England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
DIVISIONAL

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/07/2008

Lord Justice Latham:

1. This is a claim by way of judicial review to quash the decision of District Judge Purdy on the 15^th May 2007 when he refused to stay private prosecutions brought by the interested party against the claimants. The summonses alleged breaches by the claimants of the provisions of ss.97 and 103 of the Children Act 1989, as amended, in that they were responsible for publishing material which was likely to identify the interested party's child, who was at that time involved in relevant proceedings in the county court. She has appeared before us in person, and has presented her case ably, assisted by Dr Pelling, who has assisted her not only in these proceedings, but also in presenting her case to the district judge. Dr Pelling has, in addition, sought to obtain from the court a declaration that reporting these proceedings in full, could not constitute, in itself, a breach of ss.97 and 103 of the Act.
2. The interested party was involved in 2006 in court proceedings with her husband relating to their daughter. These proceedings had become acrimonious. It had got to the stage that a judge had ordered that a penal notice be attached to an order for contact to be obeyed by the interested party, on the basis of the father's allegations that he had been denied contact under earlier orders. The interested party has always maintained that she had good reason for doing what she did.
3. Be that as it may, she felt aggrieved at the way she was being treated by the court. In order, as she put it, to see the other side of the story, she became interested in the organisation Fathers 4 Justice. She met and started a relationship with Matt O'Connor, the founder of the organisation; they now have a child of their own. She became active in the organisation. And on Saturday the 21^st May 2006, together with other members of the organisation, she took part in a demonstration during the live broadcasting of the National Lottery draw that evening. She, together with others, took off their outer tops to reveal t-shirts carrying the Fathers 4 Justice logo, went on to the stage, and shouted slogans supporting its aims.
4. Not surprisingly, this attracted media attention, not only because of the demonstration itself, but because of the interested party's involvement with the organisation. She was interviewed by three newspapers, the Mail, the Sun, and the Southern Daily Echo. Each of those newspapers carried a report of the demonstration in their editions on Monday the 22^nd May in which she was named.
5. The report in the Daily Mail, of which the first named claimant is the editor, and the second named claimants are the owners, headed the report:

""Hypocrite" of lottery demo."

Together with the report, the Daily Mail published a posed photograph of the interested party and Matt O'Connor taken by a Daily Mail photographer and a still from the television broadcast showing her on the stage wearing the t-shirt. The article described the dispute between the interested party and her husband identifying him by name (which is not the same surname as is used by the interested party). Both the Sun and the Southern Daily Echo reported the demonstration in similar terms, in the sense that they set out the fact that she was in dispute with the father and was aggrieved by the way the courts had dealt with her case which is why she had become involved with Fathers 4 Justice. The Sun also identified the father's name, and reported someone familiar with the case as describing her joining the campaign for better custody rights for fathers as "hypocrisy".

6. The interested party made no formal complaint at that stage, but agreed to be interviewed on the 23^rd May 2006, together with Matt O'Connor by a Daily Mail journalist, Helen Weathers, who previously had written an article about Matt O'Connor. The interview took place, and photographs were taken; but the article written as a result was never published. I will return to that interview later in the judgment.
7. Thereafter, the interested party took no further steps to complain to the Daily Mail, or to the Press Complaints Commission. On the 17^th July 2006, she attended at the City of Westminster Magistrates Court and applied for summonses against the claimants on the basis that the article of the 22^nd May 2006 amounted to an offence under s.97 (2)(6) of the Children Act 1989. The summonses were granted and served. The claimants then applied for a stay of proceedings on the grounds that they were an abuse of the process of the court. District Judge Purdy heard argument and evidence on the 1^st and 2^nd May 2007, and on the 15^th May 2007 dismissed the application to stay in a written ruling. The claimants challenge that ruling before us essentially on the grounds that no reasonable tribunal could come to any other conclusion but that the prosecution is an abuse of process on the material which was presented to the district judge.
8. The relevant provisions of the Children Act 1989, as amended, are as follows:

"Section 97 Privacy for children involved in certain proceedings

…

(2) No person shall publish to the public at large or any section of the public any material which is intended, or likely, to identify-

(a) any child as being involved in any proceedings before the High Court, a county court or a magistrates' court in which any power under this Act or the Adoption and Children Act 2002 may be exercised by the court with respect to that or any other child…

…

(6) Any person who contravenes this section shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 4 on the standard scale.

