R v Lucy Letby

Introduction

Lucy Letby is charged with 8 offences of murder and 10 of attempted murder. Although there are 18 counts on the indictment, there are 17 alleged victims as, in one case, a child is named as a victim of both a count of attempted murder and of murder. It is alleged that on various specified dates in 2015 and 2016, during her employment as a nurse, the defendant either deliberately killed or tried to kill 17 babies.

This is an application by the Prosecution (supported by the Defence) to maintain orders made under sections 45 and 46 of the Youth Justice and Criminal Evidence Act 1999 (“the YJCEA”), and to seek a further reporting direction in respect of a child who is a sibling of two alleged murder victims.

The s.45 order was made by a District Judge on 12 November 2020. The s.45 order prevents the reporting of any matter that would be likely to lead members of the public to identify any of the nine children named in counts 2, 6, 7, 8, 10, 13, 14, 15 and 18 as a person concerned in the proceedings. Each of these children was born in 2015 or 2016, is living, and is an alleged victim of attempted murder by the defendant.

The s.46 order, which is described as a holding order, was made by Dove J on 18 November 2020, varying a holding order made by HHJ Everett on 13 November 2020. The s.46 order prevents the reporting, until further order, of:

Mr Bunting represented eight media organisations (Footnote: ¹) (“the Media group”) which ask me to set aside or vary the s.46 order. The Media group also ask me to scrutinise with care the justification for the s.45 order, but they do not positively assert that it should be set it aside. However, Mr Johnson QC, leading Counsel for the Prosecution, drew my attention to the written submissions made by Pat Hurst, a reporter with PA Media (formerly the Press Association), seeking the revocation of the s.45 order.

In this ruling I have identified the children, living and deceased, who are alleged victims of the offences with which the defendant is charged, by reference to the count on the indictment in which their names appear. Similarly, I have identified the parents and siblings in respect of whom reporting restrictions are sought by reference to their relationships to the alleged victims of the numbered counts. I am conscious that referring to them in this way may appear to depersonalise a matter that is intensely personal for each of them, but I have fully in mind who they are and the evidence they (or in the case of the children, their parents) have given.

The legislative provisions

Section 45 of the YJCEA provides so far as relevant:

“(1)

This section applies (subject to subsection (2)) in relation to –

(a)

any criminal proceedings in any court … in England and Wales or Northern Ireland; …

(3)

The court may direct that no matter relating to any person concerned in the proceedings shall while he is under the age of 18 be included in any publication if it is likely to lead members of the public to identify him as a person concerned in the proceedings.

(4)

The court or an appellate court may by direction (“an excepting direction”) dispense, to any extent specified in the excepting direction, with the restrictions imposed by a direction under subsection (3) if it is satisfied that it is necessary in the interests of justice to do so.

(5)

The court or an appellate court may also by direction (“an excepting direction”) dispense, to any extent specified in the excepting direction, with the restrictions imposed by a direction under subsection (3) if it is satisfied –

(a)

that their effect is to impose a substantial and unreasonable restriction on the reporting of the proceedings; and

(b)

that it is in the public interest to remove or relax that restriction;

but no excepting direction shall be given under this subsection by reason only of the fact that the proceedings have been determined in any way or have been abandoned.

(6)

When deciding whether to make

(a)

a direction under subsection (3) in relation to a person, or

(b)

an excepting direction under subsection (4) or (5) by virtue of which the restrictions imposed by a direction under subsection (3) would be dispensed with (to any extent) in relation to a person,

the court or (as the case may be) the appellate court shall have regard to the welfare of that person.

(7)

For the purposes of subsection (3) any reference to a person concerned in the proceedings is to a person –

(a)

against or in respect of whom the proceedings are taken, or

(b)

who is a witness in the proceedings.

(8)

The matters relating to a person in relation to which the restrictions imposed by a direction under subsection (3) apply (if their inclusion in any publication is likely to have the result mentioned in that subsection) include in particular –

(a)

his name,

(b)

his address,

(c)

the identity of any school or other educational establishment attended by him,

(d)

the identity of any place of work, and

(e)

any still or moving picture of him.

(9)

A direction under subsection (3) may be revoked by the court or an appellate court.

(10)

An excepting direction—

(a)

may be given at the time the direction under subsection (3) is given or subsequently; and

(b)

may be varied or revoked by the court or an appellate court.

…” (emphasis added)

Section 46 of the YJCEA provides so far as relevant:

“(1)

This section applies where—

(a)

in any criminal proceedings in any court … in England and Wales or Northern Ireland, …

a party to the proceedings makes an application for the court to give a reporting direction in relation to a witness in the proceedings (other than the accused) who has attained the age of 18. In this section “reporting direction” has the meaning given by subsection (6).

(2)

If the court determines –

(a)

that the witness is eligible for protection, and

(b)

that giving a reporting direction in relation to the witness is likely to improve –

(i)

the quality of evidence given by the witness, or

(ii)

the level of co-operation given by the witness to any party to the proceedings in connection with that party's preparation of its case,

the court may give a reporting direction in relation to the witness.

