2 December 2002
Sir Philip Bailhache, Bailiff, and Jurats de Veulle and Allo
Jersey Evening Post Limited
His Excellency Sheikh Hamad Bin Jassim Bin Japer Al-Thani
(and on behalf of the adult beneficiaries of the Y Trust, the H Trust and the Y No. 2 Trust)
David Fisher Le Quesne, Advocate (on behalf of the minor and unborn beneficiaries of the said Trusts)
Standard Chartered Grindlays Trust Corporation (Jersey) Limited
The State of Qatar
Her Majesty’s Attorney General
Advocate N. M. Santos-Costa for the Representor;
Advocate F. B. Robertson for First Respondent;
Advocate M.J. Thompson for the Third Respondent;
Advocate J.D.Kelleher for the Fourth Respondent;
Advocate C.E.Whelan for the Fifth Respondent.
Application by the Representor to discharge two orders of the Court: (1) an order of 10th October 2001 directing, inter alia, that the Court should sit in camera until further order to hear a representation of the First Respondent under the Trusts (Jersey) Law, 1984; and (2) an order of 21st November, 2001 that there be no publication in the media of any material or information or report relating to, or connected with, the in camera proceedings.
1. This representation raises important matters of principle in relation to the practice and procedure of the Court when sitting to determine an application under Article 47 of the Trusts (Jersey) Law 1984 (“the Trusts Law”). Jersey Evening Post Limited (“the JEP”) applies to discharge two orders of the Court. The first is an order of 10th October 2001 directing, inter alia, that the Court should sit in camera until further order to hear a representation of His Excellency Sheikh Hamad Bin Jassim Bin Jaber Al Thani (“Sheikh Hamad”) under the Trusts Law. We shall refer to this as “the first order”. The second is an order of 21st November 2001 in the following terms –
“that there be no publication in the media which, for the purpose of this order, shall mean in a programme, service or other communication in whatever form, which is addressed to the public at large or any section of the public, of any material or information or report relating to, or connected with, the present in camera proceedings.
And the Court granted the parties liberty to apply”.
We shall refer to this as “the second order”.
2. The second order followed the publication in the Jersey Evening Post of an article headed “Court battle over Qatar millions” describing in broad terms the nature of the in camera proceedings and speculating on some of the arguments being advanced. That article led to a complaint of a possible contempt of court from counsel for the State of Qatar as a result of which the editor of the newspaper and the journalist were invited to attend before the Court. The allegation of contempt was referred to the Attorney General and it is right to add that the Attorney found no grounds for taking any further action. After hearing counsel for the parties and (to a limited extent because the principal submissions were made in camera) Mr. Costa for the JEP, the Court made the second order containing the reporting restrictions referred to above. Liberty to apply was given and, pursuant thereto, the JEP brought this representation on 11th January 2002. Advocate Le Quesne, the second respondent, sought and was granted leave to withdraw, and has played no part in these proceedings.
3. This hearing was held in open court although, without formal objection from counsel for the JEP, many of the submissions made during the course of it were made in camera in the absence of Mr. Costa and his client. At an earlier stage Mr. Costa had complained that the JEP was not aware of the identities of the parties and their respective advocates. Despite some submissions from counsel for some of the other parties that the Court should not confirm in its judgment speculative comment published in the Jersey Evening Post and some other newspapers, we think that the following brief synopsis of the procedural history can be stated without unfairness to anyone. Counsel for Sheikh Hamad consented to the identification of his client, as did counsel for Standard Chartered Grindlays Trust Corporation (Jersey) Limited (“the trustee”). Sheikh Hamad is a member of the ruling family of the State of Qatar and currently holds the office of Minister of Foreign Affairs. The involvement of the State of Qatar is already widely known. The trusts in question are known as the Yaheeb Trust, the Havana Trust and the Yaheeb No. 2 Trust. We refer to them collectively as “the Trusts”.
