event, I think the rule allowing the taking of a note in court has developed because it has been perceived, by those exercising the inherent right to control the proceedings, that note taking is very useful and not disruptive. I think historically permission must have been required for the taking of notes in courts or inquiries, just as it is required now for filming. I think that the granting of permission to take notes was so regular that it became accepted and is now regarded as a right. We have not yet reached that stage with filming.

I answer Mr Robertson's point by saying that the taking of a note in court or inquiry proceedings is only a right to the extent that it is a well-established grant of permission. Denial of it is not an interference with freedom of expression under Article 10. There is, as yet, no well-established practice of granting permission to film inquiry proceedings.

I realise that in reaching the conclusion that Article 10(1) does not give CNN (or anyone) a presumptive right to receive a feed or to film the proceedings, I am rejecting the independent opinion of Mr Pannick QC and Miss Mulcahy. They were not invited to address me at the hearing and have not had the opportunity to deal with the arguments of Mr Anderson or the West Pennine Health Authority. I am grateful to them for their opinion, which I found helpful and thought provoking. I think it appropriate to explain exactly where I think their argument is wrong.

At paragraph 19(2) of the joint opinion, they cite Oberschlick v Austria as authority for the proposition that Article 10 of the Convention protects,
'not only the substance of the ideas and information expressed, but also the form in which they are conveyed'.
Although I accept that proposition from Oberschlick, I do not think it is of relevance to the present case. The Court was there asserting the principle that a person is entitled to disseminate information he has or opinions he holds in any way he chooses. Herr Oberschlick was a journalist who had been convicted of criminal defamation for publishing defamatory statements about a politician. The question for the Court was whether the provision in the Austrian criminal law, which prohibited publication of such material, (which provision was admitted to be a restriction on the right to freedom of expression,) complied with Article 10(2) in that it was necessary in a democratic society for the protection of the reputation of others. At paragraph 57, the Court reiterated the principle that freedom of expression as secured by Article 10(1) is one of the essential foundations of a democratic society. It applies not only to information and ideas which are inoffensive but also to those which shock, offend and disturb. The Court added that it protected not only the substance of the ideas and information expressed but also the form in which they are conveyed. That sentence is the one relied on in the joint opinion. I do not think that it bears upon the questions which arise here. In my view, all the Court was saying was that a person could express his ideas and disseminate his information in any way he chose, whether in print, broadcasting, plays, film, drawings or whatever. I do not accept that the Court was saying that if a person has the right to receive information in one way he also has the right to receive the same information through another means, regardless of the rights or wishes of those who would be involved in imparting it. I accept, of course, that the European Court of Human Rights does not operate under the jurisprudential rules followed in the English courts. In particular, the ECHR often makes statements of general principle which are wider than the ratio decidendi of the particular case. However, if this general statement is to be construed as a principle that Article 10 guarantees a person who receives information through watching and listening to a person speaking to him is also entitled to receive that information through television pictures and sound record, I am not prepared to accept it. I think that the general statement has been taken completely out of the context of the facts of the case in Oberschlick. I do not think that the Court intended to lay down so wide a principle.

At paragraph 19(3) of the joint opinion, Mr Pannick and Miss Mulcahy said that, unless justified under Article 10(2), a rejection of the CNN application would be not simply the denial of access to information in the form of television pictures but would prevent the receipt of information by a particular means when the public has access to the information by other means. The latter would be an interference with the Article 10 right. They appear to accept that the denial of access to the information (sight and sound of the proceedings) by means of television pictures would not interfere with an Article 10 right. But they suggest that if the public has access to the information because people can walk into the chamber and listen, they must also be equally entitled to receive the information in another form, namely by television pictures. I cannot accept that argument. It seems to me to confuse knowledge and information. The public is entitled to come into the chamber and see and hear the proceedings. They can use and disseminate the knowledge they have gained in any way they like. But this does not entitle them to receive different information, namely a permanent sound and visual record, just because that different information would contain the same knowledge as they can receive by coming into the chamber. In so far as Oberschlick is relied on, I have explained above that I do not think it supports the wide proposition contended for.

