England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
NEWCASTLE UPON TYNE DISTRICT REGISTRY

		The Combined Court Quayside Newcastle Upon Tyne
		6th July 2005

MR. JUSTICE MUNBY:

1. It is now ten-past-six. I have been hearing an application which began at about ten-past-two, when I was invited to watch a film proposed to be broadcast by Channel 4 tomorrow evening. Submissions started at approximately twenty-past-three.
2. The case is urgent, and in the circumstances I have neither had the time for reflection nor the time to put my thoughts into the kind of order which would generally be desirable. A decision has to be made tonight, not merely because the film in question is due to be broadcast tomorrow evening but also, and this is no criticism of him, because Mr. Hudson, who appears on behalf of the claimants, is unable to be here tomorrow. In any event everybody needs a decision tonight. Accordingly, I shall be comparatively brief, both in setting out the facts and setting out my reasoning.
3. Channel 4 has for some months, as I understand it, been engaged in the preparation of a documentary film involving surreptitious filming in four state schools, two in Leeds and two in the London Borough of Islington. The filming was undertaken by a young woman who is, in fact, a qualified teacher and who was able to obtain supply teaching jobs in those schools.
4. The film which, without opposition from the claimants, I was invited by Mr. Nicklin on behalf of Channel 4 to watch is on any view disturbing. I do not give an exhaustive account of what it portrays. Anybody who may hereafter have to consider this case will, I respectfully suggest, have to watch the film for him or herself.
5. In three of the four schools, the fourth school being shown as a contrasting example of a school where such problems have in significant measure been eradicated, the film shows a situation, seemingly on an almost endemic basis, of children approximately 13 to 16 years old out of control; schools where discipline appears to an almost astonishing extent to have broken down, not merely in the school corridors but in the classrooms, and where teaching of individual classes in individual periods is on numerous occasions rendered almost impossible because of disruption by pupils. Some are shown defiantly using their mobile telephones either to talk or to send text messages while the teacher is trying to teach, others are shown fighting each other, others are shown running around the classroom jumping from desk to desk, and some are shown adopting not merely an utterly defiant but also a grossly insubordinate and offensive attitude towards their teacher. One scene shows a boy who would appear to be something of the age of 14 or 15 telling the teacher who is trying to control the class to "Fuck off." Other scenes show pupils simply leaving the classroom when they choose or arriving late for classes.
6. That is one of the major themes which runs throughout the film. A second significant theme which applies to the first of the four schools which is featured, one of the schools in Leeds, shows what on the face of it appears to be the deliberate misrepresentation of the school, with the complicity of the senior staff, on the occasion of an OFSTED inspection; the picture of the school deliberately being presented on that occasion by the staff intentionally creating, so it is said, an entirely false impression of the reality of life in the school. For example, it is said that the kind of teaching materials which ought to be available and otherwise never were, had been made available for the teachers on the occasion of the inspection. For example, it is said that the worst offenders in the school were deliberately removed from the school and sent on extracurricular activities while the inspection was going forward, again so as to create a reassuring but, so the thesis of the film would have it, utterly misleading picture of the school.
7. Another theme which emerges in relation to three of the four schools is what on one view can only be characterized as the utter demoralization of much of the teaching staff, who appear to have lost the will either to maintain discipline or to teach, and who in some cases seem to be doing little more than going through the motions of teaching.
8. A rather different theme that emerges in relation to the fourth school, which in many ways is held up as an example of a good school by reference to which conditions in the other three schools are very unfavourably compared, is the point that government policy, so it is said, drives schools, to the detriment of their pupils' education, to adopt those curricular examinations which put the school in the best possible position in the league tables.
9. Some may say this is merely the naivety of a cloistered judiciary out of touch with the real world, though I have to say that I am not, I believe, in saying this merely looking back, either at my own school days or those of my children, through rose-tinted spectacles; I come to this view having, as a result of my work both in the Family Division and the Administrative Court, considerable experience of dealing with the educational problems of the young. Nonetheless, I have to say that I was surprised when I viewed the film, having, albeit fairly briefly, previously been told what the film was about and what it showed. I have to say that nothing prepared me for what I actually saw on the screen. Using the word in its proper sense, there are many things which appeared that were, on the face of it, shocking. The overall impression I had was that in the three schools which were particularly the focus of critical filming a very significant proportion of the pupils, through their own misbehaviour, are not being properly educated, with the consequence, and this was another of the themes which emerged from the film, that those pupils who want to learn and want to be educated are being denied a proper education because of the uncontrolled misbehaviour of those who do not want to learn.