4. In May 2001 an application was made to the Court by Sheikh Hamad pursuant to Article 47 of the Trusts Law. It was made in camera. The trustee, Advocate D.F. Le Quesne as guardian ad litem for the unborn and minor beneficiaries of the trusts, and the State of Qatar were convened to the hearing of that application. After hearing submissions the Court declared that the trustee held the assets of the trusts for the beneficiaries named therein respectively and for no other party or parties. That judgment was also given in camera.
5. On 6th July 2001, a second representation was made by Sheikh Hamad to which all the parties to the May 2001 representation but in addition the Attorney General were convened. Between Monday 19th November and Friday 23rd November argument took place on a preliminary application of the Attorney General. On 14th December 2001 judgment was delivered.
6. On 21st May 2002 counsel for Sheikh Hamad wrote to the Judicial Greffier pursuant to Rule 6/24 of the Royal Court Rules 1992 seeking to discontinue both the proceedings instituted by the second representation (“the substantive trust proceedings”) and appeals against the Court’s order of 14th December 2001. A consent order was issued by the Greffier Substitute on 23rd May 2002. The original proceedings are now therefore at an end.
7. It is to be noted that the JEP was not informed of this discontinuance despite a direction of the Bailiff given on 28th March 2002 that “pending resolution of the issues raised in the representation, the Judicial Greffier will give the legal advisers for [the JEP] five clear days’ written notice of the Court’s next sitting on the substantive trust proceedings”. The discontinuance was however followed by a press release issued on behalf of the Attorney General on 28th May 2002 with the agreement of the legal advisers of Sheikh Hamad. That press release indicated that a criminal investigation into the conduct of Sheikh Hamad was at an end and that the Sheikh had voluntarily paid £6 million towards the costs of the investigation into the affairs of his three Jersey trusts.
Is the Court functus officio?
8. In the meantime preparations for the trial of this representation were afoot. The discontinuance of the substantive trust proceedings however led counsel for Sheikh Hamad to mount an argument that the Court was functus officio which was advanced at hearings on 30th September and 1st October. The argument was rejected and we now give our reasons for that rejection.
9. While many of the cases involving the doctrine of functus officio concern the powers of Magistrates’ courts there is no doubt that the doctrine is applicable to civil proceedings too. In .  3 All ER 417 the head-note to the report encapsulates the principle –
A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even where a decision has been communicated to the parties. Proceedings are only fully concluded, and the Court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded the Court cannot review or alter its decision; any challenge to its rulings on adjudication must be taken to a higher court if that right is available.
10. Mr. Robertson argued that the discontinuance of the substantive trust proceedings had brought them to a close and that orders made in the context of those proceedings could no longer be reviewed. He continued that even if the Court was not functus officio, any discharge of those orders could only have prospective effect. In relation to the first order in particular the Court could not undo retrospectively what it had done on 10th October 2001.
11. We cannot accept those submissions for the following reasons -
(i) In relation to the second order the prohibition of the reporting of the in camera proceedings is a continuing obligation. If circumstances have changed it must be open to the Court to review or to discharge its order. It cannot be right to require a litigant to go to the Court of Appeal where the appellate court would have no inkling of the views of this Court on the merits or demerits of discharging the order.
(ii) In relation to both the first and second orders the JEP intervened in the substantive trust proceedings before discontinuance by bringing this representation and the Court is still seized of the issues raised by the representation. There has been no determination of those issues. It would be quite unjust to allow the discontinuance of the substantive trust proceedings, in relation to which the JEP was not heard, to bring to an end the Court’s jurisdiction to determine issues properly placed before it by the JEP.
(iii) Even if the first order is effectively dead the Court has an inherent jurisdiction to discharge it if it is just to do so. In , (23rd June 2000) Chancery Division, unreported, Laddie J was asked to discharge an Anton Piller order that was “more or less dead”. He stated –
We are satisfied that the Court is not functus officio in relation to the issues raised by this representation.