Nor do I accept that the case of Thorgeirson v Iceland has any bearing on the issues which arise here. I have already said that although I accept that the media have a general duty to impart information and ideas to the public and the public a reciprocal right to receive them, I do not think this general duty can be elevated into a specific duty to impart any particular type of information by any particular means so as to imply an obligation on any person or body to allow a broadcaster the right to televise an event.

I return therefore to my conclusion, which is that Article 10 does not apply so as to create a presumptive right for any person to film the proceedings of The Shipman Inquiry. The right to film is purely a matter of permission. I feel bound to observe that my conclusion appears to be consistent with the practice of the European Court of Human Rights. The Convention came into force in 1950 and the Court in Strasbourg has been adjudicating on its provisions for many years. One might have expected that its provisions would be understood and observed at the Court in Strasbourg, right from the start. If Article 10 has the effect now contended for by CNN, it is surprising that the point was not taken years ago before the Court itself. It appears no formal claim to film and broadcast its proceedings has ever been advanced. But it appears that the Court has given some thought to the question. I have been told that the Court allows broadcasters limited rights to film its proceedings. Permission covers the first few minutes of each party's submission and the whole of the judgement. It appears that this practice has never been challenged as a breach of the broadcasters' Article 10 right. Mr Robertson suggested that perhaps the Court's proceedings were not sufficiently newsworthy. I do not think that could be the explanation. Mr Joshua Rozenberg, the well-known legal journalist and broadcaster, whose evidence in support of CNN is before me, says that in practice the Court's press office exercises discretion as to what permission is granted for filming. It would be remarkable, if broadcasters have a presumptive right to film the proceedings of the Court pursuant to Article 10, that the Judges should allow their discretion (which would have to be exercised so as to satisfy Article 10(2)) to be exercised by a press officer. I conclude that Article 10 of the Convention does not apply and does not give CNN a presumptive right to film or broadcast the proceedings of the Inquiry. That disposes of the assertion of CNN's right.

The Application for Permission

I turn now to consider how I should approach the request for permission to film and broadcast the proceedings. I have an inherent power to regulate the proceedings, which includes the right to grant or refuse permission to film and broadcast the proceedings. I must make such decisions as this in accordance with the law and after giving due consideration to the interests of the general public, broadcasters, the witnesses and persons affected by my decisions and of the Inquiry itself.

My starting point must be the 1921 Act. This is an Inquiry into a matter of great public importance in which the general public has a real and legitimate interest. The Act requires me to hold the proceedings in public and not to exclude any portion of the public at any time unless I consider it expedient to do so in the public interest for reasons connected with the subject matter of the Inquiry or the nature of the evidence to be given. The hearings are held in public and the transcripts of the evidence are published. Much of the evidence is received in written form. That is usual in public inquiries and is appropriate where the evidence is not contentious. All the written evidence is being and will continue to be put into the public domain. I believe that these arrangements entirely satisfy the statutory requirements of the 1921 Act. For reasons which I have already explained, my duty to construe an Act of Parliament in such as way as not to conflict with the provisions of the Convention does not require me to construe the words of this Act in other than their ordinary natural meaning.

However, the Act lays down only the minimum provision that must be made for the public at a public inquiry. It does not prevent more generous provision. That is left to the discretion of each inquiry. As Mr Robertson observed, the 1921 Act was passed at a time when broadcasting was in its infancy and television had not been invented. The same can be said of the 1925 Act, which prohibits the taking of photographs in court. It may be that the time will come when Parliament will wish to reconsider the issue of filming of court proceedings. It may be that it will wish to give different instructions to the chairmen of public inquiries as to the minimum facilities which must be provided for the media and public than were thought appropriate in 1921. Until that happens, I am under no duty to extend filming facilities to broadcasters. However, I am free to do so if I think it appropriate.

