Case No: B4/2011/0540,
B4/2011/0541

Neutral Citation Number: [2011] EWCA Civ 1759
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(MRS JUSTICE HOGG)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 7th December 2011

Before:

LORD JUSTICE THORPE
LADY JUSTICE BLACK
and
LADY JUSTICE RAFFERTY

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	BIRMINGHAM MAIL 
	
Appellant	
	
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ED 

Respondent	
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(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

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Mr Adam Wolanski (instructed by Waddington Webber Commercial Solicitors) appeared on behalf of the Appellant.

The Respondent did not attend and was not represented.
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Judgment

Lord Justice Thorpe:

1.	This is an appeal from orders made by Hogg J pursuant to permission, granted on paper on 4 July 2011.  

2.	There were very serious criminal proceedings in the Birmingham Crown Court before the Recorder, and at some stage he made an order which prevented or limited publication for the protection of a child who was related to the criminal proceedings at one remove.  It then appeared that that order would lapse at the conclusion of the criminal proceedings, and so an application was made in the High Court which came before Hogg J on 10 February.  

3.	She made an order preventing the publication of the names and addresses of individuals, including the child’s parents:

“IF, BUT ONLY IF, such publication is likely to lead to the identification of the child as being a sibling of ‘PD’ (deceased), a child of, or in any way associated with ‘ED’ or ‘JL’, or their prosecution for offences against ‘PD’.”

The order stated further: 

“Nothing in this Order shall prevent any person from:

a. 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.”

The order of 10 February 2011 was served on the following day on a local paper, and on that very day the Recorder sentenced ED and JL.

4.	On 17 February a dramatic article reporting the sentence appeared in the local paper identifying ED and JL as perpetrators of the crime.  The child who Hogg J sought to protect was not referred to, but the home was identified by reference to its street.  When that article was drawn to Hogg J’s attention on that very day, she was concerned, and required the Editor of the local paper to justify his publication, and to present his case to avoid committal for contempt and breach of the order of 10 February.

5.	The attendance of the Editor followed on 24 February, and in the interim evidence was filed by him and the paper’s lawyer asserting that in the light of the paragraph cited above, there was nothing to prevent the publication in the form in which it appeared identifying ED and JL, and accordingly there was no contempt, there being no breach.  

6.	That defence was rejected by the judge, who concluded that the breach was plain but was at least not intentional, and was excused by the ambiguous form of the order of 10 February.  

7.	Accordingly, she varied the order of 10 February to express more clearly what had been her intention, so that in amended form the order became: 

“Nothing in this Order shall prevent any person from:

a. 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 but did not itself make any order restricting publication, save that names and addresses of any persons involved shall be omitted.”

Of course, the fortification of the original order came with the addition of the final ten words.

8.	The appeal before us this morning takes very short form, because the respondent wrote a letter to the court on 29 November reporting that public funding had been withdrawn, and there would therefore be no contrary argument addressed to us today.  

9.	However, the letter went on to take a point, so that it became something akin to a written submission in support of the respondent’s case, and the point taken was that the local paper by their counsel had effectively consented to what had emerged on the 24th, and according were not in a position to complain of it.  That submission was answered on the following day in a convincing response from the appellant’s solicitors, RPC.  That disposes of the submission that was obliquely raised by the respondent in correspondence.

10.	So it seems to me that Mr Wolanski, who appears for the appellant, is entitled to succeed certainly in his submission that the publication of 17 February did not breach the terms of the order of 10 February, given that it was a general licence to publish the outcome of public proceedings in a criminal court, and that there was no specific restriction on the identification of the defendants in the dock.  

11.	It seems to me to follow inevitably that the subsidiary order made by Hogg J that the local paper should pay the costs incurred on 10 and 24 February must also be set aside.  The whole rationale of that order was that the local paper was in breach.  If that were not reason enough, the judge’s rationalisation that they should bear the costs to save public funds is a factor of doubtful validity.  So the finding of contempt goes, and the costs order goes.

12.	Mr Wolanski has sought to persuade us to opine upon the legality of the additional words by which the order of 10 February was fortified; I decline so to do.  The circumstances are clear enough from the transcript to be found in our bundle at page 18 of tab 6, and it went like this:  

“Judge: I have been thinking about that, and the order at 7(a) may – I was thinking about amending it: information save for names and addresses of any persons involved.

Mr Wolanski: So it would be: publishing information relating to any part of the hearing in a court in England and Wales.  It may be, given the particular advice here as reports of criminal cases, that the order should say: including reports of the criminal case, save that’ – 

Judge: Names and addresses should be omitted.

Mr Wolanski: -- Names and addresses should be omitted, precisely.

Judge:  That, I think, is the answer.

Mr Wolanski:  That is the answer, yes.

Judge: Because that is where there was a slip up.

Mr Wolanski: Yes.

Judge:  I do not want to stop the newspaper from publishing what goes on in open court.  It is in this case the name and address.  That was the one thing we were trying to protect.

Mr Wolanski:  Yes.

Judge:  So if that could be redrafted.

Mr Wolanski:  Yes.”

13.	So it is apparent that when the judge sought to fortify her first order, Mr Wolanski not only did not seek to deter her on the submission that such fortification would be contrary to authority, he actually aided her.  Accordingly  the point not having been taken below, indeed far from not being taken below, we can see how cooperatively it all developed, it seems to me we need not be burdened with considering the submission here.

14.	So I would allow the appeal and strike out the finding of contempt and the order for costs.

Lady Justice Black:

15.	I agree that the appeal must succeed in relation to the finding of contempt.  The publication did not amount to a breach of the 10 February order in view of paragraph 7 of that order.  The costs order made by the judge must therefore also go.  

16.	I would add a few words in relation to Mr Wolanski’s wish to advance an appeal against the very making of the order of 10 February as amended on 24 February, which I agree with my Lord, Lord Justice Thorpe, we should not allow him to pursue any further.  The issue on which the hearing on 24 February was focused was the allegation that the publication by the newspaper had been in contempt of the order of 10 February.  There had been no attendance by the newspaper on 10 February when the order was originally made, although they had been alerted and had communicated by letter with the court.  There was no argument on 24 February to alert the judge to the newspaper’s challenge to the propriety of her making any order restraining them from publishing information about the criminal proceedings which was likely to identify the child, which had had the effect of preventing reports identifying the parents as the perpetrators of the crime.  The passage to which my Lord, Lord Justice Thorpe, has made reference makes that clear.

17.	It is perhaps understandable that the focus of that hearing was on the serious matter of contempt, but it is surprising to see the arguments addressed to the order itself making their first appearance in this court.  I am not persuaded that the order has any practical consequences for the newspaper now that the trial is some time in the past, and I do not consider that it would have been appropriate for us to entertain argument about it for that reason, as well as given the history of the making and variation of the order.  I would add that it would be particularly unfortunate for us to give a largely academic opinion on these matters where, for funding reasons, there is only one party represented before us.

Lady Justice Rafferty:  

18.	I agree with both my Lord, Lord Justice Thorpe, and my Lady, Lady Justice Black.

Order:  Appeal allowed.