England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/03/2013

Mr Justice Kenneth Parker :

Introduction

1. On 1 May 2012 in the Lowestoft Magistrates' Court the Claimant (to whom I shall refer as A) pleaded guilty to a charge of being drunk in a public place, while having the charge of a child under the age of 7 years, contrary to section 2(1) of the Licensing Act 1902. The child in question was A's daughter, to whom I shall refer as B. B was 2½ years old. A is an elected councillor and is likely to be well known in the local community.
2. The facts giving rise to the charge were that at about 2.45pm on 10 April 2012 the manager of an ASDA store was concerned about the condition of A within the store and called the police. A police officer arrived and believed that A was drunk. He gave her a screening breath test which registered 142µg alcohol/100 ml breath, more than four times the legal limit for driving a motor vehicle. A was arrested and B was transferred to the temporary care of family members. On 20 August 2011 A had previously received a caution for a similar offence. At the hearing on 1 May 2012 for the present offence the Magistrates imposed a fine of £100 and ordered a victim surcharge of £15.
3. What happened immediately after A had been sentenced on 1 May 2012 is set out in the summary grounds of defence of the Magistrates' Court (the First Defendant in this claim), which were prepared on its behalf by the legal adviser who had been present in court during the proceedings against A. Miss Mir, the advocate then appearing on behalf of A, applied for an order under section 39 of the Children and Young Persons Act 1933 ("the CYP Act"). Miss Mir submitted that A should not be identified because of her health. The legal adviser continues in the summary grounds as follows:

"No evidence was provided by [A] relating to how her daughter would be affected by [A's] name being released to the press other than the fact that the daughter ought to be protected from the serious press release on this matter. No case law was presented before the court in support of [A's] application and no reference was made to any breach of [A's] Human Rights."

4. The legal adviser continues by stating that he advised the magistrates that –

"You do not need to consider the impact on the defendant for a section 39 order. You only need to consider the impact on the child, and she is only 2½ years of age."

Miss Mir did not challenge the advice or seek to be heard further. The prosecutor made no representations and no member of the press was present. No explicit reference was made to the Judicial Studies Board Guide "Reporting Restrictions in the Criminal Courts" (October 2009), which, at section 4.2, sets out a valuable summary of the principles governing the exercise of discretion under Section 39. The magistrates retired to consider their decision. They returned a few minutes later, stating that, having considered the advice of the legal adviser, they refused the application for reporting conditions. According to an attendance note prepared by Miss Mir and put in evidence in this claim, she indicated to the magistrates that A would appeal the decision to refuse an order under section 39. Miss Mir also says in her note that sometime after the court had risen she sought to have the court reconvene in order that she might seek to ascertain further reasons for the decision. However, the court had by then concluded business for the day and the magistrates had left the court building.

The Claim

5. The thrust of this claim is that the magistrates erred in law in refusing to make an order under section 39 of the CYP Act. They had no reasonable basis, it is contended, for refusing the order; and their reasons for refusal were in any event inadequate. The relief sought in the claim form is a permanent injunction from this Court, the effect of which would be to prohibit the publication of the name of A in any report of the criminal proceedings which I have just described. I shall leave the question of relief until I have dealt with the substantive issues raised by the claim.
6. It is convenient at this point to set out section 39 of the CYP Act 1933:

"39 Power to prohibit publication of certain matter in newspapers.

(1) 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:

(b) no picture shall be published in any newspaper as being or including a picture of any child or young person so concerned in the proceedings as aforesaid;

except in so far (if at all) as may be permitted by the direction of the court.

(2) Any person who publishes any matter in contravention of any such direction shall on summary conviction be liable in respect of each offence to a fine not exceeding level 5 on the standard scale. "

The Issues

7. The claim raises the following issues:

i) For the purposes of section 39 of the CYP Act, was B a child "concerned" in the relevant criminal proceedings against A, on the footing that she was a child "in respect of whom" the relevant proceedings were taken?

ii) If B was a child "concerned" in the proceedings, what were the relevant considerations that the magistrates had to take into account in deciding whether to make an order under section 39, and in deciding what precise restrictions, if any, should be imposed?

iii) On the material before them and in the light of relevant considerations, did the magistrates in this case reach a decision which was reasonably open to them and/or did the magistrates in any event reach the correct decision?