12. In contending that both the first order and the second order should be discharged Mr. Costa rightly placed great emphasis on the principle of open and transparent justice. Many authorities were placed before us but it is necessary to cite only two. In  QB 966, Lord Woolf MR opined that it was important not to forget why proceedings should be subjected to the full glare of publicity:
13. An earlier passage is to be found in Sir Jack Jacob’s Hamlyn Lecture The Fabric of English Civil Justice (1987) at pages 22-23 –
14. The principle of open justice has not yet found statutory expression in Jersey but we have no doubt that it forms part of our law. Indeed it has been given judicial expression in numerous judgments of the Court. Like most great principles however it is subject to qualifications. Viscount Haldane LC stated in  AC 417 –
15. The speeches of their Lordships in were considered in a recent judgment of this Court in (2000) JLR 56 where Page, Commissioner usefully summarized the general principles –
16. The aim therefore is to do justice to the parties before the Court. That aim must not be stultified by a rigid application of the principle that justice must be done in public. Yet the principle of open justice should not be displaced as a matter of convenience or expedience, or to avoid embarrassment to one or more of the parties, but only if it is necessary to do so in the interests of justice.
17. Mr. Costa submitted that the courts in Jersey had used the terms “in camera” and “in chambers” interchangeably and on occasion confusingly. He referred to [1998/152], which was, as it happens, an application under the Trusts Law. Crill, Commissioner stated in that case –
18. Counsel submitted that the Court in that case was not sitting in camera, where the proceedings were secret, but was sitting in chambers as a matter of convenience. He referred to another passage from the judgment of Lord Woolf MR in (1998)1 WLR 1056 –
19. The difficulty with Mr. Costa’s submission is that English practice has developed in part under the influence of statutory intervention. This becomes even clearer from a later passage from Lord Woolf’s judgment in . –
20. Nonetheless we agree with Mr. Costa that there has occasionally been a confusion of terminology employed by the Court. In our judgment the important distinction to be drawn is between cases heard in open court and cases heard in private. When the Court sits in camera it is in effect sitting in private, and we think that greater clarity would result if those Latin words were no longer used and courts declared that they were, in appropriate cases as described above, sitting in private. When the Court sits in private it follows that only the parties and their advisers are entitled to be present. The public and the media will be excluded unless the Court otherwise orders. So far as the place where the Court sits to conduct its business is concerned, this appears to us to be entirely a matter of convenience and not to affect the important principle as to whether the Court is sitting in public or in private. It may be convenient to conduct a public hearing in the judge’s room or indeed anywhere else. Equally, it may be convenient, for example by reason of the number of the parties and their advisers, to conduct a private hearing in a court-room. We think that the employment of the term “sitting in chambers” can lead to confusion as to whether the Court is sitting in public or in private. We invite the appropriate authorities to consider whether the references to sitting “in chambers” in the Royal Court Rules 1992 should not be amended to avoid that possible confusion.
21. We emphasize that we do not intend to imply that hearings hitherto described as being held in chambers should not continue to be held in private as may be necessary. We respectfully agree with the comments of Lord Woolf MR that such hearings make an important contribution to the administration of justice. They allow more informality, openness and expedition. Directions hearings dealing with case-management issues preliminary to trial are already common in this jurisdiction and in the ordinary run of events it is perfectly proper and necessary in the interests of justice that they should be conducted in private. Generally they are of no interest in any event to the public or media. On the other hand the Court naturally retains a discretion in an appropriate case to admit a representative of the media or indeed to sit in public for such purposes. The Court should be as flexible as the circumstances admit. In all cases where the Court is sitting in private it should consider whether it is appropriate for a judgment to be given in open court announcing the order which is being made and giving some account of what has happened at the private hearing.
Nature of Article 47 proceedings.
22. We turn to consider the nature of proceedings under Article 47 of the Trusts Law. We observe in passing that Rule 13/1 of the Royal Court Rules 1992 provides that:
While this may be indicative that certain applications under Article 47 may be heard in private, we think that the rule is not particularly helpful in the context of this representation.
