Z & Ors v News Group Newspapers Ltd & Ors (Judgment 2)

Until further order, there shall be no publishing of this judgment, or of the details within it which may lead to the identification of the children of the defendant (hereafter Mrs Z).

This judgment should be read with the judgment which I delivered on this application on 7 May 2013 ([2013] EWHC 1150). At that time, I made a Reporting Restriction Order, exceptionally prohibiting publication of identifying information arising within ongoing criminal proceedings.

Further to that judgment (see in particular [2013] EWHC 1150 §89 & 90), and the Order of the same date, the application by Mr Z for a Reporting Restriction Order has been restored before me (as contemplated) for further consideration.

The background facts are sufficiently summarised in the earlier judgment at [2013] EWHC 1150 §5-28. In the criminal trial of Mrs Z (see §5 & 6 ibid.), the trial judge has now completed his summing up, and this morning the jury has retired to consider its verdicts.

No party contends at this hearing for any variation of the Reporting Restriction Order in the event that Mrs Z is acquitted of all of the counts on the indictment.

The issue for my consideration now is whether there should be any, and if so what, variation to the Reporting Restriction Order in the event that Mrs Z is convicted on any one of the 24 counts of fraud, which she currently faces at the Crown Court.

There is, I recognise, an urgency to this determination; as I earlier indicated ([2013] EWHC 1150 §36), Article 10 rights include the freedom to hold opinions, and to receive and impart information and ideas, without interference by public authority and regardless of frontiers. I fully recognise that the contemporaneous reporting of, and communication of information about, events of public importance is invariably a significant, often a central, aspect of a person’s right to freedom of expression (see my comments at §47 ibid.).

The application was restored for hearing on 20 May 2013. On that morning, I received e-mail communication from GoodmanRay, solicitors instructed by Mrs Z, seeking an adjournment of this hearing for several days so that she could be represented at this hearing. I declined that application as sought because: (a) Mrs Z has known about this application, and the Order I first made in respect of it, since 3 May 2013; (b) Mrs Z’s argument for the continuation of the current comprehensive Reporting Restriction Order (including a prohibition on the reporting of her name) irrespective of the outcome of the criminal trial is advanced on behalf of Mr Z (by Miss Lazarus) in any event; and (c) I heard briefly from Mrs Z’s new partner, in person; nothing said by her partner suggested that Mrs Z had any independent, or novel, point to advance.

However, in balancing the significance to Mrs Z of the issues in play here, while recognising the impact of delay to the Article 10 right to report the outcome of the trial in a timely way, I nonetheless adjourned the hearing overnight to give Mrs Z an opportunity to make representations should she wish to do so at 2p.m. today (21 May 2013).

In the intervening period, I have received further e-mail communication from GoodmanRay; the solicitor there indicates that the application for public funding has not yet been approved, but goes on to state that “having spoken to Ms Lazarus, I understand that arguments have already been advanced by Mr Z that Mrs Z’s name should remain subject to the current press injunction.  I have no further instructions from Mrs Z to add any additional arguments”. In the circumstances, I have not heard further representations from Mrs Z before giving this decision and delivering this judgment.

I do not propose to rehearse the law relevant to the grant or refusal of Reporting Restriction Orders again in this judgment, all counsel having acknowledged at this hearing the correctness of my earlier distillation of the relevant law ([2013] EWHC 1150 §29-57), and my application of it to the circumstances which obtain here.

On the question of whether there could, or should, be any modification to the Reporting Restriction Order in the event of Mrs Z’s conviction, my approach to the issue has been, as before, to balance the competing rights under the ECHR, in particular Article 10 and Article 8 (see [2013] EWHC (Fam) §36). It is acknowledged on behalf of Mr Z that, in the event of Mrs Z’s conviction, marginally different considerations will be relevant to the balancing exercise than when I conducted it earlier in this process.

While acknowledging the considerable value placed on confidentiality of, and freedom from intrusion into, family life as essential features of Article 8, I have nonetheless paid full regard to the ‘strong rule’ that the press, as the watchdog of the public, should be enabled to report everything that takes place in a criminal court; the embodiment of the principle of open justice in the criminal courts is, I fully recognise (as previously, [2013] EWHC 1150 §51) ingrained in, and indispensable to, our democratic society, deserving therefore of the highest respect.