My primary aim and concern is the proper conduct of the Inquiry. Because Parliament has decided that the Inquiry should be 'public' I shall allow such filming facilities as I can, consistent with that primary aim. In reaching my decision I shall have regard to the legitimate interests and expectations of that important group of people, without whose co-operation the Inquiry cannot function properly, namely the witnesses. In setting out this approach, I am consciously adopting an approach which is quite different from the test which I would have to apply under the 1921 Act, if I were to think of excluding the public or a portion of it from any of the hearings. This approach is quite different from that which I would have to apply if I were to think of restricting an Article 10 Convention right. Provided my decision is rational, I claim an unfettered discretion.

The Evidence

There is before me a wealth of evidence about the importance of the public interest in having television access to this Inquiry and the advantages to the public and to the Inquiry that such access would provide. I have also received evidence from the representatives of a large group of relatives of Shipman's former patients. Their view is that the evidence in relation to the individual deaths, to be heard in Phase 1, should not be televised but that Phases 2 and 3 should be. Where the Inquiry has received representations from those who are likely to be called to give evidence in Phases 2 and 3, I have been urged to refuse the application. I have some information from within the Inquiry as to the attitude of potential witnesses. Very few of those who are expected to give evidence have said that they wish to be televised. Some of those who wish to avoid being televised have expressed themselves in strong, even passionate terms.

Mr Tony Maddox and Mr Chris Cramer, both senior executives of CNN have provided statements. Mr Tony Maddox, the Senior Vice President, has provided an account of his organisation's approach to broadcasting. It is a very large organisation whose broadcasts and websites reach one billion viewers throughout the world. Its mission is to bring to members of its audience a comprehensive service of news that is relevant to them. It has won awards for outstanding coverage. Mr Maddox says that the subject matter of The Shipman Inquiry is of public interest not only in the UK but also internationally. CNN wishes to provide sustained coverage. The public needs to know how the checks and balances in place failed to prevent Shipman from killing his patients. They want to know how such a tragedy will not be permitted to happen again. He suggests that the truth of what happened and why will emerge not only from what the witnesses say but how they say it. He says that broadcasting would enhance the public understanding of the issues and the report when published.

In my decision of 11th June, I said that I did not think that a refusal of permission to film and broadcast would make a significant difference to the quality of media coverage of the Inquiry. CNN strongly disagrees with that. I accept of course that the Inquiry is an event of considerable public importance and interest. In June, my opinion was that even if filming were allowed, the Inquiry would be unlikely to feature prominently on the nightly news programmes, which are the usual product of the organisations that had then applied. In so far as there was to be coverage, I thought that a news broadcast, which might contain a two or three minute slot about the Inquiry, would of necessity require an introduction and explanation by a journalist. I did not think that a very short clip of a live witness would add much to the viewers' understanding, although it might add some human interest. That is why I said that I did not think that filming would make a significant difference to the availability of high quality coverage. However, I do accept that if a responsible broadcasting organisation were to provide regular in-depth coverage of the Inquiry, those who followed it would gain a greater understanding of the issues involved in this Inquiry and the process by which the Inquiry operates. If the coverage included live extracts, it would be more interesting than a second-hand report from a journalist.

During the hearing of the application, I expressed some doubt as to whether CNN would in fact provide in-depth coverage of the Inquiry if given the permission they seek. I had in mind the experience of Mr John Uff QC, the Chairman of the Inquiry into the Southall Rail Crash. He allowed broadcasting, subject to a protocol. I have little doubt that the broadcasters told him that his Inquiry was a matter of great public importance and that live extracts would assist the public understanding. In the event, he was disappointed with the interest shown by the broadcasting companies. They covered only 'human interest stories' and not the hearings that dealt with the technical failures which the Inquiry had to uncover. The broadcasters continued to place great reliance on out-of-court interviews. Mr Robertson has assured me that my doubts about CNN's intentions are misplaced. I have the evidence of Mr Cramer and Mr Maddox, that CNN intend to provide sustained coverage if granted permission. I shall accept the genuineness of that present intention.