10. No doubt, as Mr. Hudson would have it, Channel 4 is in part motivated by commercial considerations, and no doubt in part the film is presented in a way which will attract not merely the attention, but it may be the shocked or appalled reaction of the viewer. That said, I can only express the view, having watched the film, and at the same time read the script setting out the commentary which has not yet been attached as a soundtrack to the film, that it seemed to me to be a serious piece of documentary film-making, intending to serve, and as it seemed to me in fact serving, important public interests. If conditions in those schools, never mind other schools, really are as bad as they seem to be, then it might be thought that the picture displayed is one which should be of the very greatest concern, not merely to the local education authorities who are responsible for the schools, not merely to the Secretary of State for Education and Skills, not merely to OFSTED, who it appears are being bamboozled by at least some schools, but also to parents. Not just the parents of those children who, by reason of their disruptive behaviour, are not being educated, but also those parents whose children because of the disruptive behaviour of other children are not receiving the education they want and which they are entitled to.
11. The fact that this filming had been taking place was disclosed to each of the two local authorities by Channel 4 - and when I refer to Channel 4 I use that as a convenient shorthand expression to include not merely Channel 4 but also the film-maker and everybody involved in the project - by letters which although dated 16th June 2005 were in the event, as I understand it, not in fact received until 20th June 2005.
12. Leeds City Council raised the matter with the Court in Leeds on Monday morning of this week, because of its concern that at least some of the children who it believed had been filmed were children in its care and for whom, therefore, it had a direct statutory responsibility. In the event Leeds City Council has not pursued any application before me for relief, being content to accept and to rely upon certain undertakings given by Channel 4 (given, I emphasise, in correspondence, not formally given to the Court) which means that its concerns are, in significant part, allayed. In particular, all the children shown in the film, not just those for whom Leeds has responsibility but also those for whom Islington has responsibility, are shown with their faces obscured. As I understand it, the proposal is that the degree of obscuration should be somewhat extended from what appeared on the version of the film I saw, so that not only the face but also the hair and the neck of each of the children are obscured. The purpose of that, obviously, is to reduce the risk that children shown in the film may be identified.
13. A separate application has been made to me today by Mr. Hudson representing two children who, appearing by their parents as litigation friends, are at the second of the two schools in Leeds shown in the film. When the matter was first put before me this morning two different classes of children were identified as possibly requiring protection. The first were children in relation to whom there were particular concerns as to the risk they might be exposed to if their identities were to be disclosed, even to those 'in the know'. For example, there was concern that some children whose present whereabouts are not known by disaffected members of their families might be identified and might, therefore, be exposed to risk of attack or other harm in a direct and worrying fashion. The second group of children were those in respect of whom there were no specific identified concerns of that sort, but who took their stance essentially on the proposition that they had been filmed surreptitiously, in breach of obligations of confidence enforceable at common-law or in equity, in breach of rights of privacy protected by Article 8 of the Convention, and moreover in circumstances where it was said that, notwithstanding the recent decision of the House of Lords in In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, there was a cause of action under the inherent jurisdiction of the Family Division.
14. Mr. Hudson represents two children, as I have said. They are A and B. They are both boys, they are both in the same year at the school and they were born within days of each other in September 1989. They are therefore between 15 and 16 years old. Mr. Hudson expressly disavowed any claim on behalf of either A or B which might bring them into the first of the two classes of children I have mentioned. The claim, therefore, has proceeded on the basis of the more general complaint, based upon breach of confidence, breach of privacy and, if need be, the inherent jurisdiction.
15. Mr. Nicklin, on behalf of Channel 4, developed the argument that the claim failed in limine. Founding himself on the decision of the House of Lords in Wainwright v Home Office [2003] UKHL 53, [2004] 2 AC 406, he asserted that breach of Article 8 without more ado does not of itself give rise to any cause of action. He further asserted that on the facts of the present case there was no cause of action either in breach of confidence or under the inherent jurisdiction of the Family Division.
