A Council v M & Ors (Judgment 3: Reporting Restrictions)

This is an application for a reporting restriction order (‘RRO’) preventing the identification of the members of a family in connection with matters which are the subject of care proceedings and criminal proceedings.

The application for the RRO is broadly supported by the parties to the care proceedings. It is opposed by three national media organisations: Guardian News & Media Ltd. (publishers of The Guardian and The Observer), Associated Newspapers Ltd. (publishers of The Daily Mail, The Mail on Sunday, and Metro) and Times Newspapers Ltd. (publishers of The Times and The Sunday Times).

The contentious issue is not whether a RRO should be made, but what its scope should be, and in particular whether it should exceptionally prevent the naming of the defendant in criminal proceedings.

The family members are

The children are known by M’s surname, which is similar to F’s. M and B’s home and the foster homes are in the same county.

Care proceedings in relation to the four children (A then being 17) began in August 2011, immediately after the birth of D.

On 21 February 2012, I made a reporting restriction order preventing the public identification of family members. In accordance with FPR 2010 PD 12I, the order broadly followed the standard form of order annexed to the Practice Note: Applications for Reporting Restriction Orders (18 March 2005).

In March 2012, a fact-finding hearing concluded, at which the local authority established that M had been the perpetrator of serious abuse. In a judgment given at the time I found that:

M denied the local authority’s allegations. In particular, she claimed that A had become pregnant as a result of sexual activity of which M was unaware, or that A must have got hold of sperm that M had bought for her own use and inseminated herself without M’s knowledge. M’s stance meant that A had to give evidence, during which she was accused of being a fabricator and a fantasist by her mother.

Following the fact-finding hearing, M was charged with five offences of child cruelty. She has now been committed to the Crown Court for trial, and her first appearance there will be early next month.

The criminal charges are:

M says that she intends to plead guilty to counts 2, 3 and 4. She denies mistreatment of C.

It is not clear whether M’s plea will be accepted. Although she now admits that her previous accounts were untruthful, her basis of plea is at variance with the facts found by this court. In particular, she continues to assert that she herself was trying to become pregnant and will apparently say that the insemination was A’s idea, and that her offence was to go along with it.

Proof of the allegations rested on A’s evidence, which I accepted. It is not presently clear whether A will have to give evidence again in the criminal proceedings.

On 17 May, following the charging of M, I amended the reporting restriction order to prevent the naming of the family in any reporting of the criminal proceedings. I directed that this was to be reviewed at a further hearing at the end of the care proceedings in July. The exceptional and temporary nature of the order was emphasised in the body of the order.

The significant change from the February order was the omission of the conventional proviso exempting the reporting of proceedings held in public, which read:

“publishing information relating to any part of a hearing in a court in England and Wales (including a coroner's court) in which the court was sitting in public and did not itself make any order restricting publication;”

It is the removal of this proviso that is particularly contentious. The media organizations object to what they describe as “the width and unprecedented nature of the Order sought.”They say that it renders any story arising from the criminal proceedings “effectively unreportable”.

Lastly, in the care proceedings, final orders in relation to B and C were made this week. A final order will be made in relation to D in October.

As it happens, the original application for a RRO was brought by the local authority, while the application for a further order was made by A. The identity of the applicant is of no more than nominal significance.

The local authority, which has no history of seeking RROs and wishes to pursue the policy issues lying behind this case with vigour, seeks the fullest protection for the younger family members. In this it is supported by all other parties to the proceedings, including the Guardians for the three children. It is natural that these parties should take a broadly similar view, and, as ever, such unanimity reminds the court to look carefully at the arguments the other way.

These have been set out by Ms Caoilfhionn Gallagher in a comprehensive skeleton argument on behalf of the media organisatons. The thrust of her argument is that the order sought is too wide and too long, and in particular that the case for interfering with the right to report the criminal trial has not been made out. She also raises issues about procedural matters, but by the time of the hearing acknowledged that the media organisations had had the opportunity to consider the evidence on which the application was based.