(3)

For the purposes of this section a witness is eligible for protection if the court is satisfied –

(a)

that the quality of evidence given by the witness, or

(b)

the level of co-operation given by the witness to any party to the proceedings in connection with that party's preparation of its case,

is likely to be diminished by reason of fear or distress on the part of the witness in connection with being identified by members of the public as a witness in the proceedings.

(4)

In determining whether a witness is eligible for protection the court must take into account, in particular –

(a)

the nature and alleged circumstances of the offence to which the proceedings relate;

(b)

the age of the witness;

(c)

such of the following matters as appear to the court to be relevant, namely—

(i)

the social and cultural background and ethnic origins of the witness,

(ii)

the domestic and employment circumstances of the witness, and

(iii)

any religious beliefs or political opinions of the witness;

(d)

any behaviour towards the witness on the part of—

(i)

the accused,

(ii)

members of the family or associates of the accused, or

(iii)

any other person who is likely to be an accused or a witness in the proceedings.

(5)

In determining that question the court must in addition consider any views expressed by the witness.

(6)

For the purposes of this section a reporting direction in relation to a witness is a direction that no matter relating to the witness shall during the witness's lifetime be included in any publication if it is likely to lead members of the public to identify him as being a witness in the proceedings.

(7)

The matters relating to a witness in relation to which the restrictions imposed by a reporting direction apply (if their inclusion in any publication is likely to have the result mentioned in subsection (6)) include in particular –

(a)

the witness's name,

(b)

the witness's address,

(c)

the identity of any educational establishment attended by the witness,

(d)

the identity of any place of work, and

(e)

any still or moving picture of the witness.

(8)

In determining whether to give a reporting direction the court shall consider –

(a)

whether it would be in the interests of justice to do so, and

(b)

the public interest in avoiding the imposition of a substantial and unreasonable restriction on the reporting of the proceedings.

(9)

The court or an appellate court may by direction (“an excepting direction”) dispense, to any extent specified in the excepting direction, with the restrictions imposed by a reporting direction if—

(a)

it is satisfied that it is necessary in the interests of justice to do so, or

(b)

it is satisfied –

(i)

that the effect of those restrictions is to impose a substantial and unreasonable restriction on the reporting of the proceedings, and

(ii)

that it is in the public interest to remove or relax that restriction;

but no excepting direction shall be given under paragraph (b) by reason only of the fact that the proceedings have been determined in any way or have been abandoned.

(10)

A reporting direction may be revoked by the court or an appellate court.

(11)

An excepting direction—

(a)

may be given at the time the reporting direction is given or subsequently; and

(b)

may be varied or revoked by the court or an appellate court.

(12)

In this section—

…

(b)

references to the quality of a witness's evidence are to its quality in terms of completeness, coherence and accuracy (and for this purpose “coherence” refers to a witness's ability in giving evidence to give answers which address the questions put to the witness and can be understood both individually and collectively);

(c)

references to the preparation of the case of a party to any proceedings include, where the party is the prosecution, the carrying out of investigations into any offence at any time charged in the proceedings.” (emphasis added)

Section 52 of the YJCEA provides:

“(1)

Where for the purposes of any provision of this Chapter it falls to a court to determine whether anything is (or, as the case may be, was) in the public interest, the court must have regard, in particular, to the matters referred to in subsection (2) (so far as relevant).

(2)

Those matters are—

(a)

the interest in each of the following—

(i)

the open reporting of crime,

(ii)

the open reporting of matters relating to human health or safety, and

(iii)

the prevention and exposure of miscarriages of justice;

(b)

the welfare of any person in relation to whom the relevant restrictions imposed by or under this Chapter apply or would apply (or, as the case may be, applied); and

(c)

any views expressed—

(i)

by an appropriate person on behalf of a person within paragraph (b) who is under the age of 16 (“the protected person”), or

(ii)

by a person within that paragraph who has attained that age.

(3)

In subsection (2) “an appropriate person”, in relation to the protected person, has the same meaning as it has for the purposes of section 50.” (emphasis added)

The parents of the children who are the subject of the s.45 order are appropriate persons (within the meaning of s.52(2)) to whose expressed views regarding the welfare of those children the court must have regard.

For the purposes of ss.45 and 46, the definition of “publication” is provided in s.63 of the YJCEA:

““publication” includes any speech, writing, relevant programme or other communication in whatever form, which is addressed to the public at large or any section of the public (and for this purpose every relevant programme shall be taken to be so addressed), but does not include an indictment or other document prepared for use in particular legal proceedings” (emphasis added).

When exercising a power to impose a restriction on reporting what takes place at a public hearing in the criminal courts, the court must comply with rule 6.2 of the Criminal Procedure Rules 2020 (SI 2020/759) which provides:

“(1)

When exercising a power to which this Part applies, as well as furthering the overriding objective, in accordance with rule 1.3, the court must have regard to the importance of—

(a)

dealing with criminal cases in public; and

(b)

allowing a public hearing to be reported to the public.” (emphasis added)

The procedure to be followed when making an application for reporting restrictions is contained in rule 6.4 and following of the Criminal Procedure Rules.