16. I am very far indeed from being persuaded of the correctness of either submission. It seems to me, notwithstanding the recent decision in In re S, that the inherent jurisdiction survives as a means of founding jurisdiction in those cases in which the jurisdiction would have existed before the decision in In re S, albeit that the exercise of the jurisdiction once it is founded is now to be undertaken in accordance with the speeches of their Lordships in In re S.
17. There was some debate before me as to whether the inherent jurisdiction is limited to cases in which the Court is, as in the case of A and B it is not, already concerned in some protective or caring role. Mr. Nicklin, founding himself in particular on the judgments of Lord Justice Hoffmann in R v Central Independent Television PLC [1994] Fam 192 and of Lord Justice Ward in In re Z (A Minor) (Identification: Restrictions on Publication) [1997] Fam 1, submitted that the court has jurisdiction to grant an injunction only if it is already exercising a care or other protective jurisdiction. Whatever Lord Justice Hoffmann may have said in Central Television, the leading authority on the jurisdiction prior to the implementation of the Human Rights Act 1998 is the decision of the Court of Appeal in In re Z and I am far from persuaded that Mr. Nicklin's analysis of that authority is correct.
18. I am also very far indeed from persuaded that the law of confidence does not extend to the kind of situation with which I am here concerned. No doubt in its more recent extension into what for shorthand I will call the commercial context, the law of confidence focuses upon the confidential nature of the particular information in question, but there are many relationships or settings which have traditionally been accepted as giving rise to a duty of confidence irrespective of the particular nature of the information in issue; such obvious examples as the doctor/patient, the lawyer/client and the banker/customer relationship come readily to mind. The class of cases in which a claim in confidence can arise on that jurisprudential basis is not, I believe, closed. It seems to me highly arguable that the relationship of parent or pupil and school is such as in principle not merely engages Article 8 (as it undoubtedly does), but also in principle gives rise to enforceable duties of confidentiality. Of course, if a schoolchild goes to a school sports day or takes part in the Christmas nativity play or some other similar production it is probably the anticipation of both the pupil and the parent that the event may be filmed. It is not, however, I should have thought the normal expectation or assumption of either a pupil or a parent that the ordinary school day will be surreptitiously filmed by an organ of the media. If, in the final analysis, the most convenient form of words to identify the touchstone of an enforceable duty of confidence is Lord Nicholls of Birkenhead's formulation in Campbell v MGN Ltd. [2004] UKHL 22, [2004] 2 AC 457, at paragraph [21], Was there a "reasonable expectation of privacy"? then I am inclined to think that the answer to that question in a case such as this is, in principle, yes.
19. Accordingly, I am very far from persuaded that Mr. Hudson is unable to demonstrate a cause of action.
20. The real issue in this case, as it seems to me, is the familiar but nonetheless difficult exercise of balancing the various rights under the Convention which are engaged. There are, of course, in the present case a number of rights which are engaged. Mr. Hudson, understandably, focus upon the Article 8 rights of his two client children, Mr. Nicklin, understandably, focuses primarily upon the Article 10 rights of Channel 4, both its right to receive information and its right to impart information to others. But equally, as Mr. Nicklin correctly points out, there have to be taken into account the Article 8 rights of the other children, for example those who wish to be educated but whose education is being frustrated. And one also has to have regard to the Article 10 rights, in particular the Article 10 right to receive information, not merely of the public generally but also of parents of children in these schools who, as Mr. Nicklin says, have a right to know what is going on in the schools, and no doubt also, by parity of reasoning, the right of rightly concerned citizens, council tax payers and members of local authorities, councils and committees, to be informed of what is going on in the schools for which, in one sense, they have responsibility.
21. Mr. Hudson, correctly in my judgment, identified the Article 8 rights of the children as having considerable weight and as justifying a considerable degree of protection. Understandably, and in my judgment appropriately, he attached more weight to the Article 8 rights of his client children than did Mr. Nicklin. It seems to me, as I have said, that children when they go to school have a reasonable expectation that they will not be filmed surreptitiously. And if they are shown in an embarrassing, humiliating way, or in a way which will call down opprobrium on their heads if they are shown misbehaving themselves, then those are important rights and interests protected by Article 8. And this is so, I emphasise, even if, because of the obscuring of their identities, the children in question are going to be identified only by those who are close to them, either within their families or amongst their immediate friends and neighbours, and therefore will not be exposed to public opprobrium or humiliation.
