England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		19th May 2005

1. LORD JUSTICE ROSE: This is an appeal by way of Case Stated from a decision of District Judge (magistrates' court) Caroline Tubbs sitting at Bow Street Magistrates' Court on 18th August 2004.
2. The question at the heart of this appeal is a simple one, namely, was there a case for the appellant to answer that she was in breach of sections 1 and 5 of the Sexual Offences (Amendment) Act 1992. The District Judge concluded that there was. Thereupon the appellant, on legal advice, pleaded guilty. The appellant, by reference to much learning in relation to the European Convention on Human Rights, none of which was canvassed in the court below, contends that there was no case to answer and that the conviction should be quashed.
3. Because of the nature of the question which arises, it is necessary to refer to the facts in some detail. The allegation was that, between 25th and 29th November 2003, the appellant, who was, and is, the editor of the magazine Marie Claire, which is part of the IPC Publishing Group:

"... where an allegation had been made of Incitement to Gross Indecency with a child under the age of sixteen years, against one Toby Studabaker, published the name and photograph of a person, that being likely to lead members of the public to identify that person as the person against whom the offence was alleged to have been committed,

Contrary to Section 1 and 5 [of the Act]"

to which I have already referred. Appropriate consent to that prosecution was given by the Attorney General and a hearing took place before the District Judge on 18th August 2004.

4. The facts were not in dispute. On 12th July 2003 a 12-year old girl S went missing from her home and travelled to Germany with a 31-year old American man called Studabaker whom she had met on the internet. Her passport, and some of her belongings, were missing. It was suspected that she and the American may have gone abroad. On 15th July, a warrant was issued by Wigan Magistrates for the arrest of Studabaker for offences of abduction of a child and abduction of an unmarried girl under 16. Neither of those offences were ones to which the Sexual Offences (Amendment) Act's prohibition on publication of details apply.
5. The Greater Manchester Police enlisted the help of the national and international media in an attempt to trace S's whereabouts. There were articles in most national newspapers and there were news items on television. On 16th July, S returned to the United Kingdom and the custody and control of her parents. On the same day Studabaker was arrested in Germany and agreed to be extradited to the United Kingdom. The following day the Greater Manchester Police issued a statement thanking the media for their help and asking that future reporting be restricted. They circulated, by e-mail, that message to those who were in contact with their press office. Those organisations did not include either Marie Claire or IPC. Later the same day, the Police Press Office issued a statement on behalf of S's family thanking the press and asking that media attention should cease.
6. As a result of S being interviewed by the police, a number of sexual offences came to light. On 24th July, Studabaker was arrested for inciting a child, under the age of 16 years, to commit an act of gross indecency, contrary to the Indecency with Children Act 1960 and section 2 of the Sexual Offences (Conspiracy and Incitement) Act 1996. That was an allegation to which the prohibition on publication of identifying material in the 1992 Act applied.
7. On 13th August a Miss Billington of the Police Press Office sent an e-mail to all those on the Studabaker mailing list, that is to say, all those reporters who had made enquiries about S at any of the regional media outlets. That e-mail explained that a warrant regarding an offence of inciting a child to commit an act of gross indecency had been obtained and it also explained the police's view that any identification of Studabaker would lead to the identification of S. The e-mail outlined the laws protecting S's identity.
8. On 21st August, Studabaker was brought to this country and the following day he appeared before the Wigan Magistrates and was remanded in custody to appear at the Manchester Crown Court on 3rd November 2003. An order was made under section 39 of the Children and Young Persons Act 1933 prohibiting publication of particulars leading to the identification of a child, victim or witness. On 3rd November the crown court renewed that section 39 order. Studabaker pleaded not guilty to both the abduction charges.
9. Between 25th and 29th November the January 2004 issue of Marie Claire was published. It contained a close up photograph of the face of S. It gave her full name and it said:

"the twelve-year-old who left her Manchester home to be with 31-year-old former US marine Toby Studabaker, is reunited with her parents after a five-day odyssey through Frankfurt and Amsterdam. Studabaker... was accused of sexual misconduct involving two girls under thirteen in 1998."