For reasons of economy, the media organisations did not instruct Ms Gallagher to appear at the hearing. This inevitably limited the court’s ability to test some of her submissions, and her ability to contribute to the framing of the order, which was nonetheless approached with her submissions well in mind.

In the circumstances of this case, Articles 8 and 10 of the European Convention on Human Rights and Fundamental Freedoms 1950 are engaged.

Section 12(4) of the Human Rights Act 1998 provides that :

There is no dispute that the High Court has jurisdiction to make an order restraining publicity. The definitive statement of principle about how these issues should be approached is found in the decision in Re S (A Child) (Identification: Restriction on Publication) [2005] 1 AC 593. As is well-known, the House of Lords held that an intense focus on the comparative importance of the competing ECHR rights under Articles 8 and 10 was required, with neither Article having presumptive weight over the other and with the proportionality test to be applied to each.

The facts in Re S were that a mother was charged with poisoning a nine-year old child. Care proceedings followed in relation to his eight-year old brother, who was placed with his father. An application was made for an order that would have the effect of preventing the naming of the mother or deceased child in reports of the mother’s trial. It was held in each court that the Article 8 rights of the child were outweighed by the importance of open reporting of criminal proceedings – despite the distress to him, and the possible long-term impact upon his development.

Since Re S was decided, its analysis has been applied to all applications of this kind. Consequently, a conclusion that the Art. 8 rights of individuals should prevail over the Art. 10 rights of the public so as to restrict the reporting of criminal proceedings will be highly exceptional, though not beyond contemplation.

I have also been referred to the only reported occasion of an order being granted to restrain publication of the identity of a defendant in a criminal trial. This was the decision of the former President, Sir Mark Potter, in A Local Authority v W [2005] EWHC 1564 (Fam). The mother, who had two children, was charged with knowingly infecting the father of one of them with the HIV virus. It was likely that one of the children had also been infected. There was strong evidence that if this became known in the local community, the child’s situation would become impossible. The judge granted an order restraining publication of the identity of the mother, even though the children who were not directly involved in the trial.

I have also been assisted by the decisions of the Court of Appeal in Re Trinity Mirror Plc [2008] 2 Cr. App. R. 1, and of Baker J in A Local Authority and Others v. News Group Newspapers Ltd., Mirror Group Newspapers Ltd. and Newsquest Ltd [2011] EWHC 1764 (Fam).

In Trinity Mirror the Court of Appeal overturned a Crown Court order under s.11 Contempt of Court Act 1981 which, in the interests of the defendant’s children, prevented the naming of a defendant who had downloaded paedophile images.

The decision of Baker J in A Local Authority and Others v. News Group Newspapers Ltd is a recent example of the balance falling in the other, and more common, direction. He declined to make an order restricting the publication of the names of a surviving child’s adult family members, including that of a very vulnerable mother who had been charged with the murder of another child. An order protecting the surving child was made by agreement. A feature (see paragraph 73 of the judgment) was the fact that there had already been substantial publicity about the case.

I have extracted key passages from these decisions at Annex 1 to this judgment.

There are strong arguments against any restriction being placed on the reporting of M’s criminal trial:

Moreover, although it is not an issue in the criminal proceedings, there is also a genuine public interest in being informed about a case of unregulated adoption from abroad, as occurred in C’s case.

The importance of open justice is epitomised by these statements by Lord Judge LCJ in Trinity Mirror:

“In our judgment it is impossible to over-emphasise the importance to be attached to the ability of the media to report criminal trials. In simple terms this represents the embodiment of the principle of open justice in a free country. An important aspect of the public interest in the administration of criminal justice is that the identity of those convicted and sentenced for criminal offices should not be concealed. Uncomfortable though it may frequently be for the defendant that is a normal consequence of his crime. Moreover the principle protects his interests too, by helping to secure the fair trial which, in Lord Bingham of Cornhill's memorable epithet, is the defendant's "birthright". From time to time occasions will arise where restrictions on this principle are considered appropriate, but they depend on express legislation, and, where the Court is vested with a discretion to exercise such powers, on the absolute necessity for doing so in the individual case.