The Criminal Procedure Rules are supplemented by the Criminal Practice Direction which provides:

“6B.1     Open justice is an essential principle in the criminal courts but the principle is subject to some statutory restrictions. These restrictions are either automatic or discretionary. Guidance is provided in the joint publication, Reporting Restrictions in the Criminal Courts issued by the Judicial College, the Newspaper Society, the Society of Editors and the Media Lawyers Association. The current version is the fourth edition and has been updated to be effective from May 2015.

…

6B.3     Before exercising its discretion to impose a restriction the court must follow precisely the statutory provisions under which the order is to be made, paying particular regard to what has to be established, by whom and to what standard.

6B.4     Without prejudice to the above paragraph, certain general principles apply to the exercise of the court's discretion:

(a)

The court must have regard to CrimPR Parts 6 and 18.

(b)

The court must keep in mind the fact that every order is a departure from the general principle that proceedings shall be open and freely reported.

(c)

Before making any order the court must be satisfied that the purpose of the proposed order cannot be achieved by some lesser measure e.g., the grant of special measures, screens or the clearing of the public gallery (usually subject to a representative(s) of the media remaining).

(d)

The terms of the order must be proportionate so as to comply with Article 10 ECHR (freedom of expression).

(e)

No order should be made without giving other parties to the proceedings and any other interested party, including any representative of the media, an opportunity to make representations.

(f)

Any order should provide for any interested party who has not been present or represented at the time of the making of the order to have permission to apply within a limited period e.g., 24 hours.

(g)

The wording of the order is the responsibility of the judge or Bench making the order: it must be in precise terms and, if practicable, agreed with the advocates.

(h)

The order must be in writing and must state:

(i)

the power under which it is made;

(ii)

its precise scope and purpose; and

(iii)

the time at which it shall cease to have effect, if appropriate.

(i)

The order must specify, in every case, whether or not the making or terms of the order may be reported or whether this itself is prohibited. Such a report could cause the very mischief which the order was intended to prevent.”

The current version of Reporting Restrictions in the Criminal Courts, referred to in CrimPD6B.2, was revised in May 2016 (“the Reporting Restrictions Guide”). I have had regard to it.

Open Justice

In In re British Broadcasting Corporation [2018] 1 WLR 6023, the Court of Appeal helpfully distilled the principles, as they emerge from the authorities, to be applied when determining an application for a reporting restriction. In re BBC was a case concerning a reporting restriction made pursuant to s.4(2) of the Contempt of Court Act 1981 to postpone publication on the grounds that it would create a substantial risk of prejudice to the administration of justice in those proceedings. The facts of that case are far removed from this one, as the reporting restriction (which the Court of Appeal held should not have been made) concerned an adult defendant. Nevertheless, the principles of open justice apply equally to applications made pursuant to ss.45 and 46 of the YJCEA.

Lord Burnett of Maldon CJ, giving the judgment of the court, said at [29]:

“When dealing with applications for reporting restrictions, the default position is the general principle that all proceedings in courts and tribunals are conducted in public. This is the principle of open justice. Media reports of legal proceedings are an extension of the concept of open justice.

(i)

In one of the first cases decided under the 1981 Act, Lord Denning MR noted that open justice and freedom of the press are “two of our most fundamental principles”: R v Horsham Justices, Ex p Farquharson [1982] QB 762, 793H. At common law, the court has no power to make an order postponing the publication of a report of proceedings conducted in open court; any such power must be conferred by legislation: Independent Publishing Co Ltd v Attorney General of Trinidad and Tobago [2005] 1 AC 190, para 67, per Lord Brown of Eaton-under-Heywood.

(ii)

Attending court in person is not practical for any but a handful of people, and live-streaming and broadcasting of court proceedings remain restricted. The only way that citizens can be informed about what takes place in most of our courts is through media reports. In that way the media serve both as the eyes and ears of the wider public and also as a watchdog: In re S [2005] 1 AC 593, para 18, per Lord Steyn.

(iii)

Full contemporaneous reporting of criminal trials (and other legal proceedings) promotes public confidence in the administration of justice and the rule of law: In re S, para 30.

(iv)

On a practical level, the public nature of court hearings (and media reports of them) fulfils several objectives: (1) it enables the public to know that justice is being administered impartially; (2) it can lead to evidence becoming available which would not have been forthcoming if reports are not published until after the trial has completed or not at all; (3) it reduces the likelihood of uninformed or inaccurate comment about the proceedings, and (4) it deters inappropriate behaviour on the part of the court (and, we would add, others participating in the proceedings): R v Legal Aid Board, Ex p Kaim Todner [1999] QB 966, 977E–G, per Lord Woolf MR.