23. Mr. Thompson for the trustee contended that whenever the Court sat to hear an Article 47 application it was sitting in an administrative capacity. It was accordingly entitled to adopt a different approach on the question of whether or not it should sit in private from the ordinary run of civil cases. The trustee’s duty of confidentiality was central to the trustee/client relationship and the Court had indicated that it would uphold the principle of confidentiality unless there was good reason why it should not do so. In (2000) JLR 173 the Court had endorsed the view that when a settlor expressed his wishes in writing privately to his trustees, there was a presumption that he intended the document to be confidential. Birt, Deputy Bailiff, had stated at page 190 that “the Court should ordinarily respect that confidentiality”. In 1994 JLR 139 the Court expressed the duty of confidentiality at page 146 as follows –
There was every reason therefore, counsel contended, for the Court to sit in private to hear applications under Article 47 of the Trusts Law.
24. Counsel drew support for that contention from (1995) JLR 266 where Hamon, Deputy Bailiff stated –
Counsel also relied on the passage from the Court’s judgment in
25. We accept that where a trustee surrenders his discretion to the Court, as happened in , and voluntarily discloses sensitive or confidential information relating to the affairs of the trust, the Court should sit in private to determine the application. The proposition that all applications under Article 47 of the Trusts Law fall into this category is however too wide and is misconceived.
26. In (24th July, 2001) Jersey Unreported; [2001/154], Deputy Bailiff, cited with approval as representing the law of Jersey the following passage from a judgment of Robert Walker J in an unnamed case heard in chambers in 1995 setting out four categories of application by a trustee –
27. In , (20th December 1999) Unreported Judgment of the High Court of England and Wales, in which the above extract is cited, Hart J cautioned against assuming that there was always “a bright-line distinction” between these categories. It is clear that there will be cases falling into more than one category. Broadly speaking, however, in England, cases in categories one and four will be heard in open court, whereas cases in categories two and three will be heard in private.
28. We think it would be unwise to be too dogmatic as to when the Court should sit in public and when it should sit in private to hear Article 47 applications. As Hart J rightly emphasized, the categories adopted in are not watertight, and some cases may even fall outside them. The jurisdiction conferred by Article 47 of the Trusts Law is a wide one. It has been employed to the great advantage of settlors, trustees and beneficiaries since the Trusts Law came into force. But we think it can be said that the courts in this jurisdiction have accorded a greater importance to the need to respect the confidentiality of private trusts than has been the case elsewhere. It has certainly been the practice in Jersey to sit in private to hear applications falling within categories two and three; but it has been the practice occasionally to sit in private to hear cases falling in category one. The underlying rationale is a desire not to undermine the confidence which lies at the root of the relationship between a trustee and the beneficiaries, particularly of a discretionary trust. In striking the balance between the principle of open justice and the rights of individuals to respect for the confidentiality of their private business arrangements, the Court must have regard to the purpose of the Article 47 jurisdiction. Its broad purpose is to assist those concerned with the administration of trusts to resolve their differences and to seek judicial guidance or direction in an orderly context but in a relatively informal and flexible manner. When hostile litigation is being conducted, it must naturally be conducted in public in the ordinary course of events. But where the Court is sitting administratively, or is exercising a quasi-parental jurisdiction to protect the interests of all the beneficiaries of a trust, the Court should generally sit in private. Although the Human Rights (Jersey) Law 2000 is not yet in force, we have considered whether this approach might be in conflict with a convention right under the European Convention on Human Rights. Article 6(1) of the Convention provides –
In our judgment the phrase “or the protection of the private life of the parties so require[s]” is sufficient justification, absent any compelling reason to the contrary, for resolving to sit in private to hear this kind of application under Article 47 of the Trusts Law.
The representations brought by Sheikh Hamad.
29. We turn to consider the representations brought by Sheikh Hamad. As we have stated above, two applications were made under Article 47 of the Trusts Law. The first application appears not to be within the knowledge of the JEP but it is necessary to refer to it briefly in order to consider the nature of the second application which led to the first order being made on 10th October 2001.
30. The application made by Sheikh Hamad, as a beneficiary of the Trusts, in May 2001 was designed to establish that the trustee did not hold the trust funds on constructive trusts for any other person, and that the trustee could accordingly make distributions to the beneficiaries. In our judgment this application fell on the borderline between the first and second categories in and was properly heard in private.