10. On 17th December 2003, the appellant was interviewed by the police. She admitted being the editor of Marie Claire and having been the editor of the January 2004 edition. She was in charge of the normal editing process. The content of the magazine was checked by an editorial team. She said the article was not published with the intent to breach any known Act of Parliament. Had she known the various statutory provisions in place she would not have published the article. She had no knowledge that any enquiries were made of either the magistrates' court or the crown court and would not have known to make any such enquiries.
11. In a second interview she confirmed that the article in question was part of an annual review of the year 2003. She did not know there were proceedings taking place in relation to Studabaker.
12. On 13th February 2004, Studabaker pleaded guilty to incitement to commit gross indecency, a protected offence so far as details in relation to identity are concerned, and an offence of abduction. The details of those offences were widely reported in the media, without the child's name or photograph. In April he was sentenced and that also was reported in the media without naming the child involved.
13. In the light of that material, a submission was made on behalf of the defendant, to the district judge, that there was no case to answer. Section 1 of the Sexual Offences (Amendment) Act 1992, so far as is relevant, provides:

"Where an allegation has been made that an offence to which this Act applies has been committed against a person, neither the name nor address, and no still or moving picture, of that person shall during the person's lifetime-

(a)

be published in England and Wales in a written publication available to the public;

…

if it is likely to lead members of the public to identify the person as the person against whom the offence is alleged to have been committed."

14. As I have indicated, the district judge rejected the submission of no case and thereupon the defendant pleaded guilty.
15. Section 5 of the 1992 Act provides, omitting immaterial words:

"(1) If any matter is published ... the following persons shall be guilty of an offence ...

(a) in the case of publication in a newspaper or periodical ... any editor."

Subsection (5) of the same section provides:

"Where a person is charged with an offence under this section it shall be a defence to prove that at the time of the alleged offence he was not aware, and neither suspected nor had reasons to suspect, that the publication or programme in question was of, or (as the case may be) included, the matter in question."

16. The Act did not contain, at the time of trial before the district judge, section 5(5A) which has, since 7th October 2004, by virtue of Statutory Instrument 2004/2428 Article, been inserted into it. That provides, so far as is material:

"it shall be a defence to prove that at the time of the alleged offence he was not aware, and neither suspected nor had reason to suspect, that the allegation in question had been made."

It is on the insertion of that provision that Mr Spearman QC, on behalf of the appellant, relies, in part, in his submissions to us.

17. The provisions of the Human Rights Act 1998, and the European and English jurisprudence in relation to the European Convention on Human Rights, gives rise to principles which are not in dispute before us. They are eruditely and accurately rehearsed in Mr Spearman's written submissions to this court and it is unnecessary to rehearse them in any detail. There is, of course, by section 2 of the Act, an obligation on this court to take into account any judgment, decision, or advisory opinion, of the European Court of Human Rights. There is a duty under section 3, so far as possible, to read domestic legislation and give effect to it in a way compatible with convention rights. There is also, under section 6, an obligation on public authorities to act compatibly with convention rights and public authorities, for that purpose, clearly include prosecuting authorities.

Article 10 of the Convention, which is at the heart of the present appeal, is in these terms:

"1. Everyone has the right to freedom of expression. These rights shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a domestic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