(v)

On the rare occasions when a court is justified in sitting in private, both the public and media are prevented from accessing the proceedings altogether. Reporting restrictions are different. The proceedings are there to be seen and heard by those who attend court, but they cannot be reported. Reporting restriction orders, albeit not as great a departure from open justice as the court sitting in private, are nevertheless “direct press censorship”: Khuja v Times Newspapers Ltd [2017] 3 WLR 351, para 16, per Lord Sumption JSC.

(vi)

Reporting restrictions orders are therefore derogations from the general principle of open justice. They are exceptional, require clear justification and should be made only when they are strictly necessary to secure the proper administration of justice: Practice Guidance (Interim Non-disclosure Orders) [2012] 1 WLR 1003, para 10; they are measures of last resort: In re Press Association [2013] 1 WLR 1979, para 13, per Lord Judge CJ.

(vii)

Any derogation from open justice must be established by clear and cogent evidence: Scott v Scott [1913] AC 417, 438–439 per Viscount Haldane LC; Practice Guidance (Interim Non-disclosure Orders [2012] 1 WLR 1003, para 13.” (emphasis added)

In re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593 concerned an application for a reporting restriction in the context of criminal proceedings in which a mother was charged with the murder of her son. A reporting restriction was sought to protect the identity of a surviving child who was the son of the defendant and the younger brother of the alleged murder victim. Lord Steyn (with whose opinion Lords Bingham, Nicholls, Hoffmann and Carswell agreed) described the interplay between articles 8 and 10 of the European Convention on Human Rights (“the ECHR”) at [17]:

“First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test.” (Lord Steyn’s emphasis.)

Having referred to the existence of numerous automatic or discretionary reporting restrictions, Lord Steyn continued:

“20.

… Given the number of statutory exceptions, it needs to be said clearly and unambiguously that the court has no power to create by a process of analogy, except in the most compelling circumstances, further exceptions to the general principle of open justice.

21.

Section 39 of the Children and Young Persons Act 1933 is of particular relevance. It provides:

“(1)

In relation to any proceedings in any court … the court may direct that – (a) no newspaper report of the proceedings shall reveal the name, address, or school, or include any particulars calculated to lead to the identification, of any child or young person concerned in the proceedings, either as being the person by or against or in respect of whom the proceedings are taken, or as being a witness therein; (b) no picture shall be published in any newspaper as being or including a picture of any child or young person so concerned in the proceedings as aforesaid; except in so far (if at all) as may be permitted by direction of the court.” (Emphasis supplied)

This provision will be replaced by section 45 of the Youth Justice and Criminal Evidence Act 1999, which is not yet in force; see also section 46(3) of the same Act which came into force on 7 October 2004. For present purposes section 45 is in material respects the same as the extant section 39(1): see section 45(3). As the words which I have italicised make clear section 39(1) is not engaged in the present case. My reason for referring to it is, however, the reflection that, in regard to children not concerned in a criminal trial, there has been a legislative choice not to extend the right to restrain publicity to them. This is a factor which cannot be ignored.” (Emphasis added)

The approach which the House of Lords adopted is applicable. The outcome, however, depends on an intense focus on facts. As Mr Johnson rightly emphasised, a crucial distinction is that protecting the identity of the child in In re S would have had the effect of prohibiting the publication of the identity of the adult defendant, whereas in this case neither the purpose nor the effect of any of the orders sought restricts the reporting of the identity of the accused. In addition, the application in In re S was not made pursuant to s.45 (which was not yet in force, albeit it would have been inapplicable for the same reasons that s.39 was inapplicable) or s.46 (which came into force only a few days before the hearing of the appeal in the House of Lords).

Mr Bunting (and Mr Hurst of PA Media) drew attention to the importance of the media being able to identify individuals, as explained by Lord Rodger of Earlsferry JSC (giving the judgment of the Supreme Court) in In re Guardian News and Media Ltd [2010] 2 AC 697 at [63]:

“What’s in a name? “A lot”, the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature. And this is why, of course, even when reporting major disasters, journalists usually look for a story about how particular individuals are affected. Writing stories which capture the attention of readers is a matter of reporting technique, and the European court holds that article 10 protects not only the substance of ideas and information but also the form in which they are conveyed …”

In In re S Lord Steyn observed at [34] that

“from a newspaper’s point of view a report of a sensational trial without revealing the identity of the defendant would be a very much disembodied trial. If the newspapers choose not to contest such an injunction, they are less likely to give prominence to reports of the trial. Certainly, readers will be less interested and editors will act accordingly. Informed debate about criminal justice will suffer.”

As I have said, that is not this case. None of the reporting directions sought have any impact on the publication of the identity of the defendant. But the importance to the media of being able to write human stories about identified individuals is a significant factor to be weighed in the balance.

Richard Burgess, the UK News Editor for BBC News, has given evidence on behalf of the Media group. He states:

“The orders sought would make it very difficult to report this case in a way which would be understandable to our audience. We are likely to end up with an ‘alphabet soup’ of monikers for individuals featured in the case e.g. ‘baby A’. Given the large number of alleged victims and parents involved, this will create a confusing and potentially misleading picture.