31. We turn next to consider the second application of Sheikh Hamad which, as we have stated, led to the first order which the JEP seeks to have set aside. The second application was, pursuant to the first order, heard in camera but we must, in order to explain the decision at which we have arrived, refer at this stage to the nature of the application and in consequence to some material which is not yet in the public domain. In our judgment it is necessary to do so, and what is set out below does not in all the circumstances cause unfair prejudice either to Sheikh Hamad or to any other party.
32. The Court’s order of 17th May 2001 did not resolve the problem faced by Sheikh Hamad in relation to the Trusts. The underlying difficulty was that the trustee had felt obliged in July 2000 to make a suspicious transaction report pursuant to the Proceeds of Crime (Jersey) Law 1999. The trustee was then caught on the horns of a dilemma. If it distributed funds from the Trusts it might commit an offence under the Proceeds of Crime Law. If it refused to distribute, it might render itself liable to action for breach of trust. Under the Proceeds of Crime Law the trustee would have been afforded a defence to a charge of assisting another to retain the benefit of criminal conduct if the police had consented to any distribution. That consent was not however forthcoming. Sheikh Hamad’s application accordingly sought directions from the Court “that will enable the trustee to resume the administration of [the Trusts] in accordance with their terms within such a time and to such an extent as may be reasonable in all the circumstances of the case”. This “rather elliptical application” (to use the Court’s phraseology in its interlocutory judgment of 14th December 2001) was in reality designed to overcome the refusal on the part of the police to consent to the distribution of funds from the Trusts.
33. The Attorney General objected that this was tantamount to directing the trustee to do something which might amount to the commission of a criminal offence. Although the Attorney General declined to be specific as to what offences were under investigation, it emerged that the inquiries were concerned with the payment of commissions to Sheikh Hamad. Those commissions were paid by foreign companies in relation to certain arms contracts with Qatar. The commissions had been paid into the Trusts. The police were unwilling to consent to any withdrawal of funds from the Trusts at what was said to be an early stage of a complex inquiry. On the other hand, the effect of the police refusal to grant consent was to paralyse the administration of the Trusts in circumstances where it had not been established that the trust funds were in fact the proceeds of crime. We should add that the allegation that they were the proceeds of crime is no longer being pursued.
34. We think that we have said enough to indicate that the second application by Sheikh Hamad under the Trusts Law could not in any sense be described as a straightforward administrative matter. It was in fact a controversial and hotly contested application. It does not fall neatly within any of the four categories in , but we have no doubt that it was not the kind of trust application under Article 47 which might ordinarily have been heard in private. It was adversarial litigation.
35. That is not to say however that the Court was wrong to sit in private. There appears unfortunately to be no record of the submissions made by counsel on 10th October 2001 as to why the Court should sit in private. Furthermore, the Court did not give any reasons for its decision to accede to those submissions. What can be said is that counsel for Sheikh Hamad advanced two grounds for sitting in private. The first was that the representation was an administrative application under the Trusts Law. We have now found that that ground is without substance. The second was that the issue of alleged criminality made a hearing in private necessary to avoid prejudice to the process of criminal justice. That submission was not opposed by the Attorney General. That ground (of possible prejudice to the process of criminal justice) is no longer relevant because the Attorney General has announced that the investigation into alleged criminality on the part of Sheikh Hamad is now at an end.
The first order.
36. Should the first order accordingly be discharged? In one sense the order is spent in that the proceedings were in fact conducted in private. However, as Laddie J stated in relation to the Anton Piller order in , the discharge of the first order in this case would not be an empty gesture. Mr. Costa at one stage appeared to be seeking access to all the documents of the Trusts, affidavits and other written material placed before the Court at the hearing. He is clearly not entitled to such documents. As Potter LJ stated in  1WLR 984 at page 995 –
We consider that this statement also represents the law in this jurisdiction.
