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 WC2A 2LL
		8 February 2008

1. LORD JUSTICE THOMAS:

The order made in the Magistrates' and Crown Court

2. The Magistrates' Court and the Inner London Crown Court imposed, in the proceedings brought by the Crown Prosecution Service (CPS) against the appellant, orders under Section 39 (5) of the Children and Young Persons Act 1933 prohibiting any publication of matters in proceedings that might lead to the identification of the children. It appears beyond doubt that as a result of those orders there has been no publication whatsoever of any matter relating to the proceedings either in the Crown Court or in the Magistrates' Court or relating to the appellant's conviction. This is not a case merely of the identity of the appellant being kept out of the public domain, but the effect of the order was that the whole of the proceedings were kept out of the public domain, including his conviction.

The practice as to making orders under s.39(5)

3. The case underlies the importance of the need for great care in the Magistrates' Courts when making orders under Section 39 (5).
4. It was the practice laid down by Lord Bingham of Cornhill (when he was the Chief Justice) that before making such an order the court should generally ask members of the press whether they had any submissions so the court understood fully the issues, given the great importance of making these orders.
5. Orders are not to be made as a matter of routine, and require a careful balance of matters relating to the public interest, after submissions made in accordance with the practice to which I have referred.

The interim order made in this Court

6. At the outset of the hearing of the appeal in this matter we heard a short argument on continuation of the order. It was known to the court that the Court of Appeal (Criminal Division) was to hear argument in R v Croydon Crown Court ex p Trinity Mirror and Others [2008] EWCA Crim 50 on a similar issue within a matter of days. We therefore agreed to continue the order pending the decision of the Court of Appeal, doing so under the court's inherent jurisdiction as set out in Re S (a child) [2004] UKHL 47, [2005] AC 593, and also under Section 39, and then to hear argument in the light of that decision.
7. We saw no point in hearing argument pending the decision of the Court of Appeal (Criminal Division). A five-judge court had been assembled to hear the important issues stated in that case. That decision would be binding on us. It would have been quite unfair to alter the status quo as regards the appellant in this case pending that decision. We explained that to everyone present in the court. That was the sole reason we made the order on that occasion, exercising the court's inherent powers, as it seemed to us there might be some doubt as to whether there had been power under Section 39 (5).
8. The decision in R v Croydon Crown Court was handed down on Friday 1 February.

The nature of the present hearing

9. When we handed down judgment in this matter on Monday 4 February (see [2008] EWHC 148 (Admin)) we decided that the only fair course was to continue the prohibition for a few days to enable everyone concerned, and in particular the appellant, to put forward arguments as to why we should continue restrictions. We wanted, in particular, to give the CPS the opportunity to inform Miss Jenkins and also to allow the media to make any submissions to us. We explained fully our reasons for doing so.
10. This hearing therefore has been concerned not with the continuation of the holding order which we had made but the decision to be made in the light of the authorities, including R v Croydon Crown Court, as to whether we should make an order prohibiting the reporting of these proceedings either in whole or in part.

The argument on scope of s.39(5)

11. The decision in R v Croydon Crown Court made it clear that in the light of the decision in Re S (a child) the Crown Court and the Magistrates' Court had no power to make the orders they did under Section 39 (5).
12. Argument has been addressed to us today eloquently by Mr Speaight QC, on behalf of the appellant, that the Crown Court and the Magistrates' Court might have had power under Section 39 (5) to make an order in this case. It would follow that if they had power we would also have power. It was accepted by him however that if we had power that power was to be exercised on exactly the same principles as the power this court has in any event. It is therefore not necessary for me to address the argument, but it should be briefly recorded.
13. The argument on behalf of the appellant concentrated on the words of Section 39 (1) (a):

"No newspaper report of 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 proceedings were taken or as being a witness therein."

14. In reliance on a short passage in the judgment in R v Croydon Crown Court, it was contended that the words of the section could be read so that they were applicable to persons who, in a sense, were the victims in the proceedings, taking the word "victim" in its widest sense. I would merely observe that it is difficult at first sight to see how such an argument could be advanced on the ordinary reading of those words, but it is not necessary for me to say anymore and to leave that point open for argument should anyone wish to pursue it on a future occasion.