I understand that the prosecution seek orders which not only prohibit the identification of the parent witnesses but in addition would prevent us reporting details about the witnesses’ medical conditions and professions which the prosecution say are likely to be evidentially relevant. This means that a significant amount of detail will be lost from reports of proceedings, making it very difficult for us to give audiences sufficient information about the evidence in order for them to follow the case or have an understanding as to how the verdict was arrived at.”

The nature and alleged circumstances of the offences

The Prosecution submit that the nature and context of the allegations are such that these proceedings have a truly exceptional capacity to generate glaring publicity, irrespective of the ultimate outcome. The evidence given by the parents in support of these applications attests to the widespread publicity given to this case in the brief period following the magistrates’ court hearing before the s.46 order was made.

To similar effect, Mr Hurst of PA Media submitted “this is an extra-ordinary case, it would not be wrong to use the word sensational. This case has already attracted publicity globally with reports in publications from the New York Post to The Australian”. Mr Bunting does not demur from the Prosecution’s description of this case as one with a truly exceptional capacity to generate glaring publicity. On the contrary, he draws a comparison with cases as notorious as R v Thompson and Venables who were convicted of the murder of James Bulger.

It is self-evident, in my view, that a case in which it is alleged that a young woman, while working as a nurse in a hospital, murdered or attempted to murder 17 babies, is bound to attract a truly exceptional level of media coverage.

Section 45 of the YJCEA

The Prosecution seek to maintain the order, made pursuant to s.45 of the YJCEA, which provides that no matter relating to each of the nine children named in counts 2, 6, 7, 8, 10, 13, 14, 15 and 18 shall while he/she is under the age of 18 be included in any publication if it is likely to lead members of the public to identify him/her as a person concerned in the proceedings.

Under s.45 of the YJCEA a criminal court can restrict the reporting of the identity of a juvenile defendant, victim or witness in adult criminal proceedings. Such anonymity will last until that person reaches the age of 18. Under s.45A a life-long reporting restriction may be made to protect juvenile victims and witnesses (but not defendants). No application has been made pursuant to s.45A, no doubt because the requirements of s.45A(5) would not be met in circumstances where none of the alleged victims – in view of their very young ages at the time of the alleged offences – are witnesses or persons whose cooperation in connection with the proceedings is sought.

In respect of juvenile defendants, the UN Standard Minimum Rules for the Administration of Justice 1985 (the Beijing Rules) require the protection of their identity “to avoid harm being caused to him or her by undue publicity or by the process of labelling”. The Prosecution submit that there should not be lesser protection from undue publicity and labelling for young victims.

Each of these children is an alleged victim of attempted murder. Accordingly, each of them falls within the definition of a “person concerned in the proceedings” (s.45(7)) because each is “a person … in respect of whom the proceedings are taken”.

I am required to have regard to the welfare of each of these children (s.45(6) and 52(2)) and the views expressed by their parents (s.52(2)). I also have to weigh their right to privacy under article 8 of the ECHR – as interpreted through international instruments such as the UN Convention on the Rights of the Child, article 3 of which requires the court to take into account the best interests of the child as a primary consideration (albeit not necessarily one that prevails over all other considerations) – against the interests of open justice and freedom of expression to which I have referred.

They were all born in 2015 or 2016. Currently, they are four or five years old. All will be of school age, and some may reach the age of seven, before the trial concludes. I have not set out the views expressed by each of their parents, but I have considered in depth what they have each said. Perhaps the most prominent factor is the profound concern they express that their children should not have their lives shaped and defined by being identified and labelled, and the focus of glaring publicity, as attempted murder victims in these proceedings. While there is, of course, no stigma attached to being a victim or alleged victim of attempted murder, the concern that this could become a defining part of their identity while they are still very young is real and readily understandable.

In my judgment, it is manifest that a reporting direction pursuant to s.45 prohibiting the publication of any matter likely to lead members of the public to identify them as alleged victims in these criminal proceedings is strongly in the best interests of each of these young children. I am satisfied that the welfare of each of these children, and their article 8 rights, outweighs the strong public interest in open justice and the interests protected by article 10.

A reporting direction made pursuant to s.45(3) includes a restriction on reporting the matters specified in s.45(8) (including the child’s name, address, school and any still or moving picture of him/her), if the inclusion of any such matter in a publication is likely to lead to the child’s identification as a person concerned in these proceedings. The qualification is important to ensure that if, say, a child wins a school prize, a local newspaper would not be breaching the s.45 order by identifying the child’s achievement because doing so would not identify the child as a person concerned in these proceedings.

The list of matters identified in s.45(8) is not exhaustive. The primary obligation is not to include in any publication any matter relating to the child if it is likely to lead members of the public to identify him/her as a person concerned in the proceedings. In order to comply with this obligation, as the Reporting Restrictions Guide explains at p.36, “[i]t is routine for in-house lawyers to check what information is already in the public domain before advising on whether a report of court proceedings is likely to breach any legal requirement”.

