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URL: http://www.bailii.org/eu/cases/ECHR/2010/983.html
Cite as: [2010] ECHR 983
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16 June 2010
FOURTH SECTION
Application no.
445/10
by J.S. against the United Kingdom
lodged on 22 December
2009
STATEMENT OF FACTS
THE FACTS
The applicant, J.S., is a British national who was born in 1993 and lives in County Down, Northern Ireland. He is represented before the Court by Mr F. Shiels, a lawyer practising in Belfast with Madden & Finucane Solicitors.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The alleged assault
On 28 August 2008, the Public Prosecution Service for Northern Ireland (“the PPS”) received a police investigation file, which alleged that the applicant had assaulted a teacher at a high school in County Down. On 23 September, the applicant was summoned to appear at the Youth Court on 4 November 2008.
In September and October 2008 teachers at the school refused to teach the applicant because of the alleged assault. The teachers then went on strike on 13 October 2008. In order for the strike to be resolved, the applicant voluntarily excluded himself from school and was provided with alternative educational assistance.
The strike nonetheless generated a great deal of publicity. In particular two articles appeared in the News Letter newspaper on 21 October 2008. The first carried the headline “Details of school 'assault' revealed” and included the following:
“Details of the alleged attack which sparked the teachers' strike at [the high school] have been released exclusively to the News Letter...An incident report filed with [the high school's] management by the teacher who was allegedly attacked has been obtained by the News Letter. The staff member, who wishes to remain anonymous while negotiations continue, claimed he was shoved through the doorway of his class after being screamed and cursed at by the boy...The pupil is understood to have suffered two family bereavements, including the death of his brother, before the alleged attack. Internal documents show school bosses had branded the boy 'high risk', with emotional and anger management issues. Reports also reveal management had warned staff to move at least 3 ft away from the pupil when he was in a confrontational mood. The boy was involved in a serious fight with another [high school] pupil earlier this year after he was taunted about family members. He was being taught in the school's special needs Pupil Support Centre just before the strike. The teachers have asked for the pupil to be removed from school or taught in isolation – but education authorities have refused.”
The second, published under the headline “Pupil involved in 10 detentions” stated:
“The pupil at the centre of the strike row was involved in up to 10 detentions in the past year, behaviour records obtained by the News Letter show.
The punishments were given between September 2007 and February this year for incidents from aggression directed towards teachers and other pupils to disruptive behaviour and leaving school without permission.
He was also involved in a serious fight with another pupil after he was teased about his family, confidential files say.
Union officials have insisted the pupil has problems that make him a candidate for special needs teaching.
...
The pupil's monitoring diary from his time in the segregated pupil support centre shows he was making improvements.”
Similar details concerning the monitoring diary, including the applicant's marks for behaviour and comments made by teachers, appeared in the Belfast Telegraph on 20 October 2008 under the headline “Details of strike school incident revealed”.
During the strike, the media made enquiries of the police, the PPS and the Northern Ireland Office (“the NIO”) as to what action had been taken in respect of the assault allegation. The PPS, through a NIO press release, informed the media that the applicant was to be prosecuted for assault and would appear in court in early November. This was reported by the media on 21 October 2008. In response to further queries, the PPS informed the media that the applicant's court appearance would take place on 4 November 2008. In subsequent stories about the strike, the name of the applicant's school, and his age, and the date of his court appearance were mentioned. His name was not included in the stories.
The applicant's solicitors then wrote to the PPS requesting an explanation for their decision to issue the press release and inviting the PPS to withdraw the summons and reissue it without informing the media that a new court date had been set. In the absence of a reply from the PPS, the applicant then issued judicial review proceedings (see part 3 below).
2. The Youth Court proceedings
On 4 November 2008, in order to have the media excluded from the trial, the applicant applied to the Youth Court for the case to be adjourned to a date not to be announced in open court. This was refused by the District Judge who adjourned the hearing to 2 December 2008. The District Judge also ordered that, under Article 22 of the Criminal Justice (Children) (Northern Ireland) Order 1998 (“the 1998 Order”), “no details pertaining to the identification of the applicant be published or released to the media” and that only three reporters could attend the next hearing. The applicant renewed his application in writing and, on 2 December 2008, the District Judge decided that the case should not be adjourned to a confidential date but that the court would hear argument as to the exclusion of the press. Those arguments were heard on 20 January 2009. The Belfast Telegraph were represented and opposed the applicant's application for exclusion; the PPS made no representations. The application was refused by the District Judge who stated that, due to the extent of the publicity in the case, much of it from the perspective of the teacher alleged to have been assaulted, the applicant would be disadvantaged by a media ban because it would mean his version of events would not be aired in the media. The applicant sought judicial review of the District Judge's decision, relying on Articles 6 and 8 of the Convention and Article 40(2)(b)(vii) of the United Nations Convention on the Rights of the Child (see Relevant law and practice below).
