COURT OF APPEAL (CRIMINAL DIVISION)
IN THE MATTER OF AN APPEAL UNDER SECTION 159 CRIMINAL JUSTICE ACT 1988
FROM CROYDON CROWN COURT
H.H. JUDGE WARWICK MCKINNON T2006/0697
Strand, London, WC2A 2LL
B e f o r e :
THE RIGHT HON SIR MARK POTTER, PRESIDENT OF THE FAMILY
LORD JUSTICE WILSON
LADY JUSTICE HALLETT
MR JUSTICE DAVID CLARKE
|CROYDON CROWN COURT
|Ex Parte TRINITY MIRROR plc,
TIMES NEWSPAPERS LTD,
NEWS GROUP NEWSPAPERS LTD
|A and B
(MINORS, acting by the OFFICIAL SOLICITOR TO THE SUPREME COURT)
Mr Hugh Tomlinson QC and Miss Kate Blumgart (instructed by The Crown Prosecution Service) appeared on behalf of the Crown.
Mr Andrew Nicol QC (instructed by the Official Solicitor to the Supreme Court) appeared on behalf of A and B, Minors.
Hearing date: 28 November 2007
Crown Copyright ©
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION:
This is the judgment of the Court.
(a) the defendant had two young children;
(b) they were both at school;
(c) the social services department of the local authority had become involved with the family;
(d) the two children were on the Child Protection Register; and
(e) he was living separately from the children and their mother.
Counsel submitted that, given the nature of the offences, identification of the defendant's children in the press might cause difficulty for them, particularly at school. The judge agreed, and ordered that nothing should be published which would enable the defendant, and therefore his children, to be identified. The order would remain in force until further order, and could be reviewed by the sentencing judge. When counsel for the prosecution pointed out that the children were not complainants, the judge reiterated the facility for review at the date of sentence.
"An Order has been made under the above mentioned Act in relation to the above mentioned case to restrict the publication thereof.
THERE IS TO BE NO
REPORTING OF THIS CASE
WHICH WOULD ENABLE
THE DEFENDANTS IDENTITY
AND THEREFORE HIS
CHILDRENS IDENTITY TO
This order applies until Further Order."
"(1) Subject to this section a person is not guilty of contempt of court under the strict liability rule in respect of a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith.
(2) In any such proceedings the court may, where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, ... order that the publication of any report of the proceedings ... be postponed for such period as the court thinks necessary for that purpose."
Although the validity of the order dated 15th December 2006 is not directly in question in this appeal, in our judgment the order was not "necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings". Accordingly the invocation of s.4(2) of the Contempt of Court Act 1981 (the 1981 Act) was inapt. Mr Nicol did not suggest otherwise.
"In any case where a court (having power to do so) allows a name or other matter to be withheld from the public in proceedings before the court, the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purpose for which it was so withheld."
"IN THE CROYDON CROWN COURT
CASE NUMBER T2006/0697
ORDER UNDER SECTION 11
OF THE CONTEMPT OF COURT ACT 1981
Whereas this defendant, having pleaded guilty to charges involving the viewing of indecent child images on the internet, and the retention of those images on his computer and other storage media, and whereas the said defendant, having been sentenced to a community order for a period of three years with requirements of supervision and to attend an accredited programme for the rehabilitation of Sex Offenders, as well as to be subject to the monitoring and registration requirements of the Sexual Offences Act 2003 for a period of five years, and whilst it is recognised that there is a legitimate and important interest in the freedom of the press to report court proceedings in full, and whilst it is recognised also the general public revulsion, anxiety, and intensity of feelings over offences involving any element of paedophilia and the abuse and ill treatment of children in whatever form, the court upon the application of the defendant and unopposed by the Crown, and taking into account certain oral representations made by a member of the freelance press and written representations from Time Mirror PLC, Newsgroup Newspapers Ltd and the Press Association, and considering in particular the relevant principles under the Human Rights Act and issues of proportionality, makes the following order under Section 11 of the Contempt of Court Act 1981:
1. No newspaper or other media report of the proceedings shall reveal the names, addresses or schools of the two children as aforesaid, or include any particulars calculated to lead to their identification.
"For the avoidance of doubt the Press are advised that any newspaper or other media report which identifies the defendant or publishes any particulars calculated to lead to his identification will amount to a breach of this order and those responsible will be liable to a fine and imprisonment for contempt of court."
This variation had no practical effect.
(a) a statement from the children's mother. She says that she decided to separate permanently from the defendant and will seek a divorce; that he lives close to her home; that he has frequent contact with the children; that she trusts him not to harm them; that, on advice, she has told them only that he has done something wrong; that, because of their unusual surname, public identification of him would lead parents at their school and others to realise that he is their father; and that she is concerned that in any event they would be teased and bullied by other children.