Other matters that are likely to lead to the child’s identification as a person concerned in these proceedings are:

The two deceased children who are the subjects of counts 16 and 17 were, together with their surviving sibling, triplets. The Prosecution have applied pursuant to s.45 for an order to protect the identity of the surviving triplet. However, an order can only be made pursuant to s.45 in respect of a “person concerned in the proceedings” as defined in s.45(7). The surviving triplet is not the subject of any of the counts, therefore he is not a person “in respect of whom the proceedings are taken” (i.e. an alleged victim). Nor is he, of course, a person “against … whom the proceedings are taken” (i.e. a defendant) or a witness in the proceedings.

As Mr Johnson acknowledged during the course of the oral hearing, in view of the definition in s.45(7), s.45 is not a route by which the identity of the surviving triplet can be protected. I consider his position further below in the context of his parents’ applications pursuant to s.46.

Section 46 of the YJCEA

Section 46 of the YJCEA gives the court power to protect the identity of adult witnesses (other than the accused) in criminal proceedings. For the power to apply, the court must be satisfied that the quality of evidence given by the witness, or his/her level of cooperation with the preparation of the case, is likely to be diminished by reason of his/her fear or distress in connection with being identified by members of the public as a witness in the proceedings; and that making a reporting direction (as defined in s.46(6)) is likely to improve the quality of evidence or level of cooperation he/she gives.

Where such an order is made, it prohibits the publication of any matter relating to the witness (including the witness’s name, address, identity of any place of work, and any still or moving picture of the witness) if it is likely to lead members of the public to identify him/her as being a witness in the proceedings.

There are 13 sets of parents of the 17 alleged victims in this case. They are all witnesses in the proceedings, save for one father of an alleged victim of murder who is described in the evidence as having been “too traumatised to participate in proceedings and to provide statements”. The Prosecution have made applications on behalf of all 25 parents who are witnesses.

On the face of the applications, they all seek to prohibit reporting of (i) the witness’s name; (ii) the witness’s address; (iii) the identity of any place of work; and (iv) any other detail that “might tend” to identify him/her as a witness in these proceedings. As Mr Johnson recognised, the words “might tend” misstate the test which is whether a matter “is likely” to lead members of the public to identify the person as being a witness in the proceedings.

In addition, some of the applications seek to prohibit reporting of:

The holding order made pursuant to s.46 goes further than is sought in the written applications. It provides:

“There shall be no reporting of

Mr Johnson made clear that he seeks to maintain this order and he did not shy away from seeking to prevent the names of any of the alleged victims, living or deceased, being reported. He recognised that the focus of s.46 is on matters likely to identify the adult witness. Nevertheless, he relied on In re ITN News Ltd [2014] 1 WLR 199 as demonstrating that a s.46 order may also restrict the identification of children where their identification would lead to the identification of the adult witness. I accept that it may do so: see [29] of In re ITN News and the Reporting Restrictions Guide at p.24.

Mr Bunting sought to rely on the lack of reporting restrictions preventing the identification of parent witnesses in a number of notorious cases. However, none of the cases to which he referred were ones where s.46 was available, whether because the cases pre-dated the coming into force of that provision, or because they did not concern prosecution before a criminal court.

The five sets of parents of the six children who are the subject of counts 3, 4, 9, 12 (and 11), and 16 and 17, have suffered the death of a child, or two children in the case of the parents of the children who are the subjects of counts 16 and 17, in circumstances where the children are alleged victims of murder in these proceedings. None of these parents have any children in respect of whom a s.45 order has been made. The full names of the deceased children who are the subject of these murder counts were published following the magistrates’ court hearing.

Each of these five sets of parents is grieving. They all have living children of school age, who are not alleged victims in these proceedings, whose identities they seek to protect by protecting their own.

As one parent has put it,

“The distress that the death of our son and the subsequent investigation has caused us is difficult to describe. There are not words that would do the pain justice. Media publication of his or our names is going to significantly affect my ability to cope with what is already going to be a very distressing time. I also feel that identifying us in the press will make it more difficult to protect our children from this, as they are currently too young to understand.”

Another parent says:

“Giving evidence and re-living the most painful and indescribable anguish that we have endured will be one of the greatest challenges of my life but it is something that I feel is vitally important. I want to feel able to assist in all ways possible and am very concerned that stresses caused by any reporting of our lives and [our deceased son] will affect my ability to do this.”

Although they each give evidence in their own words of their distress at the reporting regarding their deceased children, and their fear of the impact that intense press reporting will have on their ability to give evidence to the best of their ability, the essential thrust is to the same effect as the evidence I have quoted.

I should make clear that, while their distress at the reporting that has taken place is readily understandable, there is no evidence that it was unlawful or in breach of any code. There was no order in place preventing the reporting of the names of these deceased children (either directly or indirectly) at the time when their names were published.