The First Issue: Did the proceedings "concern" B?

8. Section 39 is of course a general provision. It applies to any proceedings in any court. It is not limited to criminal proceedings. It must, therefore, be correspondingly broad in scope to cover all contingencies. In the context of civil proceedings it will ordinarily be straightforward to determine whether a child or young person is bringing the proceedings, or has the proceedings brought "against" him or her, or whether the child or young person is in substance the subject of civil proceedings brought by others. In a strictly formal sense, it might be argued that the only two parties to criminal proceedings are the prosecution and the defendant, and that criminal proceedings are not taken "in respect of" any other person. However, it is plain that the legislature in enacting section 39 sought to capture, in wide language, at least the central participants in proceedings, whether civil or criminal, who would for that very reason be likely to be the focus of any report of the proceedings; and a narrow interpretation of section 39 would tend to defeat the main objective of protecting, where appropriate, the identity of a child or young person in that position. It is notable that section 39 extends in terms to a child or young person as a witness in proceedings, even if in a particular case the child or young person may have a relatively insignificant part in the proceedings. A broad interpretation of section 39 would now also be supported by article 8 of the European Convention of Human Rights ("ECHR") and the jurisprudence emphasising the best interests of children as a primary consideration, to which I shall turn later. Where in any event someone is prosecuted on a charge of violently or sexually assaulting a child or young person, or of inflicting cruelty on a child, it has never been seriously doubted that the putative victim of such conduct is a person "in respect of whom" the criminal proceedings are brought.
9. A here stood charged with "being drunk in a public place while having the charge of a child under the age of 7 years", contrary to section 2(1) of the Licensing Act 1902. Under section 2(1) it is unnecessary to show that the defendant positively inflicted physical or psychological harm on the young child, or even that the defendant in the particular circumstances was likely to do so. In that strict sense the child might not be considered a victim as in the case of a violent or sexual assault, or of child cruelty. However, whatever the original intent of section 2(1), I am prepared to give it an interpretation that would best promote public policy in modern conditions, namely, that it is intended, among other things, to promote the welfare of small children who could be at risk of physical or psychological harm, because the person responsible for that welfare is intoxicated. Accordingly, the child that is specifically referred to in any charge under section 2(1) is in a real sense a subject of the criminal proceedings, and these proceedings on any sensible construction of section 39 of the CYP Act 1933 are taken "in respect of", and thus "concern", that child.

The Second Issue: what are the relevant considerations?

10. It is clear that the application of section 39 of the CYP Act engages important, and competing, principles, namely, on the one hand, the private and family life of a child, and the best interests of that child, and, on the other hand, the freedom of the media to publish, and of the public to receive, information or comment, and the requirements of open justice. These principles are enshrined on one side in Article 8 of the ECHR, and in the jurisprudence recognising the best interests of the child as a primary consideration, and on the other in Articles 6 and 10 of the ECHR. As recognised by Tugendhat J in A(A Child) v Cambridge University Hospital NHS Foundation Trust [2011] EWHC 454 (QB) at paragraph 11, by virtue of the Human Rights Act 1998, the court, as a public authority, must take account of these competing principles where they become engaged, as in the case of the application of section 39. The rights under Articles 8 and 10 are qualified, and neither the best interests of the child nor the principle of open justice necessarily dictate the conclusion in any particular case, so that in many, if not most, instances a balance has to be struck between a number of weighty claims.
11. The importance of the principles here in issue have now been stated in a number of leading authorities. In K v News Group Newspapers Ltd [2011] 1WLR 1827, Ward LJ (with whom Laws LJ and Moore-Bick LJ agreed) emphasised that the rights of children are not confined to their Article 8 rights (to private and family life which are general rights shared by everyone). The importance of promoting the best interests of children:

"…can be gathered from several international human rights instruments, not least from the second principle of the United Nations Declarations on the Rights of the Child 1959, from Article 3.1 of the Convention on the Rights of the Child 1989 ("the UNCRC") and from Article 24 of the European Union's Charter of Fundamental Rights (OJ 2007 C303, p1). For example, Article 3.1 of the UNCRC provides: In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration." (paragraph 18)