37. Generally speaking the submissions of counsel would have been lost upon the air; but in this case they have been recorded. At the request of the Attorney General and eventually by consent of all the parties, on 10th October 2001 the Court –
“directed that all evidence and submissions in the proceedings be recorded on audio tape and not released to any other person without leave of the Court, and that adequate notice be served on all parties upon such application for leave being made; if a transcript is to be obtained it must be with the knowledge of the other parties;”
There is now a transcript of the submissions made by counsel, and counsel for the JEP seeks access to those transcripts.
38. Counsel for Sheikh Hamad argued that the Court could not discharge the first order with retrospective effect. The order could not be re-visited and set aside ab initio. Whatever the merits of that argument it does not seem to us to be in issue here. The Court has a discretion, as we have found, to discharge the first order. Whether, and if so to what extent, we should exercise that discretion is considered below. If the first order is discharged the Court will need to consider whether, and if so to what extent, to exercise the power reserved on 10th October 2001 to grant leave for the release of the transcripts to the JEP. Whether or not the first order is discharged we must consider whether changed circumstances justify the release in whole or in part of the Court’s judgment delivered on 14th December 2001. The exercise of these discretions are of course inter-related. To discharge the first order while at the same time refusing to allow the JEP access to the transcripts or part of them would indeed be an empty gesture.
39. Counsel for all the respondents were in varying degrees opposed to the unqualified release of the transcripts to the JEP.
40. Mr. Kelleher stated that Qatar accepted the presumption that justice should be done in public. The presumption was however rebuttable, and the national security of Qatar was a factor which could rebut the presumption. Counsel accepted that, if the national security of Qatar was to rebut the presumption of openness, it would have to pass a threshold where “the Court reasonably believes it to be necessary in order to serve the ends of justice” as Lord Diplock put it in  AC 440; or it “appears to endanger the due administration of justice” (per Lord Scarman in the same case). This is a high threshold but counsel submitted that proper respect for the legitimate security concerns of another state was a factor that could, as a matter of comity and in the public interest, overcome that threshold.
41. He drew support for this contention from passages in the judgments delivered in the English Court of Appeal in  QB 223. Donaldson LJ stated at page 256 –
Brightman LJ also stated at page 265 –
42. Counsel drew further support from  1NZLR 129, which was a New Zealand case involving an attempt by the United Kingdom Governemnt to seek an injunction and damages in respect of the publication of the book “Spycatcher” in New Zealand. Cooke P stated –
43. We have had the benefit of further submissions made in private based upon an affidavit of General Hamad Bin Ali-Attiyah, Chief of Staff of the Qatari Armed Forces. We have not found this aspect of the matter easy, but we have on balance concluded that we ought to accept the submissions of counsel for Qatar for three reasons.
(i) We take judicial notice of the fact that Qatar is a friendly foreign state. While we might have thought that some of the material to which objection to disclosure is taken was already in the public domain, there is no evidence before us to that effect. We accept that we do not know how valuable even apparently insignificant pieces of information might be to the enemies of Qatar. When the State of Qatar asserts through the Chief of Staff of its Armed Forces that disclosure of certain documents could be damaging to the national security of Qatar, we think that we should, absent compelling considerations to the contrary, accept that assertion.
At this moment in world affairs, when storm clouds are gathering over the Middle East, we agree with Mr. Kelleher that the Court should be particularly cautious. We agree with the prescient observations of the New Zealand Court of Appeal in
Counsel for Qatar helpfully supplied us with a list of references in the transcripts to the disclosure of which objection was taken.