3. The judicial review proceedings
The applications for judicial view against the PPS and the District Judge's decision were heard together by the High Court, sitting as a Divisional Court. On 26 June 2009, the application for judicial review was dismissed. The Divisional Court found that Article 8 was engaged. The applicant had a reasonable expectation of privacy due first, to the statutory scheme in place under the 1998 Order and second, to the personal intrusion which had arisen from the extensive nature of the media reporting of the case.
The issue, therefore, was whether the PPS were justified in the disclosures they made and whether the Youth Court was justified in allowing three members of the press into the hearing. In its judgment, the Divisional Court found that the public interest in securing open justice outweighed the interest of the applicant in preventing reporting of the case. It added that, in the course of the Youth Court hearing, personal material relating to the applicant might be disclosed in which there was little or no public interest. However, the Divisional Court considered the Youth Court would be alert to ensure it made appropriate orders preventing publication. The Divisional Court also found that the PPS was not under an obligation to warn the media as to the disclosure of information; it was the responsibility of the media not to publish anything that disclosed the name, address or school of a child covered by the 1998 Order.
On 1 July 2009, the Divisional Court refused to certify a point of law of general public importance which ought to be considered by the House of Lords.
4. The applicant's Youth Court trial
The applicant's trial began on 26 July 2009. The applicant gave evidence in his own defence and was acquitted. The Youth Court found that he had been unlawfully detained by the teacher concerned and that the force used by the applicant on the teacher had been reasonable and proportionate.
5. The data protection complaint
Before the trial, the applicant's solicitors also complained to the police about the conduct of the media and alleged that the school had breached its obligations under the Data Protection Act 1998 in releasing personal information about him to the media. The police took a statement from the applicant on 25 February 2010. The matter is currently under investigation.
B. Relevant domestic law and practice
1. The Criminal Justice (Children) (Northern Ireland) Order 1998
Article 22 of the above Order where relevant provides:
“Restrictions on reporting proceedings
(1) Where a child is concerned in any criminal proceedings (other than proceedings to which paragraph (2) applies) the court may direct that -
(a) no report shall be published which reveals the name, address or school of the child or includes any particulars likely to lead to the identification of the child; and
(b) no picture shall be published as being or including a picture of the child,
except in so far (if at all) as may be permitted by the direction of the court.
(2) Where a child is concerned in any proceedings in a youth court or on appeal from a youth court (including proceedings by way of case stated) -
(a) no report shall be published which reveals the name, address or school of the child or includes any particulars likely to lead to the identification of the child; and
(b) no picture shall be published as being or including a picture of any child so concerned,
except where the court or the Secretary of State, if satisfied that it is in the interests of justice to do so, makes an order dispensing with these prohibitions to such extent as may be specified in the order.
...
(4) A court shall not exercise its power under paragraph (3) without -
(a) affording the parties to the proceedings an opportunity to make representations; and
(b) taking into account any representations which are duly made.
(5) If a report or picture is published in contravention of a direction under paragraph (1) or of paragraph (2), the following persons -
(a) in the case of publication of a written re port or a picture as part of a newspaper, any proprietor, editor or publisher of the newspaper;
(b) in the case of the inclusion of a report or picture in a programme service, any body corporate which provides the service and any person having functions in relation to the programme corresponding to those of an editor of a newspaper,
shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale...”
(6) For the purposes of this Article a child is 'concerned' in any proceedings whether as being the person by or against or in respect of whom the proceedings are taken or as being a witness in the proceedings.
(7) In this Article -
...
'publish' includes -
...
(b) cause to be published...”
2. United Nations Convention on the Rights of the Child
Article 40 of the Convention provides as relevant:
“1. States Parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the reintegration and the child's assuming a constructive role in society.
...
(b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees:
...
(vii.) To have his or her privacy fully respected at all stages of the proceedings.”
The applicant complains under Article 8 of the Convention that the provision of personal information about him to the media was not in accordance with the law and, furthermore, was disproportionate. The domestic authorities had given insufficient weight to his right to respect for his private life, particularly when, as a minor, greater protection should have been afforded to him. He also complains, under Article 13 of the Convention, that the only effective remedy would have been for the domestic authorities to have taken action in relation to the decision of the media to publish confidential information about him. As it was, the domestic authorities failed to intervene to protect him at the time of the events. The only remedies available to him, his judicial review application and his complaint to the police in respect of data protection, had proved ineffective.
QUESTIONS
2. If so, was each interference in accordance with the law? In particular, was each interference in breach the prohibition contained in Article 22 on the Criminal Justice (Children) (Northern Ireland) Order 1998 on the publication of information which revealed the name, address or school of a child concerned in criminal proceedings?
3. Did each interference pursue a legitimate aim and was it necessary in a democratic society?
4. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 8, as required by Article 13 of the Convention?