12. At paragraph 19 of his judgment Ward LJ referred to the important case of ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 WLR 148, and to the observations of Baroness Hale of Richmond JSC at paragraph 20. Ward LJ said that, although the context was very different, the universal principles could not be ignored in the case before the court, and that the proper approach had been neatly summarised by Lord Kerr of Tonaghmore JSC, at paragraph 46 of the decision in ZH, namely:

"It is a universal theme of the various international and domestic instruments to which Lady Hale has referred that, in reaching decisions that will affect a child, a primacy of importance must be accorded to his or her best interests. This is not, it is agreed, a factor of limitless importance in the sense that it will prevail over all other considerations. It is a factor, however, that must rank higher than any other. It is not merely one consideration that weighs in the balance alongside other competing factors. Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them. It is not necessary to express this in terms of a presumption but the primacy of this consideration needs to be made clear in emphatic terms. What is determined to be in a child's best interests should customarily dictate the outcome of cases such as the present, therefore, and it will require considerations of substantial moment to permit a different result."

13. Ward LJ went on in paragraph 19 to make a further observation which, in my view, has great relevance in the present context:

"However this learning must, with respect, be read and understood in the context in which it is sought to be applied. It is clear that the interests of children do not automatically take precedence over the Convention rights of others. It is clear also that, when in a case such as this the court is deciding where the balance lies between the article 10 rights of the media and the Article 8 rights of those whose privacy would be invaded by publication, it should accord particular weight to the Article 8 rights of any children likely to be affected by the publication, if that would be likely to harm their interests. Where a tangible and objective public interest tends to favour publication, the balance may be difficult to strike. The force of the public interest will be highly material, and the interests of affected children cannot be treated as a trump card."

14. Of course, the application of section 39 does not simply engage the general right of the media and of the public under Article 10 ECHR. The principle of open justice is also closely engaged. The importance of that principle has also been recognised in many leading authorities. In ex parte Godwin [1992] 1 QB 190, the issue was whether a criminal court had power under section 39 of the CYP Act to prohibit in terms the publication of the name of the adult defendant. The Court of Appeal held that a criminal court had no such power. Glidewell LJ, giving the judgment of the court, approved the submissions of the media appellants which relied not only on the structure of section 39 as a whole and on a comparison with other related statutory provisions, but also on the principle of open justice:

"… it is a normal principle of law that defendants in criminal proceedings should be named. Statute has on occasion given the courts power to make an order to the contrary, but only in most exceptional circumstances. Indeed … it is obvious that a major reason for the principle is that the very fact of being named is itself a powerful part of the deterrent effect of a prosecution. The prospect of being named, in other words, is a deterrent to other people who may be tempted to commit any sort of offence." (page 195 D-E)

15. The Court of Appeal in Godwin recognised that an order appropriately made under section 39, following the terms of the section or adopting language closely analogous thereto, might have the practical effect in a particular case of preventing the media from publishing the name of the defendant. However, that was a matter for the media to decide, with the assistance, if deemed appropriate, of non-binding guidance from the court, and subject to penalties for breaching the order if the media culpably misjudged the practical reach of the prohibition in the specific case. Godwin was applied by the Court of Appeal (Criminal Division) in R v The Central Criminal Court, ex parte Crook and Godwin (unreported, 29 July 1994).
16. More recently, in re Trinity Mirror Plc and others [2008] EWCA Crim 50, the Crown Court, following the defendant's guilty plea to child pornography offences, made an order restraining the media from identifying the defendant. The order had been made to protect the rights and interests of the defendant's children, although they had been neither witnesses in the proceedings against the defendant nor victims of his offence. The Court of Appeal held that the Crown Court had no jurisdiction to make the order but went on to make strong general observations about the importance of open justice. Sir Igor Judge P (as he then was), giving the judgment of the Court, said:

"32. This appeal succeeds on the jurisdiction argument. 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 offices 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."