44. Mr. Robertson for Sheikh Hamad was opposed to the release of the transcripts on two principal grounds. First, he submitted that there was an issue of confidentiality. Confidential information was given to the Court on the basis that the Court was sitting in private. Secondly, he submitted that the release of the transcripts would cause unfair and disproportionate prejudice to Sheikh Hamad. The two points are in a sense interrelated. There is no doubt that certain passages in the transcripts would, if released, cause prejudice to the interests of Sheikh Hamad. They would open the door, as counsel suggested, to further articles alleging improper if not illegal conduct. In general, as counsel rightly submitted, the details of a police investigation not resulting in a criminal charge are not publicly released. Would it thus be unfair to release the transcripts? The contrary argument put to us by counsel for the Attorney General is that the prejudicial material in the transcripts results in the main from the Attorney General’s response to the argument that the refusal of the police to consent to the payment out of trust funds should be overridden. The Attorney General was driven to explain why the police had not granted their consent under the Proceeds of Crime Law. Inevitably that explanation involved the disclosure of documentary material which, in the Attorney General’s view, gave rise to suspicions. If Sheikh Hamad had not brought his representation under the Trusts Law none of this would have emerged.
45. It is the case that all this prejudicial material constituted valid grounds for sitting in private to receive it. If the Court had not sat in private, the publication of the material might well have caused prejudice to the process of criminal justice. It is also the case that the material assembled during the police investigation has not, and now never will be tested in a court of law. What appears on the face of it and from one perspective suspicious might in fact have turned out on closer analysis to be entirely innocent. We have reached the conclusion that it would be unfair to authorize the release of material assembled during a police investigation which has now come to an end. It would be equally unfair to authorize the release of confidential material put forward by Sheikh Hamad to rebut the police allegations on the basis that the hearing was being conducted in private. The proper place to conduct a trial of alleged criminality is in a court of law subject to all the usual safeguards and not in the media.
46. Mr. Thompson for the trustee reminded the Court that the investigation into alleged regulatory offences by the trustee was not concluded. In so far as the transcripts contained material alleging improper or unlawful conduct, it could be prejudicial to the process of justice. This submission is difficult to evaluate in that the Court has not been told what alleged regulatory offences or misconduct are under investigation. Nonetheless the submission is clearly correct. It would be wrong to order the release of material in the transcripts which could prejudice future proceedings against the trustee or its officers.
47. Mr. Whelan for the Attorney General was opposed to the release of the transcripts only in one respect. The Attorney General had referred to a document during the course of submissions to which he would not have been authorized to refer had the Court been sitting in public. In counsel’s view the references in the transcripts to this document could be excised if the Court were minded to grant leave for the transcripts to be released to the JEP.
48. The Court has read the transcripts of the hearings that took place between 19th and 29th November 2001. While it is possible that some parts of the transcripts might be released to the JEP without transgressing the bounds of counsels’ objections, it seems to us that the process of editing and excision would be inordinately time-consuming and ultimately futile. The reason is simple. The underlying purpose of the Attorney General was to show that there were grounds for suspecting that the conduct of Sheikh Hamad might have involved the commission of criminal offences and that the withholding of consent under the Proceeds of Crime Law by the police was justified. Part of the evidence assembled during the police investigation was accordingly placed before the Court and adverse inferences drawn from that evidence. Submissions on behalf of Sheikh Hamad were designed to show that the inferences drawn were misconceived, and that the evidence was capable of bearing different interpretations. The bulk of the transcripts are therefore concerned, directly or indirectly, with allegations of criminal misconduct by Sheikh Hamad. Even when legal submissions were made, they are generally comprehensible only by reference to the documents obtained during the police investigation. In addition there are materials placed before the Court by counsel for Qatar in relation to defence policy and arms procurement which, as we have held, ought not to be disclosed in the interests of the national security of Qatar. The transcripts contain an intertwined mass of material the bulk of which ought not, for the different reasons set out above, to be placed in the public domain. We think that there is a more satisfactory way of satisfying the need for public justice than by ordering the disclosure of disjointed sections of the transcripts. We refer to that in paragraph 50 below.
49. The application to discharge the first order is accordingly refused, as is the application by the JEP for access to the transcripts.