It is sad, but true, that the criminal activities of a parent can bring misery, shame, and disadvantage to their innocent children. Innocent parents suffer from the criminal activities of their sons and daughters. Husbands and wives and partners all suffer in the same way. All this represents the further consequences of crime, adding to the list of its victims. Everyone appreciates the risk that innocent children may suffer prejudice and damage when a parent is convicted of a serious offence … If the court were to uphold this ruling so as to protect the rights of the defendant's children under Article 8, it would be countenancing a substantial erosion of the principle of open justice, to the overwhelming disadvantage of public confidence in the criminal justice system, the free reporting of criminal trials and the proper identification of those convicted and sentenced in them. Such an order cannot begin to be contemplated unless the circumstances are indeed properly to be described as exceptional.”

A restriction on reporting the identity of a defendant to criminal proceedings can therefore can onlybe contemplated where there is an “absolute necessity” and where the circumstances can properly be described as “exceptional”.

Ms Gallagher rightly argues that alternatives that are less restrictive than a RRO should be considered.

There are three possible powers that might be exercised by the Crown Court:

S.39(1) Children and Young Persons Act 1933 allows the Crown Court to provide protection to children concerned in the proceedings:

It is well-established (see e.g. R v Southwark Crown Court ex p Godwin and others [1992] QB 190) that s.39 does not empower the Crown Court to make an order that a defendant's name should not be published but that, in practice, judges may indicate a view that identification of one person may have the effect of identifying another.

Next, s.11 of the Contempt of Court Act 1981, provides that:

Lastly, s.46 of the Youth Justice and Criminal Evidence Act 1999 allows the Crown Court to restrict reports about a vulnerable adult witness in criminal proceedings. There is a detailed statutory framework governing the making of such orders.

In the present case, the Crown Prosecution Service has obtained an order under s.39 CYPA in relation to C, but does not intend to apply for any other orders.

My conclusion is that, in the circumstances of this case, these powers are insufficient to protect the position of the younger family members.

I find that there is a substantial likelihood that, if M’s name were widely known and pictures of her published, other family members would readily be identified in their local communities. It is likely that M’s criminal trial, which will take place in the local Crown Court, will attract considerable media interest, mainly because of the extraordinary facts, but also because of the issues of public interest. B currently lives with M and the foster placements where A, D and C live are within the county. The younger family members bear M’s surname. The three girls have a distinctively ethnic appearance in an area of the country that is not ethnically diverse. A and B are among the few children adopted from country X. B is the only student from that country in her college and C is one of the very few children in the country to have been adopted from country Y.

Any assessment must therefore be based on the premise that the identification of the mother will probably bring about the identification of one or more of the younger family members.

One of the matters to which the court must have particular regard (s.12(4)(a)(i) HRA) is the extent to which the material has, or is about to become, public.

There has so far been no general publicity about this family.

There have however been breaches of the clear terms of the RRO of 17 May 2012 – by M. On 21 June, she accessed a website entitled “Secret World of Child Protection” and wrote a long and wilfully misleading account of the removal of the children, clearly identifying herself and C. On 24 June, she opened a protected Twitter account entitled “Freedom for [C’s initials and surname]”.

The local authority became aware of these publications in early July and it took steps with M’s co-operation to have the website posting removed and the Twitter account closed. An internet search under M’s name now produces no information of relevance about the family.

I conclude that the extent to which the material has become public is negligible. The local authority only became aware of the breaches of the order as a result of contact from a member of the public who is herself aggrieved with social services, and was thus attracted to the website. The Twitter account was discovered when a search under M’s name was then made.