The scope of the powers of the Court under its inherent jurisdiction

15. I turn to consider the matter under what is sometimes referred to as our inherent jurisdiction or powers, balancing the Convention rights under Articles 8 and 10, to decide whether this court should make an order.
16. The general circumstances in which a court should make an order are addressed in a number of cases. I think it is only necessary to refer to a short passage in the judgment of Lord Steyn in Re S (a child) [2004] UKHL 47, a passage in the judgment of Sir Igor Judge in R v Croydon Crown Court and also a short passage in the judgment of Sir Mark Potter in A Local Authority v PD [2005] EWHC 1832 (Fam). The passage in the judgment of Lord Steyn is at paragraph 18 where he said:

"18 In oral argument it was accepted by both sides that the ordinary rule is that the press, as the watchdog of the public, may report everything that takes place in a criminal court. I would add that in European jurisprudence and in domestic practice this is a strong rule. It can only be displaced by unusual or exceptional circumstances. It is, however, not a mechanical rule. The duty of the court is to examine with care each application for a departure from the rule by reason of rights under Article 8."

17. In the decision in R v Croydon Crown Court, Sir Igor Judge, giving the judgment of the five-judge court, dealt with the position at paragraphs 32, 33 and 34:

"32 ..... We must however add that we respectfully disagree with the judge's further conclusion that the proper balance between the rights of these children under Article 8 and the freedom of the media and public under Article 10 should be resolved in favour of the interests of the children. In our judgment it is impossible to over-emphasise the importance to be attached to the ability of the media to report criminal trials. In simple terms this represents the embodiment of the principle of open justice in a free country. An important aspect of the public interest in the administration of criminal justice is that the identity of those convicted and sentenced for criminal offences should not be concealed. Uncomfortable though it may frequently be for the defendant that is a normal consequence of his crime. Moreover the principle protects his interests too, by helping to secure the fair trial which, in Lord Bingham of Cornhill's memorable epithet, is the defendant's 'birthright'. From time to time occasions will arise where restrictions on this principle are considered appropriate, but they depend on express legislation, and, where the Court is vested with a discretion to exercise such powers, on the absolute necessity for doing so in the individual case.

33 It is sad, but true, that the criminal activities of a parent can bring misery, shame and disadvantage to their innocent children. Innocent parents suffer from the criminal activities of their sons and daughters. Husbands and wives and partners all suffer in the same way. All this represents the further consequences of crime, adding to the list of its victims. Everyone appreciates the risk that innocent children may suffer prejudice and damage when a parent is convicted of a serious offence. Among the consequences, the parent will disappear from home when he or she is sentenced to imprisonment, and indeed, depending on the crime but as happened in this case, there is always a possibility of the breakdown of the relationship between their parents. However we accept the validity of the simple but telling proposition put by the court reporter to Judge McKinnon on 2 April 2007, that there is nothing in this case to distinguish the plight of the defendant's children from that of a massive group of children of persons convicted of offences relating to child pornography. If the court were to uphold this ruling so as to protect the rights of the defendant's children under Article 8, it would be countenancing a substantial erosion of the principle of open justice, to the overwhelming disadvantage of public confidence in the criminal justice system, the free reporting of criminal trials and the proper identification of those convicted and sentenced in them. Such an order cannot begin to be contemplated unless the circumstances are indeed properly to be described as exceptional.

34 This court is naturally concerned for the welfare of the defendant's children. We accept the assessments of their mother, their headteacher, their social worker and the consultant child psychiatrist. Nevertheless we must adopt a much wider perspective. For the reasons set out above, we concluded at the end of the hearing that all we could properly do in the interests of the children was - exceptionally - to announce our decision in advance both of the delivery of our judgment and of our setting aside of the judge's order. Our intention was to create a period in which work might be done with the children, with a view to enable them better to cope with the public identification of their father following its earlier postponement."