Mr Robertson submitted and CNN's evidence asserted that live broadcasts are much more accurate than descriptive reports of proceedings. Of course, I accept that that is so, provided that the live broadcast is sufficiently long to give a fair and balanced impression of a witness's evidence. However, a short extract might not give a true and accurate impression of the whole of the testimony.

Mr Robertson submitted that televising the Inquiry would or might actually assist in the uncovering of the truth. People might come forward with evidence or ideas from which the Inquiry would not otherwise benefit. I cannot rule out that possibility but it seems fairly remote to me. I absolutely reject the suggestion made by some contributors, a suggestion not adopted by any advocate, that televising the proceedings would make the Inquiry's processes more thorough. I can say with confidence that it will not. The processes are as thorough as the team can make them and television will make no difference. Nor will the processes of the Inquiry be more transparent. That the processes are transparent might be obvious to more people but the processes themselves will be the same whether the hearings are televised or not.

In short, I recognise the public interest in receiving the best possible information about the Inquiry, its processes and evidence.

The arguments traditionally advanced against permitting the broadcasting of court proceedings are well known and largely untested in practice, at least in this country. In some countries the national courts permit filming, as also do some international tribunals. Experience in the USA has demonstrated that, if not properly controlled, filming and broadcasting can turn a criminal trial into a media circus. In most countries in the democratic world, there is a general perception that, even if filming is properly controlled, the fairness of a criminal trial is put at risk by broadcasting. Even in civil actions, which are usually tried by a judge without a jury, it is generally thought that the nature of the witnesses' evidence might be adversely affected by filming. A witness might be more frightened, or might be less frank or might tend to show off and over-dramatise his or her account. It is now recognised in Scotland that different considerations apply to proceedings that do not involve witnesses. Scottish judges are now able to give permission for such proceedings to be filmed, subject to a protocol. I do not know how often such permission has been granted.

Public inquiries are essentially different from trials in that they are not usually concerned to determine criminal liability or civil rights or obligations. They are usually concerned to discover facts and make recommendations for change. Witnesses are not at risk of suffering any legal penalty as a direct result of the findings of the Inquiry although they can on occasion be at risk of having the evidence used against them in, for example, disciplinary proceedings brought by an employer or professional body.

CNN relied on the experience of Sir Louis Blom-Cooper QC and Mr John Uff QC both of whom had allowed filming and broadcasting of public inquiries conducted by them in the past. They found that many of the problems anticipated did not arise. Sir Louis felt that allowing his inquiries to be filmed had had a wholly beneficial effect. Knowledge of the experience of others is helpful and interesting because, apart from these examples, the fears and concerns about the effect of filming are based on theory and speculation. However, the fortunate experience of two inquiry chairmen cannot be conclusive as to the advisability of allowing filming in another inquiry, because so much depends on the subject matter of the individual inquiry and the nature and sensitivity of the evidence to be given. However, the experience of these chairmen encourages me to think that it might be sensible and appropriate to allow filming of parts of The Shipman Inquiry.

One of the aspects of the question that most concerns me is the position of individual witnesses. I mentioned earlier that the Inquiry has consulted quite widely as to the attitude of those who would be affected by my decision. Mr Palin has provided a summary of the reactions conveyed to members of the Inquiry team who have the task of arranging the attendance of witnesses. My understanding of the submissions on behalf of the police and West Pennine Health Authority is that their officers and staff do not wish to be filmed. I hasten to say that they are not saying that they will refuse to give evidence if they are to be filmed. But they do not wish to be. I have also referred to the submissions received from members of Shipman's staff, whose position is or may be that they would refuse to testify if they were to be filmed. I will return to their position in due course. In the few days that have elapsed since I heard this application, the Inquiry has received a number of messages from future witnesses anxious about broadcasting. Some have said they will not come if they are to be televised. Counsel has also had to reassure a number of witnesses who have expressed anxiety on arriving at the Town Hall.