22. There are on the other side, as will be apparent from my opening remarks, what I am satisfied are not merely put forward as being genuinely held views about the impact of Article 10, coupled with the Article 8 rights of the other children, but which I am satisfied, having regard to the facts, are indeed important and weighty factors which have to be taken account of under the various branches of Article 10. When I say "the facts" I am referring in particular to the very clear impression I was left with having watched the film, that in relation to a number of matters (the most important but not all of which I identified at the beginning of this judgment) the film raises issues not merely of very considerable public interest but which ought to be of great concern to the public, represented for this purpose by the Secretary of State for Education and Skills and OFSTED, great concern to that more narrow section of the public being the public authorities who are responsible for the particular schools, and legitimate, and it might be thought considerable, concern to that section of the public represented by parents of children in what are often referred to as sink comprehensives and in particular, of course, the parents of the children in these particular schools. The fact is that the film throws an almost lurid and deeply worrying light on the current condition of at least part of the state school system.
23. At the end of the day I have in the conventional way, applying the principles laid down in particular in In re S, to balance all the various, in this as in so many other cases starkly conflicting, rights and interests which arise under the Convention.
24. This being an interim hearing I have of course ultimately to direct myself by reference to section 12(3) of the Human Rights Act 1998. In other words, Mr. Hudson does not have to demonstrate, as he would at trial, that he does have a cause of action. He does not have to demonstrate, as he would at trial, that the balance will come down in favour of his clients. It suffices if he can demonstrate that it is "likely" that it will; likely for this purpose having the meaning given to it by the House of Lords in Cream Holdings Ltd v Banerjee [2004] UKHL 44, [2005] 1 AC 253.
25. The other matter which I have to take into account, again by reason of section 12 of the 1998 Act, is the OFCOM Broadcasting Code, that being the relevant code which governs Channel 4. My attention has been directed in particular to rules 8.1, 8.13, 8.20 and 8.21 of the Code. Summarising the matter shortly, these indicate that surreptitious filming is acceptable only where it is "warranted", and moreover that it will only be "warranted" in that sense if a number of conditions set out in rule 8.13 are met, including a requirement that there are reasonable grounds to suspect further material can be obtained by surreptitious filming, and most important of all that "It is necessary to the credibility and authenticity of the program" that there be surreptitious filming. In other words, surreptitious filming is permissible in principle if, but only if, a legitimate story which is in the public interest – a requirement also spelled out in rule 8.13 – can be achieved only by means of surreptitious rather than open filming. Rule 8.20 directs broadcasters "To pay particular attention to the privacy of people under 16." Rule 8.2 specifically directs that where a program features an individual under the age of 16 in a way that infringes privacy, consent "must" be obtained from a parent, guardian or other person in loco parentis, and if possible the individual concerned, and this is the important qualification, "Unless the subject matter... is warranted to proceed without consent."
26. There was dispute between Mr. Nicklin and Mr. Hudson as to whether in the particular circumstances of this case the test of likelihood bore its general meaning of more likely than not, or whether in the particular circumstances of this case the bar was set somewhat lower, in the way contemplated by Lord Nicholls of Birkenhead in Cream Holdings, in particular at paragraphs [19] and [23]. Mr. Nicklin submitted that the test is more likely than not. Mr. Hudson submitted the circumstances were such as to justify a lower bar.
27. That particular controversy, which as will be appreciated goes to the heart of the test I have to apply, was helpfully, if partially, resolved by Mr. Hudson accepting that there would be no justification for a short interim restraint for the purpose, to paraphrase Lord Nicholls' words at paragraph [22], of enabling the court to hear and give proper consideration to the application for interim relief, if I was satisfied that a short adjournment for the purpose of enabling him to obtain further evidence and further instructions was not in truth going to affect the outcome. Mr. Nicklin asked rhetorically what additional evidence which is not available today is going to be available in a few days time, or a week's time, or a fortnight's time if I grant a short-lived injunction for that purpose.