The December 2001 judgment
50. We turn to the next question raised with counsel during the hearing which is whether the interlocutory judgment delivered by the Court on 14th December 2001 but not released, ought now to be placed in the public domain. The draft judgment was circulated to counsel on 13th December 2001 with a note from the Bailiff’s Judicial Secretary indicating that the Bailiff was minded, subject to any submissions which might be made by counsel, to order that the judgment be placed in the public domain. In the event the Court was persuaded by counsel’s submissions that the course of criminal justice might be prejudiced by the release of the judgment at that stage, and the Court directed it be withheld until further order. So far as Sheikh Hamad is concerned, the prejudice to the process of criminal justice is no longer relevant, the Attorney General having announced that the police investigation is at an end.
51. Counsel for Sheikh Hamad helpfully summarized his position in a written note. He objected to the release of the judgment on the basis that, in the generality, no publicity is given in relation to the discontinuance of a police investigation other than an announcement that the criminal process is at an end. The judgment of 14th December 2001 does not however refer to any of the evidence placed before the Court during the hearing. What it does make clear is that the Attorney General was seeking to cross-examine Sheikh Hamad on his affidavits. Counsel submitted that adverse inferences might be drawn from the disclosure of the nature of the application. We do not know, and we decline to speculate, on what inferences might or might not be drawn. In our judgment this objection falls squarely within the principle that open justice should not be displaced in order to avoid embarrassment to one of the parties. The fact that the Attorney General wished to cross-examine Sheikh Hamad and was granted leave to do so is essential to an understanding of the hearing that took place in November, 2001. In our judgment, no unfair prejudice can be cause to Sheikh Hamad by this disclosure.
52. Counsel for the trustee reminded us that a police investigation was continuing in relation to alleged regulatory infractions by his client. We have examined the judgment of 14th December 2001 in the light of that submission but we cannot find anything which is likely to cause unfair prejudice to the trustee. It is true that the judgment is critical of the trustee in some respects, but that criticism falls short, in our judgment, of creating any prejudice likely to affect the process of criminal justice. Counsel also objected that publication of the judgment would reveal that the Attorney General wished to cross-examine the managing director of the trustee. That is true, and might cause the trustee some embarrassment, but this seems to us insufficient to displace the principle of open justice upon which counsel for the JEP rightly placed reliance. Counsel further objected that paragraph 28 of the judgment refers to the names of certain persons who were not involved in the proceedings and not represented in Court. We agree that the publication of those names would be unfair and we advert to that below.
53. Viewing the matter in the round, we can see no reason why, given the change of circumstances since it was delivered, the Court’s judgment of 14th December 2001 should not now be placed in the public domain. So to order would acknowledge the important principle of open justice on which this representation of the JEP is founded, and the general practice of this Court in disclosing, where possible, the nature of proceedings that have taken place in private. We will order that the names of persons referred to in paragraph 28 of the judgment be excised and replaced by the phrase “certain other persons”. Subject to that redaction we direct the Judicial Greffier to publish the Court’s judgment of 14th December 2001.
The second order.
54. We turn finally to the reporting restrictions contained in the second order which the JEP seeks to have discharged. Counsel for the JEP was critical about the breadth and unlimited duration of the order. We do not accept that criticism. The second order is certainly framed in wide terms but it was designed to protect the course of criminal justice which might have been adversely affected if the reporting of the proceedings had continued. Liberty to apply was given, and indeed the JEP has taken advantage of that liberty by making this representation.
55. Counsel for the JEP rightly emphasized however that circumstances had changed. It is clear to us that the second order cannot stand in its current form. It would indeed prevent the JEP from reporting the contents of this judgment. The Court has made it clear however that the original proceedings were rightly held in private and that the interests of justice require that the transcripts of those proceedings should not be placed in the public domain. Any publication of those transcripts would place the publisher at risk of proceedings for contempt of court.
56. We have considered whether we ought to discharge the second order and substitute reporting restrictions on a more limited scale so as to reinforce the obligation not to publish the transcripts or parts of them. Reporting restrictions are not generally imposed ex post facto in circumstances such as these. On balance we think it is sufficient to warn that any such publication would be at the risk of proceedings for contempt of court. Subject to that cautionary note we accept the submission of counsel for the JEP that the second order may now, given that the police investigation into the alleged conduct of Sheikh Hamad has been discontinued, be discharged. We so order.