17. In an earlier case, re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593, there was a challenge to the refusal of a judge in the Family Division of the High Court, in the exercise of the court's inherent jurisdiction, to prohibit, in the interests of the child, the publication of the name of the mother of a child in respect of criminal proceedings against the mother. Lord Steyn (with whom Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hoffmann and Lord Carswell agreed) stated at paragraph 18 the ordinary rule 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."

18. As to the application of Article 10 in that case Lord Steyn referred to the importance of the freedom of the press to report criminal trials in progress and after verdict, as recognised in, for example, R v Legal Aid Board, ex p Kaim Todner [1999] QB 966 by Lord Woolf MR at 977, and at paragraph 30 Lord Steyn himself stated:

"…A criminal trial is a public event. The principle of open justice puts, as has often been said, the judge and all who participate in the trial under intense scrutiny. The glare of contemporaneous publicity ensures that trials are properly conducted. It is a valuable check on the criminal process. Moreover, the public interest may be as much involved in the circumstances of a remarkable acquittal as in a surprising conviction. Informed public debate is necessary about all such matters. Full contemporaneous reporting of criminal trials in progress promotes public confidence in the administration of justice. It promotes the values of the rule of law."

19. Lord Steyn also made the following observation:

"34. Thirdly, it is important to bear in mind that from a newspaper's point of view a report of a sensational trial without revealing the identity of the defendant would be a very much disembodied trial. If the newspapers choose not to contest such an injunction, they are less likely to give prominence to reports of the trial. Certainly, readers will be less interested and editors will act accordingly. Informed debate about criminal justice will suffer."

20. Most recently in JIH v News Group Newspapers Ltd [2011] EWCA Civ 42, the Court of Appeal has again emphasised that:

"Any order for anonymity or any other order restraining the publication of the normally reportable details of a case is a derogation from the principle of open justice and an interference with the Article 10 rights of the public at large." (by Lord Neuberger MR at [21])

The Third Issue: was the balance struck in this case reasonable and/or correct?

21. In re S Lord Steyn said the following regarding the balancing of the relevant competing principles:

"The interplay between articles 8 and 10 has been illuminated by the opinions in the House of Lords in Campbell v MGN Ltd http://www.bailii.org/uk/cases/UKHL/2004/22.html[2004] 2 WLR 1232. For present purposes the decision of the House on the facts of Campbell and the differences between the majority and the minority are not material. What does, however, emerge clearly from the opinions are four propositions. First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test. This is how I will approach the present case."