As to whether the material is about to become public, there is no reason to believe that the family will be identified if an order is made. In this day and age, absolute confidentiality can never be guaranteed. Anyone can post confidential information on the internet without taking responsibility for the consequences, but there is a world of difference between that kind of publicity and identification in the local, national and international media. It is for that reason that the ‘public domain’ exception in the standard RRO is drafted in these terms:

Ms Gallagher says that the media organisations are advancing no positive case that they wish to identify M or any other individuals, or that they intend to cause distress to A. I am sure that the latter point is true, and that the media would not be likely to identify B, C or D gratuitously. But equally the media organisations would be doing no more than their duty in identifying M in the context of the criminal trial, even though this would have the consequence of identifying the younger family members in their communities. Also, as A is now an adult, there can be no certainty that she would not be identified by some sections of the media.

While the court must have regard to codes of practice, if protection ought to be given to the younger family members, that is an entitlement and not a matter to be left to editorial judgment.

M’s rights do not count for anything in these circumstances. As the defendant in a criminal trial, and after the findings of this court, her identity could not be withheld in its own right, but only for the protection for other family members.

It has to be acknowledged that maintaining M’s anonymity comes at a price, in that those with whom she has dealings in future may be deprived of information about her. M is an articulate and determined liar, and others may be taken in. The risk of this will, however, be reduced by the actions that the local authority is taking to bring the court’s findings to the attention of official bodies who have child protection responsibilties and also to all those closely involved in the family proceedings.

A began life in foster care in country X before being adopted by M and F at the age of 5 months. Her adoptive parents separated when she was three and she lost contact with F when she was six as a result of M’s actions. She was home educated from the start, growing up in what Dr C describes as “a toxic cocoon” of M’s making. She was witness to M’s ill-treatment of C. She played a large part in the upbringing of C; when she had just turned 15 she was left alone to look after C (4) while M and B went on a ten-day holiday to the United States.

As stated above, from the age of 14 A was made to participate in the programme of self-insemination. There were six series of attempts over two years. She became pregnant at the age of 14, but miscarried, and ultimately became pregnant with D at the age of 16. I have found that participation in M’s plans caused A continuous anxiety, and that the physical steps she had to take were degrading, humiliating and, on occasions, painful.

M made A cover up what was going on and to lie to doctors and others about how she became pregnant by describing sexual activity that A has never experienced. When D was born, M tried to take him for her own, causing great distress to A. When A finally told a family friend what was going on, M stopped at nothing to prove that A was a liar, causing huge additional distress to A, who was struggling as a new mother while deprived of all contact with her family. When giving evidence, A was asked by M’s leading counsel whether she realised that her evidence could lead to C not being able to go home. Even after the findings, M’s admissions continue to place significant responsibility at A’s door for the circumstances of D’s conception. The abuse of A by M continues to this day.

A is an exceptionally sensitive, compliant and intelligent person, who feels deeply guilty about the consequence of her disclosures, which now include the fact that C will grow up outside the family. For the past year, she has been doing very well in carrying on her own life and in looking after D, but her situation is extremely fragile. She has no home of her own. She is alienated from her mother and from B, who has to a large degree remained under M’s influence. She is slowly re-establishing contact with her father. Following a life of social isolation, she is in the process of developing an independent identity at a much later age than most young people.

Dr C’s psychological assessment of A, which I have studied, contains details that are not appropriate to repeat here, but which cause significant concern for A’s wellbeing. He advises that publicity about the details of her experiences would have serious potential repercussions in the short and longer term. Negative reporting about M could considerably affect A, who is likely to blame herself for an adverse outcome. Her confidence in parenting D could be affected. Her ability to benefit from therapy could also be affected, because she would fear the consequences of further openness, and because she would also have to deal with wider issues arising from the publicity. Publicity would make it harder for A to meet others in public and damage her ability to establish and maintain a support network, which is a crucial component of her rehabilitation.