In the course of argument, I raised with Mr Robertson and others the scope of my power to order a witness to testify. I have the powers of a High Court Judge in this regard. I posed the question whether it would be right to treat as contempt (punishable as a final resort by imprisonment) a refusal to give evidence if the event were to be televised. What should happen if a witness's attitude was that he was prepared (albeit reluctantly) to come to the Inquiry and give truthful evidence, provided there was to be no film but that if the evidence was to be filmed, he would absolutely refuse to speak? Mr Robertson suggested that I should excuse witnesses from being filmed if they had a good and valid reason. I think he meant good and valid when objectively considered by me rather than good and valid from the point of view of the witness concerned. But I wanted to know what he said the position would be, if there were no reason other than a wish not to appear on television. Could I insist and ought I to insist? I do not think that Mr Robertson dissented from my view that it would be most unfortunate if that situation were to arise in this Inquiry. As anyone with experience of conducting an Inquiry knows, the process of investigation and presentation of the evidence would be virtually impossible without the co-operation of the witnesses.

Most citizens recognise the importance of the issues raised in a public inquiry and acknowledge that it is their public duty to provide the information requested and attend to speak if required. In my view the smooth operation of the Inquiry would be severely jeopardised if the Inquiry had to use its powers of compulsion on a large number of witnesses. Until now, it has been the expectation of any citizen who has to give evidence in a court of law that they will do so in public but not on television. I do not think it has ever been the general expectation that more will be required of one called to give evidence at a public inquiry. If and when Parliament decides, as it could, that the hearings of a public inquiry will normally be televised, (subject to the kind of discretionary limitation now given to the chairman to exclude the public or a portion of it from the hearings for good reason) then the expectation of witnesses will be that they will have to submit to being filmed. But we are not in that situation now.

I note that Sir Louis Blom-Cooper said that, in his inquiries, if any witness expressed a wish not to be filmed, he gave instructions that he or she should not be. For him the problem did not arise often. I think it might arise quite often if I allow filming of this Inquiry. Mr Robertson has suggested that one way round the problem of the reluctant witness would be 'pixillation' of the images. That is a process by which the features of the witness can be blurred so that he or she cannot be recognised.

My Decision.

On 11th June, I indicated that different considerations would apply to different phases of the Inquiry. I still think that is so.

Phase 1. Nothing that has been said in this application and nothing that I have learned from experience of the hearings so far has persuaded me to change the view which I formed at an early stage that I ought not to allow filming of the Phase 1 hearings. The media and public can attend the hearings and can access the transcripts and documents. They are deprived only of the sight of the faces and the sound of the voices. I have said before that I think that the additional stress, which filming would impose on witnesses who have to describe deeply distressing events, would be quite unacceptable. I have now seen a number of such witnesses give their evidence. Counsel tells me that many are worried before they give evidence that they might 'make fools of themselves' by losing control of their emotions. Some of them cry whilst giving evidence. Sometimes the voice falters and stops and the witness cannot continue for a while. Although these reactions are wholly understandable, the witnesses are embarrassed. If these witnesses were at risk of appearing on television their distress would be increased and there would be an unwarranted intrusion on their private feelings. Practically all the Phase 1 witnesses are strongly opposed to televising the proceedings. I think many would have refused to give evidence if they were to have been filmed. Of those who are still to come, I think many would refuse if filming were allowed. I do not think a refusal would be unreasonable. Indeed I do not think these witnesses should be seen on television or heard on radio. The balance of interest comes down heavily against broadcasting of Phase 1.

There is an additional reason, which I did not mention before, but which I now think is important. Because I have to assess the likelihood that an individual deceased person died a natural death, the Inquiry has to go into quite a lot of detail about the deceased's state of health before death. Sometimes we have to examine the medical records going back over quite a long period of time. The records contain very intimate details. They were confidential during the patient's lifetime but the Inquiry has to look at them and there can be no claim to confidentiality. The dead can have no 'human rights'. However, they are entitled to respect and in my view, it would be inappropriate for those records or discussion of them to be exposed to a wider audience than is necessary for the proper functioning of the Inquiry.