22. The Crown Prosecution Service (the First Interested Party), for whom Mr Douglas-Jones appeared, and Archant Community Media Limited (the Second Interested Party), which publishes the Eastern Daily Press and the Lowestoft Journal, and for whom Ms Kate Wilson appeared, seem to me to have a powerful case indeed under Article 10 and the principle of open justice. The criminal conviction itself, although it attracted a relatively low penalty, was far from trivial. To be drunk in public in charge of a small child of 2½ years of age raises very considerable concerns regarding the general welfare of the child, especially when a caution had been administered not long before for the same offence. The caution administered in private, and the real risk of public exposure on re-offending, had plainly failed to deter A, and this strongly suggested that there might be more serious underlying problems that needed to be addressed in the interests of B. Moreover, A was an elected councillor, and her conduct in public had twice fallen well below the standard that could reasonably be expected of an elected official by her constituents and by the public generally, who had an undeniable legitimate interest in learning, through media publication, of how A had behaved. In mitigation before the magistrates Miss Mir had stressed A's mental health problems and alcohol dependence, and that also was information about a serving councillor which arguably the public were entitled to learn through a press report of proceedings.
23. It is also difficult to overlook what A has presented as the practical effect in this case of any order under section 39. Before the magistrates and throughout the present proceedings, A has forcefully emphasised that Lowestoft is a small community. If, it is strongly urged, any report of the criminal proceedings published A's name, or the fact that (a putatively unnamed) convicted person was a councillor (A being the only local councillor having the care of a child under 7 years of age), or that A, even if named, had pleaded guilty to this particular offence (it being well known that A had the care of one child under 7 years of age), the identity of B would inevitably emerge. Therefore, on the case strongly urged by A (a case that appears far from implausible in the circumstances), the practical effect of any order under section 39 would be to prohibit the media from naming A as the defendant, or identifying the defendant as a councillor, or, if it did name A, from stating the specific charge to which she pleaded guilty. On this scenario the public would simply not know what A, an elected official, had done. It was precisely on the preceding scenario that A obtained an interim order in the present claim prohibiting the naming of A, and that A has sought permanent relief along the lines of the interim injunction, or, alternatively, some direction from this court that would have the same effect.
24. As to the interests of B, and her rights under Article 8, the Court pressed Miss Ahluwalia as to how precisely these would be promoted by an order under section 39. I understood Miss Ahluwalia to accept that B, being now just 3 years of age, would have little or no present understanding of what had occurred, and any press report of the criminal proceedings could have no direct impact on her. However, she suggested that if others in what she described as a tight knit community learnt of what had happened they would behave differently towards B, and possibly in a way that was harmful to her. It could be observed that if the community is as close as Miss Ahluwalia put forward, it is quite likely that it would learn about A's conviction, whether reporting restrictions were imposed. But the notion in any event that responsible adults would behave in a manner adverse to B's welfare, in the light of learning about A's offending, seems to me to be far fetched and not based upon any solid empirical foundation. B is too young to be exposed to, or affected by, the kind of behaviour of other children that concerned the court in K. Even if moreover there were some risk of such a reaction, B's best interests here do not lie unambiguously in the concealment from the local community of A's offending in respect of her. It may be that if such matters are brought to light, further information from the public concerning B's welfare could surface, and members of the community would in any event be aware of the fact that B was, at least potentially, a young child at risk.
25. Ms Ahluwalia also submitted that at some time in the future, admittedly many years from now, B could learn, say through the internet, that her mother had pleaded guilty to this offence, and that she was the child who, aged 2½ years, had been the subject of the charge. She might at that point suffer distress on learning that she had been identified many years before in press reports of the criminal proceedings and that members of the community had discovered through such reports that she had been the subject of the charge. It might also be that other children, learning in a similar way what had happened, might seek to tease or bully B.
26. I must say that I find such scenarios highly speculative. It must be doubtful, to say the least, that any report of the present proceedings, not involving the most serious kind of criminal offence, would be readily accessible many years in the future, and the impact on B would also be difficult to predict. Miss Wilson told us that those that she represented followed a policy of removing content from their website concerning convictions that were spent, when requested, and in this case the conviction would become spent after a few years. The family, if so minded, would have had a considerable time in any event to prepare B for any such future contingency with a view to mitigating its effect. Whether others would search for such material, would find it and seek to exploit it in ways adverse to B's best interests, also appears very uncertain.
27. Having, therefore, set out in general the relevant considerations and how they are likely to apply in the particulars of this case, I have come to the conclusion that the magistrates had a reasonable basis for concluding that no order under section 39 was justified in this case. In my view, the balance of the relevant competing principles came down firmly in favour of Article 10 and open justice, given the immediate, direct and considerable extent of the interference with those rights in the case as explained earlier, and taking due account of the much weaker, remote and uncertain impact on B's rights under Article 8 and on her best interests. In a judicial review of the legality of the magistrates' decision, I believe that that conclusion is sufficient for dismissing the claim. However, for the avoidance of doubt, if it were necessary, I would also hold, for the same reasons, that the decision that the magistrates reached was correct.
28. For completeness, I should also mention that, as a subsidiary ground, Miss Ahluwalia submitted that the decision of the magistrates was flawed because their reasons were inadequate. That ground, in my view, has become academic. In this claim all relevant considerations have been argued and weighed, and A has now the benefit of a fully reasoned judgment. No useful purpose could be served by granting any relief in respect of inadequacy of reasons by the magistrates. In any event I was not impressed by this ground. As explained earlier, little, in the form of authority, argument or evidence, was advanced to support the application before the magistrates. The magistrates correctly stated that the interests of A, as such, were not relevant under section 39, and they made clear, by reference to the advice given by the legal advisor, that they had had regard to the interests of B, a child of only 2½ years of age. A knew why the application had been rejected and was in a position to challenge the decision, as she has done by this claim.
29. For these reasons, I dismiss this application for judicial review.

Lord Justice Pitchford:

30. I agree.