Dr C is also concerned that general knowledge of A’s past could put her at risk of exploitation by people who found such matters exciting. He described publicity as keeping the past alive for A, with the risk of creating a vicious circle for her. Lastly, he referred to the risk that M’s pleas might be accepted, in which case the media could only report a partial and distorted account of events. He described the effect of a narrative which held A in any way responsible as immediate and devastating for her, with consequent effects on D. Dr C is concerned that the particularly unusual circumstances may excite prurient interest in some sections of the media, particularly if A was reported to have participated in any way voluntarily. He described this as being excessively harmful to A.

The court also has the evidence of A’s therapist, who reports that the stress of the family procedings had an adverse effect on A’s emotional health for which she required considerable support. This was difficult, despite A’s privacy being protected. If her privacy were compromised it would place A under enormous emotional stress and isolate her from the normality that as a young mother she has worked so hard to build up. It would add further pressure to her ability to be emotionally available to D and make her fearful about going into the community. This would isolate her from the support she will need when she eventually moves into the community to parent D alone.

Identifying publicity is also likely to make the re-establishment of the relationship between A and B more difficult.

It is not at this point clear whether A will be required to give evidence in the criminal proceedings.

A’s right to respect for her private life is squarely engaged. The nature of the material could scarcely be more intimate. The fact that she is a virgin who has had a baby lends itself to vivid reporting, and a label of that kind is not easily lost, for her or for her baby. Likewise, the nature of the reporting of criminal offences is quite different from the generally benign and consensual reporting that is seen in reports of scientific advances, such as the case of Louise Brown.

A’s right to respect for her family life is equally engaged. She lost her birth family in country X and she has now lost her adoptive family as a result of crime and abuse of which she was a direct victim. In the circumstances, her claim to be protected from factors that have the potential to harm, or even destroy, her family life with D is in my view an extremely strong one.

It is the case that A is no longer a child, but a young person aged 18. Understandably, the rights of children are given special consideration in any application of the HRA, but the protections offered by the ECHR apply to “everyone” and in the circumstances of this case I do not apply a significant discount to the respect due to A’s rights because she has recently attained her majority.

D’s welfare depends almost entirely on the wellbeing of his mother, who is his only known blood relative. Dr C draws attention to the harm to D’s upbringing if the focus were on how he was conceived rather than who he is. Instead of being a little boy growing up in his own right, he could become an object of unhelpful interest.

D’s birth was the event that precipitated the crisis in the family and it will take skilled work and caring thought to devise an account of his conception for him. This work must happen at D’s pace as he grows up. The task of creating that narrative will be complicated still further if there is a public story that, in the age of the internet, will not go away. Dr C sees a very real risk that D will be confronted in public by information about his conception that he will not know and not be in a position to deal with.

These issues in relation to D’s identity, and the way in which they are resolved, will have lifelong resonance for him. He would be seriously disadvantaged if he carried any kind of stigma as a result of the extraordinary circumstances of his conception and birth.

B, who I met, will be a ward of court until her 18^th birthday next year. She is a caring young person who masks the evident stresses behind a breezy manner. She is in an impossible situation. She is the child who would be most immediately affected by the impact of publicity, because she is isolated and is living with M. She has no family or other established social supports that might shield her from the effects of exposure.

B was adopted by M and F from an orphanage at the age of 5 months. She experienced the same upbringing as A, but has developed differently. She was drawn into M’s abuse of R and witnessed the abuse of C. She was recruited by M in efforts to discredit A. The fact that she is living with M has the unfortunate consequence that she is still subject to M’s influence, and echoes many of her attitudes, including antipathy to social services. As a result of the proceedings, B is distanced from A, and is now having to come to terms with the loss of C from the family.

B, home-educated until the age of 16, is now making her first steps towards independence. She has just finished the first year of a two year vocational course at a college where she is a highly visible student because of her manner and appearance. She has also had her first tentative meetings with F, whom she had not seen for many years. The shadow of the criminal proceedings hangs over B, with the obvious possibility of M becoming unavailable to care for her as a result of the criminal proceedings.