18. In the present case, it is common ground that the domestic statutory provisions, to which I have referred, interfere with the right to freedom of expression conferred by Article 10. It is also common ground that that legislation pursues a legitimate aim in protecting the rights of others, namely, in this case, a 13-year old child. The only issues before us which are contentious are as to whether the statutory prohibition was necessary in a democratic society and whether the nature of the conduct prohibited was sufficiently, clearly and precisely defined so that it can properly be said that the conduct was: "prescribed by law."
19. The submission, which is made by Mr Spearman, in reliance on the speech of Lord Bingham in R v Shayler (2003) 1 AC 247 at paragraph 23, is that an interference with the right to freedom of expression "cannot be said to be necessary in a democratic society unless relevant and sufficient reasons are given by the national authority to justify the restriction, the restriction on disclosure corresponds to a pressing social need and the restriction is proportionate to the legitimate aim pursued."
20. In that regard Mr Spearman also referred to paragraphs 60 and 61 of the speech of Lord Hope in Shayler and to the speech of Lord Steyn in R v (Daly) v the Secretary of State for the Home Department [2001] 2 AC 532, in particular, at paragraph 27. Mr Spearman submits that the interference here occasioned by the statutory prohibition was not necessary. It was not proportionate and it was not of the minimal nature which the authorities require. In support of that proposition Mr Spearman relies on the fact that Parliament, in providing the additional defence, by way of amendment since October 2004, in section 5(5A), has demonstrated that the previous legislation was not proportionate in support of the admitted aim.
21. As it seems to me, there are two difficulties with that submission. First, there is no information before this court, just as, inevitably, because the matter was not raised in the court below, there was no information in the Magistrates' Court, as to why Parliament made the amendment, by the Youth Justice and Criminal Evidence Act of 1999, and as to why that provision was not brought into force until October 2004.
22. The second difficulty, as it seems to me, is the Strasbourg decision as to the inadmissibility of a complaint made in Brown v the United Kingdom in application number 44223/98 in 2002. Mr Spearman invites the court to pay little, if any, attention to that decision for no less than eight reasons. First, he submits, rightly, that it is not binding: we merely have to have regard to it under section 2 of the Human Rights Act. Secondly, it was merely an admissibility decision rather than a full judgment of the court and such a decision properly attracts less weight. In that regard he refers to certain passages in the well-known textbook by Clayton and Tomlinson on the Human Rights legislation, which it is unnecessary to rehearse.
23. Thirdly, he points out, rightly, that the defendant in the Brown case was the publisher and not the editor of the relevant publication. Fourthly, he says, rightly, that different legislation, namely the legislation protecting the identity of rape victims, was being considered in Brown. Fifthly, there was, in the decision, no reference to the Youth Justice and Criminal Evidence Act. Sixthly, it was not apparently disputed in that case whether the offence was properly prescribed by law. Seventhly, there was no evidence in that case that the allegation was not known to the publisher.
24. Eigthly, the English jurisprudence, by which this court is bound, in relation to proportionality, has subsequently been developed along the lines clearly and helpfully identified by Mr Spearman, and we must have regard to this. As it seems to me, none of those matters, either separately or in conjunction, are such as to suggest that this court should not give significant weight to the decision in Brown.
25. At that point it becomes necessary to refer to certain passages in the decision. At page 6 appears the following:

"The applicant submits that his conviction constitutes a disproportionate interference with the right to freedom of expression under Article 10 of the Convention. He points out that imposing criminal liability upon non-editorial newspaper managers can lead to undue interference by them with the content of material to be published and can create a disincentive to invest in newspapers. He maintains that, in order to strike a proper balance between freedom of expression and the legitimate aim pursued by the Act, such fault should be required to be proved on the part of such managers, which should entail more than failure to read a newspaper in advance of publication... He maintains that if mere access to editorial contents is sufficient to prevent application of the section 5(5) defence, then that defence becomes useless.

The Court notes that the parties agree that the relevant provisions ... restrict freedom of expression for the purposes of Article 10 of the Convention, and that the restriction pursued a legitimate aim. It notes also that the restriction was prescribed by law. The key issue in this case is therefore the proportionality of the impugned measures

...

The Court notes that the relevant provisions of the Act did not require the prosecution to prove that the applicant was at fault in any way in connection with the publication of the offending article

... In particular, section 4(3) requires trial judges to lift the prohibition in certain cases where the public interest so requires. Further, section 5(5) allows those charged, like the applicant, with the section 4(5) offence to escape criminal liability by proving, on the balance of probabilities, that they were not aware, and neither suspected nor had reason to suspect, that the publication concerned would identify a rape victim."

26. (That provision mirrors the provision in the legislation in which we are considering) The court went on:

"The Court considers that it may be legitimate to hold newspaper proprietors in part responsible for the contents of their newspapers when those contents impinge upon the rights of others (cf Surek v Turkey (No.1) [GC], no. 26682/95, S 63, Reports of Judgments and Decisions 1999-IV)...the Court does not consider that the applicant's conviction and fine constituted a disproportionate interference with the right to freedom of expression under Article 10 of the Convention.

It follows that this part of the application is inadmissible as being manifestly ill-founded..."