18. The third passage to which we were referred was a short passage in the judgment of Sir Mark Potter at [2005] EWHC 1832 (Fam), where he said:

"30 ..... The burden of proving the case for grant of an injunction always lies upon the applicant. In the special case of an injunction contra mundum, and in particular one which restrains the press from exercising its right unrestrainedly to report criminal proceedings, the burden is a heavy one. The necessity is to show unusual and exceptional circumstances. The entire tenor of the judgment in S, Re demonstrates the difficulties facing the applicant in a case of this kind."

Mr Speaight QC referred to another case which showed how the judgment had been exercised in that particular case. I do not need to refer to the facts of S or the case to which he referred - W - because each case must, as Lord Steyn said, be examined on its particular circumstances.

The relevance of the decisions in relation to family proceedings

19. It has been very eloquently submitted on behalf of the appellant that it is important for us to take into account the statutory provisions in relation to publicity in respect of family proceedings; if Miss Jenkins and Mr Buttimore had chosen to take the issue to the Family Court, then the matters would not have been reported.
20. If I may address that argument first, it seems to me that it is not necessary to consider what the position would have been if the application had been made to the Family Court, instead of Miss Jenkins and Mr Buttimore resorting to the police and a prosecution being commenced by the CPS.
21. The statutory provisions and rules for the Family Courts are statutory provisions and rules relating to those courts. It seems to me that the right approach is to assume in favour of the appellant, without deciding the question, that, if Miss Jenkins had obtained a non-molestation order in the Family Courts, that would have been subject to reporting restrictions.
22. On that assumption, it is not necessary to determine the very important questions that might have been raised in relation to reporting of similar proceedings in the Family Courts. As has become clear in the course of argument, the position now is that a challenge may be made to the practices of Family Courts, particularly in the light of R v Croydon Crown Court. Such an argument is not necessary in this case and plainly ought to be decided only when it is necessary.

The considerations relating to the balancing exercise: the children's rights under Article 8 and the criminal conviction of a parent

23. Proceeding on the assumption that reporting restrictions would have been imposed by the family courts, the important point, it seems to me, is that these are criminal proceedings and not family proceedings. With respect to that, it was submitted on behalf of the appellant that, as is obviously the case, there is a huge range of criminal offences. One of the factors to be taken into account in this case is that the criminality was at the lower end of the scale. This was - both by reason of its facts and the penalty imposed - criminality of a very modest kind.
24. Secondly, it was submitted that the facts that gave rise to the criminal liability were intimately bound up with the young children in this case. The origin of the dispute, it is said (and we were taken to passages in my judgment which set out the facts) showed that matters in relation to the children lay at the heart of the case against the appellant. It was said that the real concern of the appellant had been, when seeking to restrain any publicity in this case, to protect them from any adverse effects of the reporting of these proceedings and to protect their right to family life and privacy under Article 8.
25. In addressing those submissions, it seems to me important to point out again that these are criminal proceedings. It is obvious that the dispute had its origins in what can only be described as an unfortunately bitter and acrimonious family dispute. At paragraph 75 of my judgment I said:

" ..... It is clear that conduct within a dispute relating to children can be of such a degree that the proper forum for determining issues in relation to that conduct is the criminal courts. Of course it may be argued with considerable force, that it would have been far better for all concerned if Miss Jenkins and Mr Buttimore had resorted to their civil remedies and not to the police. However Miss Jenkins referred the appellant's conduct to the police beginning in January 2005 ..... ; it is quite clear that she and Mr Buttimore referred the appellant to the police on numerous occasions from the outset of their relationship. Once the issues were referred to the police and the CPS decided to prosecute, it was for the criminal courts to determine in a public forum whether the appellant's conduct amounted to an offence under Section 2."

It was that decision of the CPS to prosecute which brought the matter into the public domain and before the criminal courts.