28. The reality seems to me to be this. This is a case in which due to the shortness of time there is, in fact, no written evidence of any sort at all before me. I have been content, without opposition from either Mr. Hudson or Mr. Nicklin, to proceed at all stages on the basis of what they have told me based on their instructions. I am entirely content and propose to proceed on the basis that if an opportunity were given for Mr. Hudson and those instructing him to gather further evidence, the evidence would be to the effect that his clients vigorously oppose the broadcasting of their images as part of the film, that they are distressed at the thought of the broadcast and, particularly if they are shown in an unfavourable light, that they will be exposed to ridicule, humiliation and it may be from some quarters even contempt at the hands of those close to them, who will be able to identify them notwithstanding that their faces are obscured. In short I am prepared to make every assumption to that effect in favour of the two claimants. In these circumstances I have difficulty in seeing that the case is going to be in any significantly different evidential shape were I to grant a short-lived injunction for the purpose of enabling further evidence to be gathered.
29. The other kinds of circumstances in which Lord Nicholls contemplated that the bar may appropriately be set lower simply do not seem to me to apply in the present case. The case is not on any basis, for example so far as concerns Mr. Hudson's clients, one in which there is risk of personal injury, let alone grave risk of personal injury to any children. Accordingly I am satisfied that I should approach the present case on the basis that it is for Mr. Hudson to establish that it is likely, in the sense of more likely than not, that he will succeed at trial.
30. I come back, therefore, to the balancing exercise.
31. As I hope I have made clear, I attach considerable weight to the Article 8 interests of Mr. Hudson's clients. I do not criticise him for this, but it seems to me that Mr. Nicklin in many of his submissions unduly minimised the weight to be attached to the claimants' Article 8 rights. The fact is that these children were surreptitiously filmed in a setting which, to repeat, they had every reasonable expectation would be a private setting where they would not be spied upon and filmed, let alone faced with the prospect of the film being broadcast on national television.
32. I also accept that although the consequence of obscuring their faces is that the children will not be identifiable to the world at large, in the nature of things, since the schools are identified in the film, and since the relevant classes are in some cases identified, e.g. Year 10, the overwhelming probability is that many of the children who are shown on the film will be more or less readily identifiable and in fact identified by their school friends, their relations and people in their immediate locality. This is an important factor which has to be fed into the Article 8 scale, because in so far as Article 8 protects privacy, the privacy is not merely privacy as against the world at large it is also privacy as against particular sections of the world.
33. As against all that there are, as I have indicated, very powerful public interests which are here engaged and which are protected by Article 10. This is not in my assessment, having seen it, a trivialising film whose purpose is merely prurient entertainment; it is a serious documentary film seeking in a serious, if nonetheless in many ways shocking, fashion to bring to public attention matters which ought to be of concern to many people.
34. In my judgment, doing the best I can to evaluate and weigh in the balance all the various rights under the Convention which are here in play, the case comes down fairly heavily in favour of Channel 4.
35. The fact is that the particular problem which Channel 4, as it seems to me in the public interest, wishes to bring to the attention of the public is capable of being brought to public attention only if surreptitious methods are used. A school which is prepared, so it would seem, to deceive OFSTED is hardly going to allow itself to be filmed, warts and all, by a commercial broadcaster. One does not, I think, have to be unduly cynical to believe that a request for permission to film, even if that request had been granted, would have led to a presentation very different from that which in the event Channel 4 was able to obtain by surreptitious means.
36. Mr. Hudson suggests that this, as I would see it pressing and important, public interest is not such as to justify, let alone require, the public broadcasting of the film. He says that if the objective of Channel 4 is to expose matters of concern then that can equally effectively be done by taking matters up with the appropriate authorities and without a public broadcast. That, as it seems to me, is to adopt an unduly optimistic view of the consequences which would be achieved if, without general publicity, there is a merely private disclosure to those directly concerned with what the film shows. Also, and perhaps more fundamentally, it seems to me to attach wholly insignificant weight to the importance in a democracy, as has been repeatedly pointed out both by the European Court of Human Rights in Strasbourg and by the highest tribunal in our Country, of an investigative press which in the public interest exposes wrongdoing or incompetence by those public agencies who serve the citizen.