I am satisfied, having regard to the views expressed by each of these nine witnesses, that the quality of evidence given by the witness is likely to be diminished by reason of fear or distress on the part of the witness in connection with being identified by members of the public as a witness in the proceedings. Naturally, in each case the witness’s fear and distress is focused primarily on the impact their own identification would have on their children, but it is nonetheless a qualifying fear/distress regarding their own identification, and it is likely that a reporting direction would improve the quality of their evidence.

In respect of each of these nine witnesses, I shall give a reporting direction that no matter relating to the witness shall during the witness's lifetime be included in any publication if it is likely to lead members of the public to identify him/her as being a witness in the proceedings. The reporting direction applies to each of the matters referred to in s.46(7) (including the witness’s name, address, the identity of any place of work and any still or moving picture of the witness). In addition, the Reporting Restrictions Guide makes clear that the media are alert to the need to consider what information is already in the public domain when determining whether what they publish is likely to lead to a person who is protected by a reporting direction being identified as a witness in the proceedings: see paragraph ‎5.9 above.

Is the name of the deceased child (or children) a matter that is likely to lead members of the public to identify the parent as being a witness in the proceedings? In my judgment, the surnames of each of the deceased children who are the subject of counts 3, 4, 9, 12 (and 11), and 16 and 17 would be likely to lead to the identification of their parents as witnesses and should be made subject to a reporting direction pursuant to s.46. However, their first names alone are unlikely to do so. I recognise that media reports which refer to their deceased children by their first names are likely to distress their parents, even if they are not likely to lead them being identified by the general public. Nevertheless, bearing in mind that Parliament’s aim in enacting ss.45 and 46 was not to protect the identity of deceased victims, and striking a fair balance between articles 8 and 10, and the interests of privacy and of open justice, I consider that s.46 does not extend so far as to prohibit the reporting of the first names of the witnesses’ deceased children.

The parents of the deceased children who are the subject of counts 3, 4 and 12 (and 11) seek to include their professions as matters that are prohibited from being reported. There is powerful evidence as to the importance of one parent, who is a GP, not being identified as a witness in the proceedings, in part because of the impact such identification would have on patients. But I am not persuaded on the evidence before me that reporting that one of the witnesses whose child is an alleged murder victim is a GP, while prohibiting the identification of the witness, is likely to lead to the identification of that witness, given that there are many GPs. I have also borne in mind that the fact that one of the parents is a GP is likely to be material evidence in the trial.

Other witnesses who have sought a reporting direction covering their profession have not explained why, if their identity is otherwise protected, publication of their profession would be likely to lead to their identification. Amongst the witnesses in this group who have sought to restrict publication of their profession, one is a builder, one is in customer service, one is an aircraft fitter and two have not identified their profession. On the limited evidence before me I cannot conclude that their professions would be likely to lead to their identification. However, as I have said, and as the Reporting Restrictions Guide recognises, what is likely to lead to witnesses being identified has to be assessed by reference to what other information is in the public domain.

The mother of the deceased child who is the subject of count 4 seeks to prohibit publication of her nationality. There is no cogent evidence before me that publication of the witness’s nationality would be likely to lead to her identification.

The mother of the deceased child who is the subject of count 9 seeks to prohibit publication of the names of her children and her partner (who is not a witness). It is likely that the witness’s partner will be referred to at trial, as he is the father of the deceased child, and, in my view, his identification would be likely to lead to the witness’s identification. It is less clear whether there will be any reason to refer to the witness’s other children at trial. In general, it seems to me that reference in connection with these proceedings to the names of a witness’s living children are matters that would be likely to lead to the identification of the witness.

The parents of the deceased children who are the subject of counts 16 and 17 seek to restrict publication of the natural circumstances of their sons’ conception, the fact that they were identical triplets, and the identity of the surviving triplet (who, as I have said, is not an alleged victim). It is very likely that the surviving triplet will be referred to in evidence at trial. In my view, if the surviving triplet were to be identified in connection with these proceedings, that would be likely to lead to the identification of his parents. So the identity of the surviving triplet is a matter that will be protected from publication pursuant to the reporting direction made under s.46. However, the fact that they were naturally conceived identical triplets is not a matter which, on the evidence before me, would be likely to lead to the identification of the surviving triplet or his parents.

The children who are the subject of counts 1 and 2 were twins, one of whom died and is the subject of a murder charge, the other survived and is the subject of an attempted murder charge. Similarly, the children who are the subject of counts 5 and 6 were twins, both are alleged victims, one of whom died and one of whom survived. The identities of the living children who are the subjects of counts 2 and 6 are directly protected by the s.45 order. As I have said in para ‎5.9 above, the identities of their parents, and the surnames of the deceased children who are the subjects of counts 1 and 5, are protected pursuant to s.45.