26. There is a further important factor. As again I endeavoured to make clear in the judgment at paragraph 55 ii), the court has to find, before criminal liability is established, that the conduct has passed from what might sustain civil liability to criminal liability. I stress that point because it seems to me that a very important factor to be taken into account is that this is a criminal case where the conduct concerned was not merely that which might give rise to a civil injunction but that all the courts which have decided this matter have decided that the conduct concerned gave rise to and sustained criminal and not merely civil liability.
27. I accept, and I think it is very important to stress as regards the appellant in the light of some submissions that have been made, that the appellant is a man of very impressive character and quite impeccable background. It is also clear from the findings made by the courts which investigated the facts in detail that he had the deepest interest in the well-being of his children and was devoted to them. It is also clear from the facts found by the courts that the relationship between Miss Jenkins and Mr Buttimore became a matter of obsession for him together with the fact that the children were seeing a great deal more of Mr Buttimore than him. In consequence, the finding of the lower court was that he behaved in a way that was totally and absolutely out of character with his normally responsible and careful excellent behaviour and judgment.
28. It has been suggested in argument to us that in seeking to continue today the order restraining reporting that this has been done by the appellant as a step to protect himself and not to protect the children. For reasons that I will endeavour to make clear it is unnecessary for us to consider that allegation. I think that it is important to bear in mind the findings that the appellant was, as I have set out, a person who had the deepest interest in the well-being of his children and was devoted to them.
29. Having said that, it seems to me that, as this is a case where the appellant has been convicted of two criminal offences, it is self-evident that he should be treated no differently from others convicted of a criminal offence.
30. What then is the evidence of harm to the children? What is it in their family life that should be brought into the balance under Article 8 in considering the exercise of the power under the inherent jurisdiction of the court?
31. It is a matter of great importance in this case that there is no evidence whatsoever of any particular harm to these children other than the considerable embarrassment that may be felt in the playground or elsewhere that their father has been convicted of a criminal offence. This is not the kind of case where the crime is of a level in any sense whatsoever of those considered in the other cases where arguments have been advanced of particular harm to the children in question. There is no evidence of that at all in this case. The embarrassment that may well flow to the children is, I regret to say, in my view an unfortunate consequence of being convicted of a crime.
32. In my view there is nothing to distinguish the facts of this case, as was said in R v Croydon Crown Court, from the plight of children where parents are convicted. There are many cases where unfortunately allegations and convictions for harassment are made arising out of family disputes. There is nothing in this case that distinguishes it from all such cases or even more serious cases where, for example, assaults are made on children or the like. It seems to me therefore that there is nothing of any weight at all to be brought into account when looking at the rights under Article 8 other than the normal consequences that flow from conviction for such a criminal offence as this. This is in no sense anywhere near the kind of exceptional case that the courts have mentioned in the authorities to which I have referred.

The high public profile of the appellant : equality before the law

33. It was stressed by counsel who appeared on behalf of the various media represented in this case that this court should have regard to the appellant's high public profile. It seems to me however that the public profile of a person is not a material consideration.
34. That is because it is fundamental that all persons are equal before the law of England and Wales, as embodied in our common law, our legislation and the Conventions to which this country has subscribed.
35. No person in this country can enjoy a different status because he holds a public position. It is important to stress that.
36. Even if there was a perception that this might be so, particularly in the case of a person who holds any form of judicial office, it would inevitably undermine confidence in the open and public administration of justice and the fundamental principle of equality before the law. That is why I have tried to stress that the public position of the appellant can make no difference. Each person must be treated equally. The public position comes into the account neither on one side or the other. All are equal before the law and must be treated so.

