Carr v News Group Newspapers Ltd & Ors

The applicant, Maxine Carr, seeks an injunction, as it called, contra mundum; that is to say, of general effect and binding upon anyone who knows of the order. The objective is to protect her new identity and to restrict information about her present and future whereabouts reaching the public domain. The terms of the order now sought are similar to those which have been in force since 13 May 2004 and the claim is founded upon the confidential nature of that information. In that application, she is supported by the probation service, by the Home Office and by the relevant police authority.

The starting point is that the court has a duty under section 6 of the Human Rights Act to take reasonable measures for the protection of any citizen against threat and violation of the fundamental and non-derogable rights under articles 2 and 3 of the European Convention on Human Rights and Fundamental Freedoms. That obligation of the state, in this instance to be exercised by way of its judicial powers, is unchallengeable and rock solid: see, e.g., Venables and Thompson v. NewsGroup Newspapers [2001] Fam. 430, and X and Y v. O’Brien [2003] EWHC 1101 (QB).

Of course the applicant’s rights under article 8 of the Convention are also engaged. Those relate to privacy, which is a concept wide enough to include a person’s physical and psychological integrity. The preservation of mental stability is recognised as being a necessary precondition for the exercise of rights under article 8: see, e.g. Bensaid v.United Kingdom (2001) 33 EHRR 10.

There is before the court a wealth of evidence of a continuing danger of serious physical and psychological harm to the applicant. There is also evidence which demonstrates convincingly that the subsistence of the injunctions since last May has been very effective in reducing those risks and in permitting the police, the Home Office and the probation service to carry out their responsibilities of protection, treatment and rehabilitation.

There is a good deal of evidence before me which shows that there has been a continuing interest in the subject of the applicant and the circumstances in which she is now living. If the injunction were to be refused, the task of the police and the probation service would become much more difficult, if not impossible. There is evidence from the claimant herself, from her solicitor, from a senior police officer, from a senior officer of the probation service and from a psychiatrist. For what, I hope, are obvious reasons, I do not propose to go into that evidence. To do so would jeopardise the very object of this application.

It goes without saying that where any order is contemplated which would have the effect of restricting the rights of the media or, indeed, of anyone else under article 10 of the European Convention, the court must approach its task with circumspection and ensure that any such restriction goes no further than is necessary and proportionate.

No one suggests that there are not a number of issues of legitimate public interest connected to this applicant. For example (to state two of the more obvious ones), there is a legitimate interest in general terms in the cost to the public purse of protecting and rehabilitating her and, again, in the circumstances of the tragic events in Soham and any lessons that can be learned for child protection in the future by way of record keeping or scrutiny of prospective employees likely to come into contact with children. However, for free and open debate to take place on those and other subjects, there is no need in my judgment for the applicant’s whereabouts to be revealed or her identity, with all the risks that are plainly inherent in that.

The media defendants in these proceedings have made it clear for some time that they do not propose to attend and make submissions on the present application. They do not, of course, consent. One could hardly expect them to do that. On the other hand, they have taken a reasoned decision not to contest the order. That is not a reason for granting it, or letting it go by on the nod. Most certainly not. The court never grants an injunction restraining freedom of the media unless it is truly necessary and proportionate to the need to protect a countervailing interest. What, however, the lack of contest tends to show is that the media do not believe that there has been, over the last nine months, since the injunctions were first granted, any significant inhibition on the legitimate exercise of their rights and duties to inform the public and to debate before the public the issues which really matter.

Past experience shows that, if an editor or proprietor believes that there is any real inhibition on their functions, the opposition will be immediate and vigorous. To an extent, therefore, this inactivity in the present proceedings fortifies my own strong impression that the media are not going to be truly inhibited in any of their legitimate activities. I am satisfied that the only effective means open to the court to discharge its protective duty is to grant the injunction in the terms of the draft order, which Mr Fitzgerald has just summarised. It is necessary to protect life and limb and psychological health. In so far as there will be restrictions on freedom of expression those are proportionate to the very real physical dangers to which the applicant remains exposed. It is right to emphasise, as Mr Fitzgerald emphasised earlier, that there is always a right should circumstances change for the media or any interested party to apply to the court on short notice for the discharge or variation of the injunction. That is provided for in the order proposed.

Against that background, therefore, I make the order sought.