27. Understandably, Miss Whitehouse for the DPP relies on this decision. In my judgment this court is entitled to derive sustenance from it to support the conclusion that the statutory offence, albeit of strict liability, was framed in terms properly to be regarded as proportionate and necessary in a democratic society for the protection of victims in rape cases. There can, in my judgment, be no different conclusion in relation to child victims of sexual offences.
28. The next matter is whether or not the conduct is sufficiently precisely defined for it to be said that it was properly prescribed by law. Mr Spearman submits that the word "likely" has received a variety of different definitions in different contexts. That is so. That word, like any other, derives its flavour and meaning from its context. It does not, to my mind, follow that, because likely may mean, and has been construed as meaning, different things in different contexts, the phrase "likely to lead members of the public to identify that person" are so imprecise as to be regarded as not properly prescribing the conduct referred to.
29. A useful definition of "likely to lead to identification" is to be found in the judgment of the former President of the Family Division, Dame Elizabeth Butler Sloss, in the Attorney General v Greater Manchester Newspapers Limited The Times, 7th December 2001, which is cited in paragraph 20 of the judgment, of Simon Brown LJ, in the Cream Holdings Ltd v Banerjee [2003] Ch 650. She said:

"The use of the word 'likely' in the order is not to be equated with statistical probability that it will lead to the identification of the boys or their whereabouts but to the real risk, the real danger, the real chance that it may lead to that dangerous situation."

Miss Whitehouse relies on this.

30. As it seems to me, there is nothing so imprecise in the phrase "likely to lead" as to preclude a proper prescription of the conduct to which this appellant pleaded guilty. It is implicit in what I have said already that, in my judgment, there is, in this case, no need to read into the unamended legislation the recently introduced statutory defence in (5A). The legislation in unamended form, for the reasons which I have sought briefly to give, was compatible with the Convention before that amendment was introduced.
31. The admitted facts, which at an earlier stage I set out in detail, were, at the close of the prosecution case, such as were capable of demonstrating strong grounds on which a suspicion that an allegation of sexual misconduct against this girl could properly be based. It was, if there was any doubt about the matter, clearly open to the defendant to make enquiries of the police in order that she might be equipped with all that information, to which I have referred, which had been circulated to persons other than her by e-mail and otherwise.
32. In the light of those considerations, as it seems to me the district judge was fully entitled to reject the submission made of no case to answer in the light of the material in relation to which she was addressed. There is no reason shown to this court, despite Mr Spearman's valiant attempts, which would justify us in reaching any different conclusion. It follows that, for my part I would dismiss this appeal.
33. MR JUSTICE CRANE: I agree. I agree, in particular, with what my Lord has said about the case of Brown.
34. On the issue of proportionality I only add this: on 16th July 2003, the 12-year old girl S was returned to her parents. On 17th July, the man, Studabaker, was arrested. He was returned to England and appeared in court on 22nd August (although it was not reported that there was any allegation of a sexual offence). It is clear from the article that was published in November that those responsible for the publication must have been well aware of those simple facts, as indeed in August most of the public had been as well.
35. The effect of Mr Spearman QC's argument is that under Article 10 the present appellant should at least have been able to argue that she had no reason to suspect that a sexual allegation involving the child had been made. It seems to me, at least, that such an argument, namely that in November she had no reason even to suspect that, would have been an argument wholly removed from reality.
36. This, as the case of Brown recognises, is a necessary restriction on freedom of expression. For my part, it seems to me very little to ask of the media that they take precautions to prevent publication which might affect a 12-year old victim in circumstances such as these.
37. MISS WHITEHOUSE: May I ask for an application of the costs in the case. I have a summary assessment of £2,900.
38. LORD JUSTICE ROSE: First of all, as to principle?
39. MR SPEARMAN: I cannot resist the principle.
40. LORD JUSTICE ROSE: Can you resist the quantum?
41. MR SPEARMAN: Probably not. It is the first time I have heard of it--
42. LORD JUSTICE ROSE: We are familiar with schedules of costs being submitted, almost invariably, at the very last moment. Perhaps, unless you suggest otherwise, the appropriate order is that the appellant pay the respondent's costs to be taxed failing agreement.
43. MR SPEARMAN: My Lord, yes, I could not resist that.