Ms Lazarus has argued that a guilty verdict on any of the 24 counts of fraud should not disturb the balance currently positioned marginally in favour of the Article 8 rights of the children; she contends that the current embargo should hold firm.

She refers to the fact that there has in fact been some partial reporting of the trial by NGN Ltd and others already (thus pointing out, fairly, that I was in error in assuming that this would not be possible in any meaningful way), and disparages what she describes as the “sensational” nature of the press coverage in The Sun newspaper (8 May 2013). She expresses concern that any reporting of the outcome of the trial is likely to focus on the children rather than the defendant, and seeks to illuminate that submission by reference to the already published piece.

Miss Lazarus acknowledges that, in light of previous authority, and my earlier indication ([2013] EWHC 1150 §91) she has a ‘steep hill’ to climb to persuade me not to vary the Reporting Restriction Order in the event that Mrs Z is convicted, but urges me (in the event that I am minded to do so) to vary it to the minimum extent necessary to afford due weight to the Article 10 considerations, protecting where possible the naming or identification of the children in the press.

In advancing these submissions, Ms Lazarus emphasises, as she did before, the vulnerabilities of the children generally, and has placed further evidence before me, including a second letter from the CAMHS social worker concerned for the welfare of the child E. It is apparent (from both the letter and supporting submissions) that an outline ‘crisis’ plan (see [2013] EWHC 1150 §93) has been devised to assist E to cope with the consequences of her mother being convicted and associated press reporting.

Ms Kissin urges me to follow through the approach which I had intimated in my earlier judgment, and to declare that, in the event of a conviction, the rights enshrined under Article 10 do indeed prevail. She points to, and I accept, the responsible approach of her clients in challenging through the courts the propriety of the original section 39 CYPA 1933 embargo, and not reporting the name of the defendant, notwithstanding the brief period in which they could have done so. She rejects the claim of sensational reporting of the trial thus far, and reminds me (so far as any future reporting is concerned) that the press has a responsibility for conscientious and lawful reporting of criminal process, following specifically the letter of the Editor’s Code of Conduct.

Miss Kissin cautions me against identifying Mrs Z by name without also giving some additional identifying information about her, for fear that the newspapers may unwittingly, and unintentionally, libel another ‘Mrs Z’.

Mr Hudson helpfully outlined some of the key aspects of the evidence at the trial of Mrs Z; he rightly emphasised that the proper identification of those convicted of crime is a fundamental tenet of the principle of open justice.

I earlier exceptionally imposed a restriction on the reporting of the name of the defendant, Mrs Z, and information which may lead to the identification of the children who were innocently involved in her alleged fraud because at that stage of the trial (where it was apprehended that the attention of the trial would be focussed upon the medical records of the children) I concluded that the children’s Article 8 rights prevailed. I made it known then that in the event of a conviction, different considerations may well apply.

Having heard fresh argument on the manner in which I should conduct the balancing exercise, I have once again considered the material, recognising that neither Article has as such precedence over the other. I have considered carefully the comparative importance of the specific rights being claimed in this case, and brought into my reckoning the justifications for interfering with or restricting each right. I have finally, and importantly, applied the test of proportionality to the equation (see generally Re S (A child) (Identification: Restriction of Publication [2004] UKHL 47, [2005] 1 AC 593 at §17).

In conducting the balancing exercise, I am conscious to guard against any assumption that press reporting of a case such as this would necessarily be done in a sensational way; the press has a duty to maintain the highest professional standards, and I am entitled (indeed I am obliged by statute – section 12(4) Human Rights Act 1998) to take into account that in the coverage of any criminal process, the reporting must accord with the current ‘privacy code’ (at present the Press Complaints’ Commission’s ‘Editors Code of Practice’); this clearly obligates editors to be accurate and fair in their reporting, and not intrusive into an individual’s family life. Specifically (per §6(5) Code of Practice):

“Editors must not use the fame, notoriety or position of a parent or guardian as sole justification for publishing details of a child’s private life”

And in relation to the reporting of criminal process (per §9), importantly:

“Relatives or friends of persons convicted or accused of crime should not generally be identified without their consent, unless they are genuinely relevant to the story.