There is clear evidence about the importance to B of continuing to attend college. It is her lifeline to the outside world. If her contemporaries identify her with the family history, this could sabotage the start she is making on creating a social world, a career and a chance of independence: so advises Dr C. He adds that if B were to drop out of college, that would be the worst option. Having been home-educated, she has no formal qualifications, and it would probably lead to her becoming unemployed and forced to remain within her mother’s terms of reference. Dr C’s advice is strongly echoed by evidence from an experienced independent social worker who has been working with B. He is of the view that every possible effort should be made to keep her college life as separate as possible from the other things that are going on in her life, and he would be very concerned for her emotional welfare if this could not happen.

Dr C draws attention to the risk that B might be targeted, perhaps in a predatory way, if her connection with events became known.

B’s right to respect for her private and family life is undoubtedly engaged. The evidence establishes that public identification would infringe her right to develop her personality and relationships without interference at a crucial and sensitive stage in her development into adulthood.

C was adopted by M from an orphanage in country Y at the age of 7 months. She was a difficult child to care for, with the result that she was at times harshly treated by M. A year ago she was removed into foster care, and after several months she was moved again to her current placement. As a result of a decision taken this week, this is now to be her permanent home and all efforts are to be made to stabilise and support it, despite M’s opposition. C’s position is unsteady because she is a child with strong links to M and her sisters who is now being asked to settle in a long-term foster home. Anything that destabilises her home or her contact with her sisters would be very detrimental to C: if her foster placement broke down it would be a disaster.

C demonstrates features of a psychological disorder that imposes burdens on her carers. She knows very little about what has taken place and, like D, life story work will be very important for her. She is due to start a new school in September. It would be damaging for information to come to her in an unplanned way, for example from other children at her school.

F does not live in England. His surname is similar to M’s. Having been excluded from the family, he was unware of what was going on and is now very concerned about the welfare of A and B. He is rebuilding his relationship with them. That process is at a delicate stage, but he has the potential to be an important source of beneficial support for them in future.

I accept the argument that it would raise anomalies if F was the only family member whose identity could be reported. This would be likely to make it harder for A to see her father as a refuge and source of support, and for B to see him as someone to grow closer to.

The resolution of this conflict of legitimate interests can only be achieved by close attention to the circumstances that actually exist in the individual case. As Sir Mark Potter has said, the approach must be hard-headed and even, from the point of view of this jurisdiction, hard-hearted.

Rights arising under Art. 8 on the one hand and Art. 10 on the other are different in quality. Art. 8 rights are by their nature of crucial importance to a few, while Art. 10 rights are typically of general importance to many. The decided cases, together with s.12(4) HRA, act as a strong reminder that the rights of the many should not be undervalued and incrementally eroded in response to a series of hard cases of individual misfortune.

On the other hand, there is no hierarchy of rights in this context and there are cases where individual rights must prevail. In highly exceptional cases this can even include making inroads into the fundamental right to report criminal proceedings, but only where that is absolutely necessary.

I have concluded that this is such a case. In such unique circumstances, the claims of Art.10 are very strong, but those of Art. 8 are even stronger. The risks to private and family life are exceptional and the injunction sought is nothing less than an absolute necessity. While there is no evidence of a risk to life and limb, if M is publicly identified the probable consequences for the younger family members would at best be harmful and at worst disastrous. The wellbeing of A is inseparable from the wellbeing of D. As sisters, the fortunes of A, B and C are also interlinked and any harm to one will be felt by the others. If these youngsters are identified, the effect on them would be long-lasting and profound.

In contrast, the proposed infringement of Art. 10 is partial, not absolute. While an order preventing the identification of a criminal defendant will deprive the story of the personal details that are so potent if it is to attract the widest audience, it will not prevent the reporting of the trial itself or of the wider issues that arise. The events can be reported in a way that is not at the expense of young people who have already been direct victims of behaviour that takes the case outside the normal run of child cruelty cases. These children are at an age and stage where the impact of being identified would be particularly heavy.