…

Section 103 Offences by bodies corporate

(1) This section applies where any offence under this Act is committed by a body corporate.

(2) If the offence is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity he (as well as the body corporate) shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly."

9. The proposed prosecutions are therefore based on the assertion that the material contained in the report in the Daily Mail on the 22^nd May 2006 was "likely" to identify the child, because of the identification of the interested party and the father, and the details given of the contested proceedings relating to the child. The irony, to use a relatively neutral word for the moment, is that one of the matters about which Fathers 4 Justice complain is what is described as the secrecy of the family courts; this irony is compounded by the fact that the interested party has been advised and helped by Dr Pelling, who is a doughty campaigner for open justice in family proceedings.
10. In order to evaluate the claimants' case, it is necessary to consider in a little more detail the evidence that was before the district judge. This consisted of written and oral evidence. On behalf of the claimants, that consisted of the statements of Elizabeth Hartley, Daniel Newling, and Helen Weathers, and exhibits to those statements, and the oral evidence of Daniel Newling and Helen Weathers. The evidence on behalf of the interested party was statements made by herself and Dr Pelling, and exhibits, and the oral evidence of herself and Dr Pelling.
11. As far as Elizabeth Hartley's evidence was concerned, that was primarily directed to providing a history of the claimants' attempts to persuade the Attorney General or the Director of Public Prosecutions to take over the prosecution. Daniel Newling's evidence was of critical importance. He was the journalist who interviewed the interested party on the 21^st May 2006 and wrote the article which was published on the 22^nd May 2006. Through contacts with Fathers 4 Justice, he discovered that the interested party had been the female demonstrator, and was in a relationship with Matt O'Connor. He interviewed her over the telephone. He described how he asked her why she became involved in Fathers 4 Justice, and also her about her family. He said:

"Initially she was not very keen to talk to me about her family."

However, there is no doubt that she then gave him detailed information about the court orders and the fact that because she was aggrieved, she made contact with Fathers 4 Justice. She wanted some of the conversation to be off the record; and he made no notes in those parts of the conversation. He accepted that she did not refer to or identify the father of the child at any stage of the conversation. That was information which that he obtained from elsewhere. He contacted the father who made it clear that he did not want any publicity to be given to the case.

12. In his oral evidence, Daniel Newling confirmed his written statement. He said that he could not remember the interested party ever mentioning section 97 of the Children Act to him. The impression that the notes of evidence give is that he at that time did not know about the provisions of s.97 and would have been put on his guard by any mention of it. He confirmed that the interested party was not willing to talk about her child but anxious to talk about her connection with Fathers 4 Justice and her part in the demonstration.
13. Helen Weathers' written evidence was that she had published an article about Fathers 4 Justice on the 28^th June 2005. This article was the result of an interview that she had had with Matt O'Connor and the interested party at Matt O'Connor's house. During the course of the interview the interested party was willing to participate, but was cautious in relation to speaking about her husband. When Helen Weathers realised that the court proceedings relating to the child were still ongoing, she, realising there were restrictions on reporting such circumstances, did not go into detail. However, it should be said that the article identified the fact that the interested party was "locked in a bitter dispute" over the child.
14. Following the demonstration on the 20^th May 2006, Helen Weathers said that she was asked by her editor to write a follow up piece about the interested party. She therefore contacted Matt O'Connor and arranged to meet him and the interested party on the 23^rd May 2006. It would appear that the paper had agreed to pay £2,500 to Fathers 4 Justice if an article was published. In the interview the interested party was "much more open" about what had happened in the family proceedings and gave full details. She did not ask for anything to be kept off the record in the interview. At no stage did she say anything about the report by Daniel Newling. She said that the child had not been at all upset by the demonstration, but to the contrary had said "Wow, mum, you're famous". In oral evidence Helen Weathers confirmed her statement. She also confirmed that in the interview which resulted in the June 2005 article, the interested party had not wished to talk about the relationship with her husband, but that in the interview of the 23^rd May 2006, she was keen to give full details of the dispute. The interested party was anxious to give the full story as the matter was now in the public domain. She had no idea why her draft article produced as a result of that interview was not published.
15. The significant part of Dr Pelling's written evidence for our purposes is that he dealt with the issue raised, not unnaturally, by the claimants, namely that the interested party had only applied for summonses against the claimants. He confirmed the interested party's account which was that she had spent a substantial proportion of the day at the Westminster Magistrates Court before eventually obtaining the summonses, and that she simply did not have enough time to attend the other courts which would have been necessary in order to obtain summonses against the Sun or the Southern Daily Echo.
16. The interested party, in her statement, stated that in the interview with Daniel Newling she was reluctant to give any information as to the details of the family dispute, repeatedly telling him that family court proceedings were subject to s.97 of the Children Act 1989. She refused to identify her husband or to give personal details of the family court proceedings. She appreciated that Daniel Newling needed to understand the background so that she gave him that in general terms. Her intention was simply to speak about and publicise the Fathers 4 Justice cause. She was therefore horrified to find that the article identified her husband and said:

"I find it hard to believe that anyone reading the Daily Mail article would accept that I would be a party to, or had provided, such detailed information to create and support such a sexist and libellous article about myself".

17. She then gave her explanation as to why it was that she was only able in the time available to apply for the summonses against the claimants. She and Dr Pelling tried to make arrangements to attend the Thames Magistrates Court, which is the appropriate one for the publishers of the Sun, but they were not able to do so before the claimants made their first request to the Attorney General to take over the prosecution, as a result of which she thought that it was not appropriate to commence any further proceedings herself.
18. In light of that evidence, and the background material, the claimants' submitted to the district judge that he had jurisdiction to stay the proceedings as an abuse of the process of the court, essentially on the second of the two grounds identified by the House of Lords in R v Horseferry Road Magistrates Court ex parte Bennett [1994] 1 AC 42 namely that the prosecution would amount to an abuse of process because it offends the courts sense of justice and propriety to be asked to try the claimants in the circumstance of this case. It was submitted that the proceedings had been instituted in bad faith, spite or some other oblique motive as described by the Court of Appeal in Raymond v Attorney General [1982] 1 QB 939. In the present case there was, it was submitted, clearly an improper motive, partly based on the interested party's expressed view that the article in question was libellous and sexist, and was therefore being brought to punish the claimants, but not for the mischief which the statute was aimed, and partly in order to publicise yet again the message of Fathers 4 Justice. It was further infected by the involvement of Dr Pelling who had his own agenda which could not by any stretch of the imagination be said to include the safeguarding of anonymity in relation to proceedings involving children. They pointed to the fact, that, although an explanation had been given, no prosecutions had been brought against the Sun or the Southern Daily Echo. The interested party had essentially created the publicity herself by identifying herself, not simply in the sense of demonstrating on a live television programme, but explaining why she had taken part on behalf of Fathers 4 Justice in the interviews on the Sunday. And when the prosecution was brought, Fathers 4 Justice issued a press release about which she must have been aware, in which the details which identified the child as being the subject matter of proceedings were once again repeated. Accordingly, it was submitted, the prosecution was essentially no more than a publicity stunt for Fathers 4 Justice and not for any proper motive concerned with the rights of the child or the administration of justice.
19. The interested party submitted that she was at no stage personally responsible for the information that was published. She had been, admittedly, seen on the television show; but that had not of itself identified her by name, let alone the background of the proceedings which had led her to support Fathers 4 Justice. She had been reluctant to talk to the journalists about the details of the dispute that she was involved in with the father, and in particular repeatedly sought to remind Daniel Newling of the restrictions on reporting which were the consequences of s.97. She agreed to the interview with Helen Weathers because she felt that she needed to defend herself against the charge of hypocrisy which had been levelled at her in the article in the Mail on the 22^nd May. She was genuinely concerned to protect her child from publicity. And she repeated the explanation that she had given in evidence as to why she had not pursued prosecutions against the Sun and the Southern Daily Echo. She submitted that Dr Pelling's involvement was nothing to do with the case; he was merely acting as her advisor and litigation friend who was concerned that so long as s.97 remained on the statute book it should be properly enforced. As far as the publicity in relation to the prosecution was concerned, she said that that was entirely the responsibility of Fathers 4 Justice, and had nothing to do with her.
20. The district judge gave a written ruling dismissing the application for a stay. He headed his ruling:

"Issue: "Motive" of private prosecutorix (sic) in pursuing prosecution in respect of S.97 and S.103 Children Act 1989 (I.D. of child involved in family court proceedings)."