37. Rule 8.1 of the OFCOM Broadcasting Code contains an extended definition of the word "warranted." I need not read that definition in full, but amongst the list of what it describes as "examples of public interest" is a category which it describes as "incompetence that affects the public." That seems to me to be the label which appropriately describes what is sought to be achieved in the present case by Channel 4. To repeat, the film is about what are alleged to be very serious shortcomings in the state school sector. Whether those failings are properly to be attributed to central government, to OFSTED, to the local authorities or to the teachers is a matter no doubt of debate, and it may be controversy, but it does not particularly matter for present purposes. What is the dismal comfort to a parent of knowing that the responsibility for the fact that her child has not been properly taught lies with inadequate teachers, rather than inadequate councillors, or perhaps lies with an inadequate inspectorate, rather than any failings on the part of the local authority? The fact is that this is a film about the public sector, about the state school system. Incompetence is a word which can only be said to be inapt insofar as it might be thought to be a word which is hardly adequate to describe what is actually shown in the film.
38. In my judgment this was a case where, so far as I can see, Channel 4 was justified and operating fully within the four corners of the OFCOM Broadcasting Code in embarking upon and carrying through the surreptitious filming of these schools. Likewise, it seems to me to be a case where Channel 4 was, within the meaning of rule 8.2, warranted in proceeding without the consent of the children and their parents. The reality, I suspect, is that if the consent of either the children or their parents or the local authority had been sought consent would have been refused and the project would have been strangled at birth. Be that as it may, it seems to me that what has been done in the present case by Channel 4 falls within what is legitimate and permitted by the OFCOM Broadcasting Code. More precisely and more relevantly, insofar as this is part of his case, Mr. Hudson has wholly failed to persuade me that anything which has been done by Channel 4 falls foul of the Code. And he has certainly not demonstrated, using the word in either of the meanings attached to it by Lord Nicholls, that it is "likely" he will demonstrate at trial that there has been any breach by Channel 4 of the Code.
39. At the end of the day, in my judgment, the balance comes down fairly heavily against granting the injunction. I attach considerable weight, as I have said, to the circumstances in which the filming took place, to the fact that there is on the face of it a compelling case to be made that there was here, absent lawful justification, a breach of privacy and a breach of the duty of confidentiality. I attach more weight than Mr. Nicklin would have me attach to the fact that the children, although obscured, are nonetheless highly likely to be identified by those who know them. I also, as I have made clear, proceed on the assumption that each of the children would vigorously resist the broadcasting of the film and will, as I have already said, feel embarrassment, humiliation and it may well be worse, if the film is broadcast.
40. Those factors, together with all the factors prayed in aid by Mr. Nicklin, are in the round very powerful and carry very considerable weight. On the other hand, this is a case in which, as I have indicated, it seems to me that in truth if this film was to be prepared and broadcast at all, surreptitious filming was inevitable. This is a case in which, as I have indicated, the fact that the filming was surreptitious and without the consent of either the children or their parents does not involve any breach of the OFCOM Broadcasting Code. And this is moreover, and importantly, a film which, for the reasons I have already indicated, raises matters which if they are not ought to be of very great public concern.
41. In my judgment, the various arguments in the public interest and the various arguments, whether in the public interest or otherwise which arise under Article 10, outweigh fairly heavily the arguments, powerful though they may be, presented by Mr. Hudson on behalf of his client children. In my judgment, Mr. Hudson has failed to demonstrate that it is likely that he will succeed at trial in obtaining injunctive relief of the kind he seeks.
42. I do not take up time rehearsing the authorities, but I should record that in the course of submissions I was referred not merely to the authorities I have already mentioned but also to the decision of the European Court of Human Rights in Von Hannover v Germany, the Princess Caroline case, as also to the decision in the Court of Appeal in R v Broadcasting Standards Commission ex p British Broadcasting Corporation [2001] QB 885. I have, of course, had regard to and sought faithfully to apply the principles which are laid down in those cases, as also in the other cases to which I have already referred.