Conclusion

37. It is therefore, in my view, very clear that when one looks at striking the balance between the rights under Article 8 and the rights under Article 10, it must be firmly answered in removing any prohibition on the publication of the proceedings in this matter.
38. I should add that no application has been made on behalf of Miss Jenkins as the mother in this case. We have been informed that the police and the CPS were taking steps to inform her of this hearing, but nothing has been put before the court on her behalf.
39. I would therefore rule that the decisions of the Magistrates' Court and the Crown Courts to make the order in these proceedings were made without jurisdiction. I would lift the interim order we made at the outset of the proceedings for the reasons I have already given. I would decline, looking at the matter substantively, to make an order restricting in any way the publication of proceedings.
40. There are two further matters that I should mention. There are further proceedings at Blackfriars Crown Court and an order has been made under the Contempt of Court Act (Section 4 (2)) in respect of them. It is not necessary for me to refer any further to that save to say that it is accepted on behalf of the prosecution that such an order in no way prevents the publication of anything in the judgment of this court or in the proceedings before this court or in the proceedings before the Crown Courts and the Magistrates' Courts.
41. For those reasons which I have endeavoured to state as succinctly as I can, despite the arguments advanced by Mr Speaight QC so attractively before us this morning, I would rule that the current order is to be lifted and no further order should be made.
42. MRS JUSTICE DOBBS: It was also argued by Mr Speaight that apart from the embarrassment of the criminal conviction of the father under Article 8 the children had a right to privacy with regard to details of their family life. As for the prejudice regarding the criminal offence, it is to be noted that the offences involved were committed, it has been accepted, out of love and concern for the children and thus not having to cause a high degree of embarrassment. As for the parental dispute, it is not so exceptional. Such disputes often happen. None of this, in my view, has the stigma attached that it might do for offences of much greater seriousness, and cumulatively are not such as to take the factors into the category of "unusual and exceptional circumstances".
43. I agree with my Lord.

(An application for permission to appeal was made by Mr Speaight QC which was withdrawn)

(An application for costs was made by Mr Hudson)

44. LORD JUSTICE THOMAS: There is before us an application for costs on behalf of the media. Accepting that we have jurisdiction under the Civil Procedure Rules to make such an order, the question is should we make one?
45. The circumstances of this case are that the orders were made in the Magistrates' Court and in the Crown Court (as is often the case) by an application being made by one of the parties, short consideration being given to it and the order being made. We hope that such a practice will cease, and such orders only made very carefully with due consideration, as I tried to emphasise this morning. At the time these orders were made it was thought that the court had jurisdiction to make them.
46. When the matter came before us it was clear that there was a serious issue. As I explained in the judgment this morning, we adjourned the matter for consideration until after the decision had been made in R v Croydon Crown Court and after we had handed down judgment. Until the decision in R v Croydon Crown Court there was no clarity. In giving the time we did on Monday for all the parties to consider it and for us to hear further argument, we had well in mind that it was important to sort these matters out for the future.
47. It seems to us in the exceptional position of this case, where the law was not as clear as it should have been and these orders were made when they should not have been made, we have been greatly assisted by the submissions made both by Mr Speaight QC and in particular by Mr Hudson. This is a case where it can be said that the just order is to leave costs lie where they fall. In saying that, we wish to make it abundantly clear that in future cases orders restricting publicity should only be made after due consideration. The defendant should very very carefully consider the very high hurdles that are set. For the future, now that the law is clear beyond doubt, if a defendant seeks to invoke such an order wrongly and costs are incurred, there is no reason why he should not pay them. That is for the future. But today we say it is an exceptional position.
48. MRS JUSTICE DOBBS: I agree.

(Mr Hudson left the court)

(An application as to costs was made by Mr Bennett on behalf of Crown)

(An application was made by Mr Speaight QC to certify a point of general public importance)

49. LORD JUSTICE THOMAS: There are two applications. The first is to certify a point of law of general public importance arising out of our judgment handed down on 4 February 2008. We refuse to certify. There is no point of law of any general public importance involved in that decision. On the facts as found by the court below and on the application of the law there was no other possible conclusion than the appellant was guilty of the matters with which he was charged and any conclusion to the contrary would have been perverse action by the courts below.
50. Secondly, as to the application for costs, it seems to us that for reasons that we endeavoured to explain during the course of argument a lot of the costs were incurred in this case by reason of the way in which the case came before this court. Furthermore we take into account that the appellant succeeded in relation to one part of the course of conduct alleged. In those circumstances we think that the offer made to pay half the costs is a fair and proper one, and we so order. We leave the mathematics for insertion into the order to be worked out by counsel.
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