21. He related the history of the matter, and stated that, although not dealing with every argument or piece of evidence that had been advanced, he had "reviewed everything" before him. In the course of relating the background, he said:

"NT accepts giving interviews and seeking publicity for F4J but stresses her coyness about discussing her own family court case or doing anything to identify her daughter or her ex husband whenever she spoke to journalists. The journalists called seem to accept this."

22. His further factual findings were as follows:

"I find that Mr Dan Newling as he said himself, along with The Daily Mail was responsible for complying with the law whether or not NT spoke about S.97 or not. Both Mr Newling and Miss Weathers agreed with NT's cross examination that she was very reticent when asked about her personal family court proceedings and would not reveal either her ex-husband's name or contact details nor provide details about their daughter. Mr Newling accepted he obtained the details from her ex-husband from sources, some hostile, other than from NT or Mr O'Connor. Mr Newling seemed to be alarmingly ignorant of the legal minefields surrounding family court proceedings. Not so Miss Weathers who demonstrated a praiseworthy instinct for caution and realisation any article of this type risked failure at the hands of the in house lawyers. Why this second article was never published remains undisclosed. As a fact I find NT's motive for launching this prosecution "mixed". In part to protect her daughter's identity and pursue a national paper for apparently flouting the law but also with an eye to some potential publicity for F4J, an organisation which depends upon the oxygen of publicity to further its cause. I do not forget that The Daily Mail published this article having itself very actively pursued the story following the events live on T.V. that Saturday night."

23. He then referred in his Conclusion to the claimant's argument as to the duties of a prosecutor, particularly passages in the judgment of Buxton LJ in R v Belmarsh Magistrates Court ex.p Watts [1999] Cr. App. R 188, to which I will return. Ultimately his reasoning was as follows:

"In my judgment the test on all the facts is Lord Lowery's (sic) in Bennett (1994) namely whether the "courts sense of justice and propriety" is offended by this "particular case". Dr Pelling may seem paradoxical in championing open justice while seeking to enforce the use of S.97 & 103. No one can deny, he produces the correspondence, his attempts to gain a response for this non use from the Law Officers. I do not see in any of that anything that offends the court's sense of "justice and propriety". Likewise NT's stance in this particular case does not to my mind offend that principle either. Her motives may be mixed but not such as to cause offence at the instigation of these proceedings against a national paper. Unwise or courageous at taking on such a powerful and resourceful entity maybe the public's views depending on one's stance. Support for/against or indifference towards the F4J cause seems to me equally irrelevant to the legal test on these facts. Accordingly weighing and applying the legal principles I decline to stay this prosecution against either Defendant."