43. There is one more matter I should mention. Mr. Hudson submitted as an important factor in the application of the balancing exercise that I should have regard to what as he would have it would be the minimal impact on the film if all that I did was to injunct the showing of images of his two clients. His primary submission was that for all the reasons he gave and which I have tried to deal with the film should be injuncted in so far as it shows any children, whether his clients or other children. He submitted that a film which involved, as it were, an interview with the undercover reporter describing what she had witnessed, and including, as the film I have seen does include, interviews with other people, would meet the public interest and that for the film to go beyond that and to show the children was disproportionate, and therefore unwarranted.
44. The narrower submission was that at the very least I should injunct the film in so far as it contains images of his two clients. That, of course, as will be appreciated, would probably affect only one part of the film, since both his clients are at one of the schools and the film, as I have said, deals extensively with a total of four schools.
45. It seems to me that there are various reasons why that submission should not be accepted. Mr. Hudson says of course that he is concerned only with his two children, that there is no application on behalf of any other child, and that it would therefore be perfectly appropriate for me to limit the injunction in that way, and in circumstances where, so he says, that would not significantly, if at all, affect the overall integrity of the film.
46. Amongst the difficulties with that submission is this: in truth, since Mr. Hudson explicitly disavowed any claim based upon particular damage to a child because of that child's particular circumstances, his arguments if good in relation to A and B must equally be good in relation to all the children who are the subject of the film. His case was not based upon specific problems in relation to either A or B. It was based upon the Convention rights of all the children, of whom A and B are merely examples. It seems to me wrong in principle, if that is the reality, to restrain the broadcasting of a film showing A and B but not the others, not X, Y and Z as it were, merely because A and B have commenced proceedings and X, Y and Z have not, in circumstances where had X, Y and Z also commenced proceedings they would, on Mr. Hudson's argument, have been entitled to the same relief. Moreover, there is a further practical point. If the principle once be established, as Mr. Hudson would have me accept, that any child can obtain an injunction preventing the broadcasting of that child, what will there be to prevent X, Y, Z, D, E, F and G from making application tomorrow morning saying, in effect, well if the court has accepted that A and B are entitled to prevent their images being broadcast, then the same must go for any other claimant who - I do not put this pejoratively – seeks to climb on the bandwagon.
47. Quite apart from the more general point which Mr. Nicklin understandably makes – that to remove even one or two of the children is actually destructive of the integrity of a film the thrust and the message of which is very much based upon seeing the children collectively in the classroom – a process by which the grant of injunctions at the suit of A and B would, as it seems to me, logically and almost inevitably lead to the granting of further injunctions, would in principle, and it might well be in reality, lead to a situation where more and more children had to be excluded from the film, thereby emasculating the film altogether.
48. With all respect to Mr. Hudson it seems to me that his narrow submission, although seemingly attractive and seemingly innocuous at first blush, is unjustified in principle and potentially entirely destructive of the integrity of the film.
49. In those circumstances (and in circumstances where it now being 7.15, I repeat that I would have wished to have more opportunity both to reflect upon this matter and to put my thoughts in somewhat better shape than I fear they have been expressed) I have come at the end of the day to the clear conclusion that I should refuse this application. I, accordingly, refuse to grant injunctive relief in any of the forms sought by Mr. Hudson.
50. There is one final matter I should mention. As I have already said I was invited by Mr. Nicklin, without objection from Mr. Hudson, to view the film myself. Mr. Hudson has not, in fact, seen the film, partly because until the film was brought to court today Channel 4 was not willing for him or his clients to see the film, and partly because once it had been accepted that I should myself see the film (in circumstances where normally that very fact would entitle Mr. Hudson as of right to see the film) the limited time available was such as to make it difficult to accommodate any wish Mr. Hudson might have had to view a film which in all lasts about 50 minutes. Had Mr. Hudson wished to see the film then I would unhesitatingly have either refused to watch the film myself without him having an opportunity of doing so, or if he had wished to do so I would of course have allowed him and his solicitor time to view the film. I only place these events on record, as also the fact that Mr. Hudson was content to proceed without himself watching the film notwithstanding that in the course of his submissions I described to him some of what I had seen on the film and gave a fairly clear indication of the impact the film had had upon me, in particular an indication of the provisional view I had formed about its potential public interest.
51. For all these reasons, I decline to grant injunctive relief.