Ms Gallagher argues that Re W was a highly unusual and fact-specific case, and a creature of its time and place, meaning a time of fear and prejudice towards HIV sufferers. I do not accept that the decision is so confined. The issues that arose in that case have clear parallels with the situation of these children and I have found the analysis of the President helpful. I refer in particular to his observation to the effect that the material in that case was intrinsic to the children (in that case HIV status, here the circumstances of conception), and that the material was not in the public domain: see paragraphs 58 and 67.

I have given thought to the duration of the order. The proper approach is for it to be as short as possible, consistent with achieving its purpose. Possibilities include: the end of the criminal trial; 2013 (B’s 18^th birthday); 2016 (the end of B’s tertiary education); 2022 (C’s 18^th birthday); 2029 (D’s 18^th birthday); an indefinite order.

I note that M argues for the order to expire on C’s 18^th birthday in 2022, saying that it represents a restriction on her freedom of expression too. She wishes to assert her rights and apparently intends to write a book about how the children were unfairly taken away from her. She opposes any extension beyond the time that her children are adults. She notes that D would be aged 11 in 2022, but “she cannot be expected to empathise with his needs and interests when she has not been given the opportunity to have a relationship with him”. M’s approach underscores the need that these young people have for extensive protection.

It is tempting to temper the appearance of the order by selecting some near date for its expiry. Unfortunately, with material of this kind, there is no logical point at which it could be said that the purpose of the restrictions had been achieved. I shall link the the order to D’s 18^th birthday in 2029 on the basis that he should by then be equipped to deal with anything that might be said about his background. There will naturally be liberty to apply if the order needs to be revisited in changed circumstances in the meantime.

I shall make an Order whose terms, together with its Explanatory Note, are set out in anonymised form at Annex 2. It has been carefully drafted so that the restrictions are as clear and proportionate as possible. The media organisations have made certain observations, which I have tried to accommodate. Specfically, the order makes clear that ‘disembodied’ reporting of the criminal trial and of the wider issues is not prevented.

Re S (A Child) (Identification: Restriction on Publication) [2005] 1 AC 593

A Local Authority v W [2005] EWHC 1564 (Fam), Sir Mark Potter P

Re Trinity Mirror Plc [2008] 2 Cr. App. R. 1

“31.

The court with jurisdiction to make this order, if it were ever appropriate to be made, is the High Court. The nature of the problem which would confront the High Court is summarised by Sir Mark Potter P in A Local Authority v. W and others, the only reported case to date in which the High Court has agreed to restrain identification in the media of the defendant to criminal proceedings on the basis that this order was necessary to protect the rights and interests of her (or his) children. He said of Articles 8 and 10, at para 53:

"... each Article propounds a fundamental right which there is a pressing social need to protect. Equally, each Article qualifies the right it propounds so far as it may be lawful, necessary and proportionate to do so in order to accommodate the other. The exercise to be performed is one of parallel analysis in which the starting point is presumptive parity, in that neither Article has precedence over or 'trumps' the other. The exercise of parallel analysis requires the court to examine the justification for interfering with each right and the issue of proportionality is to be considered in respect of each. It is not a mechanical exercise to be decided upon the basis of rival generalities. An intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary before the ultimate balancing test in terms of proportionality is carried out."

32 This appeal succeeds on the jurisdiction argument. We must however add that we respectfully disagree with the judge's further conclusion that the proper balance between the rights of these children under Article 8 and the freedom of the media and public under Article 10 should be resolved in favour of the interests of the children. In our judgment it is impossible to over-emphasise the importance to be attached to the ability of the media to report criminal trials. In simple terms this represents the embodiment of the principle of open justice in a free country. An important aspect of the public interest in the administration of criminal justice is that the identity of those convicted and sentenced for criminal offences should not be concealed. Uncomfortable though it may frequently be for the defendant that is a normal consequence of his crime. Moreover the principle protects his interests too, by helping to secure the fair trial which, in Lord Bingham of Cornhill's memorable epithet, is the defendant's "birthright". From time to time occasions will arise where restrictions on this principle are considered appropriate, but they depend on express legislation, and, where the Court is vested with a discretion to exercise such powers, on the absolute necessity for doing so in the individual case.