24. The claimants submit that the district judge: (i) failed to have regard to any of the grounds relating to conduct on which the claimant sought a permanent stay or to deal properly with the evidence in that regard; (ii) the district judge failed to take into account the principles relating to the responsibilities of a private prosecutor; (iii) the district judge failed properly to assess the motives and bona fides of the prosecutor and came to conclusions of fact which were manifestly unreasonable; (iv) the district judge materially misunderstood the evidence as to the apparent reticence of the interested party in relation to the family proceedings and in particular failed to differentiate between any reticence she may have had in relation to the details of her husband and child and the fact that by identifying herself as a person involved in proceedings she was thereby informing the world of material that was likely to identify her child as being involved in proceedings before the court.
25. The interested party submits that the district judge took into account all relevant considerations. He did not misdirect himself in any way in law. He concluded, as he was entitled to, that the interested party had mixed motives, which did not in themselves preclude her from being entitled to bring a private prosecution. The findings of fact as to her reticence in relation to her husband and child and the background matters were fully justified on the evidence and supported his conclusion that there was nothing in that evidence which offended the court's sense of justice. The thrust of the claimants' submissions was an attack on her bona fides, and the evidence was essentially directed to her motives. Accordingly, the district judge was not required to deal with her conduct, save in so far as it shed light on her motive. She presented her case herself clearly and effectively, with the help of Dr Pelling.
26. There has been no dispute before us about the jurisdiction of the Magistrates' Court to stay proceedings on the grounds that they amount to an abuse of the process of the court. There are essentially two main strands of cases where the jurisdiction has been exercised. The first is where it would be impossible to give the accused a fair trial. That is not suggested in the present application. Second, is where it would offend the court's sense of justice for the prosecution to proceed, to use the words of Lord Lowry in ex p Bennett (supra) to which we have already referred. And in this context, both motive and conduct can clearly be relevant. As far as motive is concerned, proceedings tainted by mala fides or spite or some other oblique motive may fall into this category: Raymond v Attorney General [1982] 1 QB 939. This was established as long ago as 1909 when in R v Baines [1909] 1 KB 258, Bigham J said, "There can be no doubt as to the jurisdiction of the court to interfere where it is satisfied that its process is being used for an indirect or improper purpose."
27. However in Bow Street Metropolitan Stipendiary Magistrate and Anor v ex parte South Coast Shipping Company Limited and Others [1993] QB 645 this court held that the mere presence of an indirect or improper motive in launching a prosecution did not necessarily vitiate it; and the court would be slow to halt such a prosecution in the case of mixed motives unless the conduct was truly oppressive.
28. The principle on which the court acts in such cases was set out by Auld LJ in Re Serif Systems Limited [1997] EWHC Admin 369:

"In my view, it is arguable that improper motives are a relevant matter, depending on the circumstances, in considering whether criminal proceedings before Magistrates are an abuse of process. This is not necessarily a matter of mixed motives of the sort to which Lloyd LJ referred in the ex parte South Coast Shipping Company case. It is for consideration whether there is a primary motive and one which is so unrelated to the proceedings that it renders it a misuse or an abuse of process. I found the reference by Fox LJ in Speed Seal Ltd v Paddington [1985] 1 WLR 1327, 1335, to section 682 of the American Restatement, Second Edition, Torts, a useful touchstone for consideration of the issue:

"One who uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it is not designed, is subject to liability to the other for harm caused by the abuse of process." "

29. As to conduct, it is necessary to examine what sort of behaviour the court expects of a private prosecutor. In ex parte Watts (supra) Buxton LJ said this about the duty of a private prosecutor:

"… at a time where it appears that the bringing of private prosecutions is to be facilitated (see Law Commission Report No. 255, consents to prosecution (1990)) we do well to remind ourselves that a private prosecutor such as Mr Tivnan is still a prosecutor, and subject to the same obligations as a minister of justice as are the public prosecuting authorities."

30. It seems to me that this is an important statement of principle but must be kept firmly in context. Despite the concerns expressed by Lord Bingham as to the value of private prosecutions in Jones v Whalley [2006] UKHL 41 at para 16, they are still one of the means whereby an individual can right what he perceives to be a wrong through the court process. And it is inevitable that many private prosecutions will be brought with mixed motives (hence the decision of this court in ex parte South Coast Shipping Company Limited and Others (supra)). The neighbour who sought to take out a private summons for assault would not merely have the public interest as his motive. Even the R.S.P.C.A. may have its own particular motive in pursuing a particular prosecution. The principle clearly applies to the way in which any private prosecution is presented to the court, in the sense of ensuring that all the relevant material is made available both for the court and for the defence. In other words the actual conduct of the prosecution must be in accordance with the requirements imposed upon public prosecutors.
31. But there is another aspect of conduct which is relevant. It is trite law that a prosecution can be stayed as an abuse of process if state agents have lured a person into committing a crime. The principles applicable when consideration is being given to whether or not such an abuse has occurred in relation to public prosecutions are set out in R v Looseley; Att-Gen's Reference (No.3 of 2000) [2001] 1 WLR 2060 (HL). Whilst there can be no direct comparison between the private prosecutor and the public prosecutor in this context because the considerations in the latter case are clearly coloured by the objection that the state should not use its power to entrap, there is, however, no reason in principle why, by analogy, a private prosecution should not be considered an abuse of process if the crime which is the subject of the prosecution is one that has been encouraged by the private prosecutor or when in some other way the private prosecutor has essentially created the same mischief as that about which he or she complains.
32. Turning then to the decision of the district judge in the light of these considerations, the first thing that has to be said is the district judge was perfectly entitled to come to the conclusion that the prosecution was being brought with mixed motives and that that in itself did not amount to an abuse of process. He was entitled to conclude, on the facts, that the interested party was indeed reticent about identifying her husband and the child and the details of the underlying dispute. But, perhaps because the claimants had concentrated so much on motive, he failed to grapple with the undoubted fact that the interested party, by being prepared to be identified and to describe the circumstances, albeit in general terms, which drove her to become involved with Fathers 4 Justice, had provided material willingly and deliberately which was likely, indeed certain, to identify her child as being the subject of proceedings at least to a section of the public. Her reticence to talk about the details, or to identify her husband or the child cannot absolve her from the consequences of having been prepared to be identified herself in circumstances which were likely, if not certain, to identify the child at least to those who lived in her area. That is the mischief to which s.97 is directed. The fact that the Daily Mail may have been in breach of s.97 itself does not mean that she can properly complain. It seems to me to be a clear case where the court's conscience is offended by the fact that the prosecution is brought by a person who by her conduct was likely, if not certain, to identify the child as being the subject of proceedings to which s.97 applied. I would accordingly allow the claim, quash the district judge's decision and stay the prosecutions as an abuse of the court.