Particular regard should be paid to the potentially vulnerable position of children who witness, or are victims of, crime. This should not restrict the right to report legal proceedings.”

The Respondent newspapers need little reminding that, now more than ever, they need conscientiously to recognise and respect the rights of individuals, and observe the highest ethical standards.

While continuing to acknowledge the ‘exceptional’ nature of this case, and the extraordinary role played by the children in the alleged offending (making them neither witnesses nor victims), my primary reasons (which I discussed at [2013] EWHC 1150 §70 to §78) for concluding that the balance tilted in favour of protection for the private and family life of the defendant during the latter stages of the trial, would in some measure diminish in the event of a conviction, and/or could in any event be in other ways moderated by protective orders.

In my judgment, the marginal re-weighting of factors in this case in the event of a conviction would tilt the balance in favour of freedom of expression. It follows that in the event that Mrs Z is convicted of any of the counts on the indictment, I consider that the Article 10 right to publish her name as a convicted person prevails over the right of the whole family to anonymity in the press. It would, in my judgment, be unconscionable for the public not to know the name of a person convicted of fraud, possibly (depending on the extent of the guilty verdicts) substantial fraud, upon the State. In so finding, I have very much in mind the powerful (albeit obiter) comments of the Court of Appeal in Re Trinity Mirror [2008] 2 Cr. App R 1 to the effect 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.”

The inevitable yet highly unfortunate consequence of naming the defendant (in the event of her conviction) is that there will be opportunity for those who wish, and are able, to do so to identify the children who were involved in the defendant’s (in this scenario, proven) fraudulent activities; the children were, as I earlier indicated, innocent instruments of the alleged fraud. I regret that by involving the children in any proven crime, the mother herself must take significant responsibility for the public acquiring knowledge of her exploitation of them.

However I wish to emphasise, as I understand the trial Judge has done in his summing up to the jury, that, in spite of any conviction of Mrs Z, her children are utterly blameless of any wrongdoing. I very much hope that any news report of any conviction of their mother makes this clear.

Although finding that the balance tips in favour of the right of the press to report the name of the defendant in the event of a conviction, it is necessary for me to apply the same ‘intense focus’ to other information relevant to Mrs Z, her family and the alleged offending, each aspect of which requires a balanced and proportionate determination. In short, while the right to publish the defendant’s name in the event of a conviction on these facts prevails, this does not eradicate the enduring and valuable Article 8 rights of the children and the family.

In reaching conclusions on the supporting information, I have sought to strike the appropriate balance between competing Convention rights, guarding against disproportionate interference with each. In this respect I have concluded that if, but only if, such publication is likely to lead to the identification of the children, adult children, or Mr Z as being involved or named in the criminal proceedings heard at the named Crown Court, and/or as being the children of the defendant (hereafter Mrs Z):

In my judgment, those who cheat the over-stretched resources of the welfare state can neither generally nor reasonably expect to escape the proper reporting of their wrongdoing, or hope to achieve the concealment of their identities. It is with considerable regret that in varying the Reporting Restriction Order in the event of a conviction, I will expose the children of Mrs Z to the risk of identification. A guilty verdict would reflect the jury’s satisfaction that Mrs Z had improperly used her children as innocent instruments of her crime; if this is the outcome of the criminal process, then it is she alone who has unhappily heaped upon her family the misery, shame and disadvantage, which is the inevitable consequence of her offending.

I emphasise that the revisions to the Reporting Restriction Order discussed above only apply in the event that Mrs Z is convicted of any of the counts on the indictment.

If any party, or representative of the press, should seek any further clarification, they should seek my guidance as a matter of urgency.

I shall separately receive representations from counsel as to the reporting of this judgment and the judgment delivered on 7 May 2013 [2013] EWHC 1150.