(b) a statement from the social worker allocated to the family by the local authority. He says that the children have been removed from the Child Protection Register; that, were the defendant publicly identified, the children would in effect need to be given sexually explicit information which they are not old enough to receive without emotional distress; and that the knowledge of their father's offences on the part of their peers would prejudice their social integration.
(c) two further letters from the children's headteacher. She says that public identification of the defendant would immediately put the children at risk of teasing or bullying and might do serious psychological damage to them; that, unless conducted carefully over time, an explanation of his offences would be traumatic for them and that, if the court were to allow the appeal, it should at least delay publicity until they have had access to psychological services in helping them both to cope with the likely reactions of others and to find appropriate ways of expressing their distress.
(d) a report from a consultant child psychiatrist. She says that explanation to the children of the offences committed by the defendant needs to be given gradually and in accordance with professional planning and that, in the event of his public identification, the children would instead learn of them in an unplanned, haphazard manner which would be likely to make them angry, unhappy and isolated.
"The High Court may by order (whether interlocutory or final) grant an injunction...in all cases in which it appears to be just and convenient to do so"
Finally Mr Nicol advances the submission that these powers of the High Court were extended to the Crown Court by s.45(4) of the Supreme Court Act 1981.
"Subject to section 8 of the Criminal Procedure (Attendance of Witnesses) Act 1965 (substitution in criminal cases of procedure in that Act for procedure by way of subpoena) and to any provision contained in or having effect under this Act, the Crown Court shall, in relation to the attendance and examination of witnesses, any contempt of court, the enforcement of its orders and all other matters incidental to its jurisdiction, have the like powers, rights, privileges and authority as the High Court."
"Power to prohibit publication of certain matters in newspapers" and subsection (1) provides:-
"In relation to any proceedings in any court ... the court may direct that -
(a) no newspaper report of the proceedings shall reveal the name, address, or school, or include any particulars calculated to lead to the identification, of any child or young person concerned in the proceedings, either as being the person by or against or in respect of whom the proceedings are taken, or as being a witness therein;
Section 39(1) has no direct application to this case: for the defendant's children were neither complainants "by ... whom", nor defendants "against ... whom", nor victims "in respect of whom", the proceedings were taken, nor witnesses in them. Mr Nicol nevertheless argues that in such cases the Crown Court is well accustomed to exercise a discretion which now requires not only reference to the welfare of children but a balancing of competing Convention rights; that the power under s.39(l) is inevitably but significantly described as "in relation to [the] proceedings in [the] court"; and that it is but a small step to discern in the Crown Court an analogous statutory power available for exercise in favour of children who, though not "concerned in the proceedings" in any of the respects specified by the subsection, may be just as likely to suffer significant harm if they are identified. Mr Millar, by contrast, but with considerable force, reminds us that Lord Steyn in In Re S (a child), observed:
"... in regard to children not concerned in a criminal trial, there has been a legislative choice not to extend the right to restrain publicity to them. This is a factor which cannot be ignored."
"..., in relation to the attendance and examination of witnesses, any contempt of court, the enforcement of its orders and all other matters incidental to its jurisdiction, ..."
First, as Mr Nicol concedes, the use of the word "other" demonstrates that the matters previously specified, that is relating to witnesses, contempt of court and enforcement, are themselves "matters incidental to its jurisdiction". Second, so Mr Millar and Mr Tomlinson in effect submit, a golden thread runs through all three matters and illuminates the meaning to be ascribed to the words "incidental to": they are areas in which the powers may be needed in order to achieve the proper despatch of the proceedings before the court. This requires that the witnesses should attend and be examined, that contempts of court should be punished and that orders should be enforced. They concede that the powers conferred by s.45(4) may be exercised after the end of the proceedings: a contempt of court may, for example, have brought the proceedings to a premature end or indeed be perpetrated during their aftermath, for example, by an intimidating approach to a juror. However they argue that this consideration does not derogate from the proposition that the powers granted by the subsection are conferred in aid of the proper despatch of the proceedings. From this they argue that the protection of the rights of the defendant's children was remote from the proper conduct of the defendant's trial at the Crown Court.
"23. Of course the power of the Crown Court to grant injunctions is strictly limited to the specific matters that are set out in section 45(4). There is no general power in the Crown Court to grant injunctions. But I am satisfied that the Crown Court has the power to grant an injunction to restrain a threatened contempt of court in relation to a matter that is before the Crown Court in question."
This decision seems unimpeachable. Mr Nicol points to Aikens J's use of s.45(4) as a source of power to make an injunction such as can be made in the High Court by virtue of s.37. On the other hand Mr Millar relies on its use "to restrain a threatened contempt of court in relation to a matter that is before the Crown Court". Reasonably enough Mr Nicol responds that the judge's words were not designed to be prescriptive of the ambit of the subsection, but to identify the particular mischief at which his order was aimed. Nevertheless Mr Millar suggests that this decision provides a prime example of the proper use of the subsection, to ensure the proper despatch of the proceedings.
"... 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."