My decision in respect of Phase 1 remains as before.

Phase 2. Phase 2 raises different considerations. A great variety of different people will be called to give evidence. Some of them will be professionally qualified. Some are public servants. Some will have been employed in positions which carry clearly defined statutory duties. Some will be unqualified and will have received very little training for the duties in which they were involved when they became caught up in the Shipman case. Some will know, when they come to give evidence, that they are likely to be subjected to probing questions, which might embarrass them and also recognise that they might be criticised in my final report. These criticisms might result in disciplinary proceedings or might in other ways affect their professional reputations and the course of their future careers. Many will have absolutely nothing to fear either from the questioning or from the report.

The topics under discussion are of considerable public interest. Whether the actual events will be interesting to the public is a different matter. I do wish to recognise the interest of the public in the issues and to assist the broadcasters in providing informative and educative coverage.

I do not at the moment know to what extent televising the proceedings will adversely affect the proper conduct of the proceedings. I have decided that I am prepared to allow broadcasting of Phase 2, provided it can be done without jeopardising the process of investigation or disrupting the hearings. I will not know whether that is possible unless we try it. I propose to proceed stage by stage.

Phase 2 will be divided into four stages. Only in respect of Stage 1 (Death Certification) and Stage 2 (The police investigation of March 1998) has sufficient preparatory work been done for me to have an idea of the course each stage is likely to take and who is likely to be called to give evidence. Even for Stage 1, the final list of witnesses will not be determined for some time yet.

In respect of Stage 1, I anticipate that there will be a number of witnesses who explain how the existing systems work in relation to death registration, cremation certification and referral to the coroner. Some witnesses, not directly related to the Shipman case, will explain good practice. Others, who worked in Hyde during Shipman's time, will be examined about their practice and the way in which they carried out their duties in particular cases. Most of these will be professional people, such as doctors or public servants. Some relatives of Shipman's victims will give evidence, but about documentation rather than about the death itself.

I have decided to allow Stage 1 to be used as a 'pilot' experience of filming and broadcasting this Inquiry. This part of the Inquiry is expected to begin in Spring 2002. I intend to allow approved broadcasters to take a feed from the Inquiry's own cameras. This will permit me to retain a measure of control over what is filmed. The mechanics of how this will be done must be a matter for discussion and negotiation with the Inquiry. The use of the feed will be subject to a protocol, which will also be subject to consultation. The arrangement must be such as will not adversely affect the working conditions for those taking part in the hearings. I shall reserve the right to prevent the broadcasting of any part of the proceedings but I shall do so only for good reason.

It should be understood that I might decide to discontinue the experiment at any time if I find that it is interfering with the proper conduct of the Inquiry. I shall review the position at the end of Stage 1. Even if the experiment is wholly successful and is allowed to continue, I am sure that there will be parts of the Inquiry which I shall not permit to be filmed. I can say now that the Market Street practice staff, including the nurse, who do not wish their evidence to be filmed, will not be filmed. The reasons advanced so succinctly on their behalf by Miss Ruth Stockley, why they should not be required to submit to filming, seem to me to be quite compelling.

I have said that I am concerned about the position of people who, for one reason or another, do not wish their evidence to be filmed. The experience of other chairmen of inquiries leads me to hope that, once filming has become the norm, most witnesses will accept it. I will consider applications by or on behalf of witnesses who do not wish to be filmed. Such applications should not be made until the witness receives a definite request that he or she should attend.

I think I should give some guidance as to when I think a witness ought to be prepared to accept filming. In general, witnesses who are professionally qualified or are public servants or have clearly defined duties, for which they have received training, should in my view, be prepared to accept the process, whether or not they might face challenging cross-examination and possible criticism in the report. I would make allowances for personal circumstances such as ill-health or advancing years. There may be other relevant factors in individual cases. I would discuss the possibility of 'pixillation' in any case where that might provide a compromise solution.