33.

It is sad, but true, that the criminal activities of a parent can bring misery, shame, and disadvantage to their innocent children. Innocent parents suffer from the criminal activities of their sons and daughters. Husbands and wives and partners all suffer in the same way. All this represents the further consequences of crime, adding to the list of its victims. Everyone appreciates the risk that innocent children may suffer prejudice and damage when a parent is convicted of a serious offence. Among the consequences, the parent will disappear from home when he or she is sentenced to imprisonment, and indeed, depending on the crime but as happened in this case, there is always a possibility of the breakdown of the relationship between their parents. However we accept the validity of the simple but telling proposition put by the court reporter to Judge McKinnon on 2 April 2007, that there is nothing in this case to distinguish the plight of the defendant's children from that of a massive group of children of persons convicted of offences relating to child pornography. If the court were to uphold this ruling so as to protect the rights of the defendant's children under Article 8, it would be countenancing a substantial erosion of the principle of open justice, to the overwhelming disadvantage of public confidence in the criminal justice system, the free reporting of criminal trials and the proper identification of those convicted and sentenced in them. Such an order cannot begin to be contemplated unless the circumstances are indeed properly to be described as exceptional.

34.

This court is naturally concerned for the welfare of the defendant's children. We accept the assessments of their mother, their headteacher, their social worker and the consultant child psychiatrist. Nevertheless we must adopt a much wider perspective. For the reasons set out above, we concluded at the end of the hearing that all we could properly do in the interests of the children was - exceptionally - to announce our decision in advance both of the delivery of our judgment and of our setting aside of the judge's order. Our intention was to create a period in which work might be done with the children, with a view to enable them better to cope with the public identification of their father following its earlier postponement.”

A Local Authority and Others v. News Group Newspapers Ltd., Mirror Group Newspapers Ltd. and Newsquest Ltd[2011] EWHC 1764 (Fam) (Baker J)

The Court has today made a reporting restriction order for the protection of three children and one vulnerable young adult, the mother of the youngest child. The children are

The vulnerable adult is A (18 years).

Also referred to in the order are M (adoptive mother of A, A & C) and F (adoptive father of A and B).

The order has effect until 2029.

It prevents (by Paragraph 3) the publication of information likely to identify any of the above family members by name or location or other details as being or having been

The order, made after the court had read submissions from media organisations, is exceptional in that it prevents the naming of M or other family members in any reporting of the forthcoming criminal trial of M for offences against A and C. These restrictions are necessary to protect the children and A from the substantial and harmful consequences of publicity about matters concerning which the High Court has made findings.

Provided that the family members are not likely to be identified as a result, the order specifically does not restrict reporting of the criminal trial of M or any other issues of public interest that arise (Paragraph 6).

The full terms of the order are attached to this Explanatory Note. Anyone affected by the order has the right to apply to vary or discharge it (Paragraph 8).

The court will give detailed reasons for the order in a judgment that will be handed down shortly.

Subject to any different order made in the meantime, this order shall have effect until 29 June 2029, the 18^th birthday of the youngest child.

This order binds all persons and all companies (whether acting by their directors, employees or agents or in any other way) who know that the order has been made.

This order prohibits the publishing or broadcasting in any newspaper, magazine, public computer network, internet website, sound or television broadcast or cable or satellite programme service of the following:

No publication of the text or a summary of this order (except for service of the order under paragraph 7 below) shall include any of the matters referred to in paragraph 3 above.

This Order prohibits any person from seeking any information relating to the parents or children from any of the following:

Nothing in this Order shall prevent any person from:

Copies of this Order shall be served by the Applicant (and may be served by any other party to the proceedings)

Any person affected by any of the restrictions in paragraphs 3-5 above may make application to vary or discharge it to a Judge of the High Court on not less than 48 hours notice to the parties.