In addition, having regard to the evidence adduced by these four parents, and for the reasons I have given in paragraphs ‎6.11 to ‎6.17 above (subject to the distinction that the surnames of their deceased children ought not to have been published given the s.45 order that was in place), I am satisfied that a reporting direction should be made pursuant to s.46 in respect of each of these four witnesses. Each of these parents is affected in the same way as those I have referred to above who are grieving the loss of children who are alleged to have been murdered, with the additional anxiety in their cases stemming from the fact that they have living children who are alleged victims and who they fear may be identified and become defined as such.

I shall give a reporting direction, in respect of each of these four witnesses, that no matter relating to the witness shall during the witness's lifetime be included in any publication if it is likely to lead members of the public to identify him/her as being a witness in the proceedings. The reporting direction applies to each of the matters referred to in s.46(7) (including the witness’s name, address, the identity of any place of work and any still or moving picture of the witness). It also covers the surnames of the deceased children who are the subject of counts 1 and 5.

I note that the parents of the children who are the subjects of counts 1 and 2 have expressed concern about testifying without reporting restrictions in view of, amongst other matters, the details of the mother’s medical condition (including a blood disorder) that feature at length in the Prosecution evidence. This is a factor which weighs in favour of making the s.46 order. It is not a reason to prohibit publication of the evidence regarding the mother’s medical condition and blood disorder as those are not matters that, in themselves, are likely to lead to the identification of either of the parents. Nor do I read the parents’ applications as seeking to prohibit such publication if their identities are protected.

The fathers in both these cases have also sought a restriction in respect of their professions. One describes himself as a telecoms engineer and the other has not identified his profession. Neither have explained why they consider disclosure of their profession would be likely to lead to their identification. The conclusion I have reached at paragraph ‎6.19 above applies equally to these applications.

In this section I address the position of the final six sets of parents of the seven children who are the subjects of counts 7, 8, 10, 13 & 14, 15 and 18. As I have explained above, the identities of these children are all directly protected, and will continue to be protected, pursuant to a s.45 reporting direction. In addition, the identities of these parents are indirectly protected by the s.45 reporting direction (see para ‎5.10.1 above).

I am also satisfied, having regard to the views expressed by each of these witnesses (directly or as reported by a police officer), that the quality of evidence given by each of these witnesses is likely to be diminished by reason of fear or distress on the part of the witness in connection with being identified by members of the public as a witness in the proceedings, and it is likely that a reporting direction would improve the quality of their evidence. Naturally, in each of these cases, too, the witness’s fear and distress is focused primarily on the impact their own identification would have on their children, a matter I have addressed in the context of s.45. Nonetheless, it is a qualifying fear/distress regarding their own identification, and it is likely that a s.46 reporting direction would improve the quality of their evidence.

Accordingly, I shall give a reporting direction in respect of these 12 parents, too, that no matter relating to the witness shall during the witness's lifetime be included in any publication if it is likely to lead members of the public to identify him/her as being a witness in the proceedings. The reporting direction applies to each of the matters referred to in s.46(7) (including the witness’s name, address, the identity of any place of work and any still or moving picture of the witness).

The parents of the child who is the subject of count 7 have sought a restriction prohibiting publication of the circumstances of their daughter’s gestation and birth. Such a restriction would significantly inhibit the ability of the media to report the evidence and, in my judgment, it is not a matter that would be likely to lead to the identification of either parent. The mother also seeks a restriction in respect of her nationality, but that too is not a matter which, on the evidence before me, is likely to lead to the witness’s or her daughter’s identification. The father seeks a restriction in respect of his profession, which is not identified. On the evidence before, there is no basis to conclude publication of his profession would lead to his identification.

The parents of the child who is the subject of count 8 also seek restrictions in respect of the father’s profession (which is not specified) and the mother’s medical condition. For the reasons I have given, on the evidence before me, these are not matters that are likely to lead to the parents’ identification.

The parents of the children who are the subject of counts 10, 13 and 14, 15 and 18 all also seek restrictions in respect of publication of their professions (which are either not specified or, in some cases, given as “housewife”). Again, I am not persuaded on the evidence before me that such details are likely to lead to the identification of the witnesses.

The parents of the children who are the subject of counts 13 and 14 also seek to prohibit publication of their ethnicity. As with nationality, publication of a person’s ethnicity is not a matter that is likely, without more, to lead to a person’s identification.

The parents of the child who is the subject of count 18 also seek a restriction in respect of the circumstances of the child’s gestation and to prevent publication of any reference to an earlier death of a sibling. In my judgment, the surname of the deceased sibling should be protected from publication, but save to that extent these are not matters that, on the evidence before me, are likely to lead to the identification of the parents as witnesses in the proceedings.

Conclusion

I am satisfied that reporting directions should be made pursuant to ss.45 and 46. The effect of the reporting directions will not mean that any of the alleged victims or witnesses will be anonymous during the course of the trial in open court or any proceedings in this matter. The proceedings will be there to be seen and heard by those who attend court, but the reporting directions sought will place restrictions on that which can be reported.

I have circulated a draft order to the Prosecution, Defence and the Media group. Once I have received any suggested amendments, I will finalise the order. In the meantime, the holding reporting restrictions remain in force.