Dr Pelling's Application

33. At the first hearing of these proceedings, Dr Pelling made an oral application for:

"Declaration that s.97 (2) (6) and s.103 Children Act 1989 do not apply to the reporting of a criminal prosecution for an offence under s.97 (2) (6) or s.103 Children Act 1989 nor to the reporting of appellate or Judicial Review proceedings arising out of such a prosecution [and in particular do not apply to the reporting of the instant proceedings in the City of Westminster Magistrates' Court and the High Court]"

34. He asserted locus standi for making the application on the basis of what he described as his "journalistic capacity" and stated that he wished to write about the proceedings both in the Magistrates Court and the High Court referring to all the persons concerned by their names without fear of being prosecuted for an offence under ss.97 or 103. In support of his application he referred to the decision of the Court of Appeal in Pelling v Bruce-Williams [2004] 3AER 875. He identified in particular the passage in the judgment of Thorpe LJ where the Lord Justice said in paragraph 53:

"We do not consider that s.97 (2) of the Children Act 1989 extends to appellate proceedings in this court"

He submits that, when taken with Article 10 of the European Convention on Human Rights, this statement, by analogy, must apply to these proceedings, and, he submits, any Magistrates' Court proceedings.

35. In order to assist the court in relation to this application, the Attorney General appointed an advocate to the court, Jeremy Johnson, for whose assistance we are very grateful.
36. The first question we have to determine is the extent to which it would be right, whatever the merits of Dr Pelling's arguments may be, to entertain an application for a declaration as to the legality of a future course of action. We have been referred to a substantial number of cases, through which a consistent thread can be discerned, namely that the court should not entertain an application for such a declaration except in a truly exceptional case. These decisions are, it is true, decisions in civil jurisdictions where the concern was expressed that there was the possibility of a conflict between the conclusions of a civil court, and the conclusions of a criminal court. But, in my view, the same should apply here, reflecting the underlying reluctance of the court to grant such declarations because of, inter alia, the problem that it is only in a truly exceptional case that a court could, in any event, confidently determine in advance whether any type of conduct would or would not infringe the criminal law.
37. I consider that, it would be wholly inappropriate for this court to entertain this application for a declaration. The more appropriate course is for us to consider what, if any, reporting restrictions should be imposed on these proceedings. In that regard, s.39 of the Children and Young Persons Act 1933 has no application. But this court retains an inherent jurisdiction to secure the interests of the child. That must be exercised by striking the balance between the rights of the child under Article 8 of the European Convention on Human Rights, and the rights of Dr Pelling and others who may wish to publish material from these proceedings under Article 10 in the light of the legislative steer from s.97. In my view, the right order is merely to anonymise the interested party who is identified merely as NT.

Mr Justice Bennett

38. I agree.