England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		1st September 2011

THE PRESIDENT:

1. This is an application by Elizabeth Watson to purge the contempt in which I found her on 15 August 2011. On 22 August 2011 I committed her to prison for a period of nine months.
2. Before I deal with her application I would like to take a few moments to dispel a number of myths. The first myth I wish to explode is that a person can be sent to prison "in secret". Nobody in this country is sent to prison for contempt of court "in secret". I propose to read the rule which deals with these matters: it is taken from the Rules of the Supreme Court Order 52, rule 6. which now appears in Schedule 1 to the Civil Procedure Rules (CPR)

"(1) Subject to paragraph (2) the court hearing an application for an order of committal may sit in private in the following cases, that is to say –

(a) where the application arises out of proceedings relating to the wardship or adoption of an infant or wholly or mainly to the guardianship, custody, maintenance or upbringing of an infant, or rights of access to an infant;

…

(2) If the court hearing an application in private by virtue of paragraph (1) decides to make an order of committal against the person sought to be committed, it shall in public state –

(a) the name of that person;

(b) in general terms the nature of the contempt of court in respect of which the order of committal is being made; and

(c) the length of the period for which [she] is being committed."

3. As it happens, I sat in open court to hear Ms. Watson's case and I gave judgment in open court. Had I sent her to prison in private my decision would have been unlawful and the Court of Appeal would have had the power to set it aside. I, myself, have been very critical of a judge who sentenced a contemnor without hearing mitigation and without going into open court to do so; see the case of Hammerton v Hammerton [2007] EWCA Civ 248, [2007] 2 FLR 133, in which the order of the judge was set aside.
4. There is, of course, an automatic right of appeal against a committal order. Permission to appeal is not required - see CPR rule 52.3(1)(a)(i). Added to which, of course, the Court of Appeal sits in public.
5. My second point is, I appreciate, repetitious. The Family court are frequently accused of acting "in secret". It needs to be emphasised that courts hearing cases involving children under the Children Act 1989 sit in private to hear evidence because they are democratically authorised to do so by Parliament. They do so to protect the interests and confidentiality of children. The courts thus regard - and I certainly regard - with particular seriousness any breach of a court order designed to protect the identify and confidentiality of a child.
6. Thirdly, judges believe in the rule of law and in free speech. Every child case involves a balance between the rights enjoyed by everybody to respect for their private and family lives: see Article 8 of the European Convention on Human Rights (ECHR). In each case section 1 of the Children Act 1989, enacted by Parliament, requires the welfare of the child to be paramount; that is more important than anything else.
7. Fourthly, where a judge makes an order restricting publicity and forbidding the identification of a child, he or she is duty bound to carry out what has been described by the House of Lords as "an intense focus" on the rights of a child and the rights of everybody else to free speech. It will no do harm in this judgment to read in Article 10 of ECHR which, of course, is now part of the English law as enacted by the Human Rights Act 1998:

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

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society … for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

8. In the case of Re S [2004] UKHL 47 Lord Steyn said:

The interplay between articles 8 and 10 has been illuminated by the opinions in the House of Lords in Campbell v MGN Ltd [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.

I am entirely satisfied this is how Baker J approached the present case and helps to explain why I take Ms. Watson's contempt so seriously.

9. Another aspect which makes Ms. Watson's contempt particularly grave is that she breached the order not only by communicating through e-mails with a large number of third parties, but also gave material to an internet provider, one Sabine McNeill who runs a website called Inquiring Minds. Ms. McNeill (who at one point acted as Ms. Watson's McKenzie Friend in these proceedings) lives, I am told, in Germany although she has a flat in London. The mischief of the publication, as Ms. Watson now appreciates, is that the publication of allegations which I and two other judges held to be without foundation not only puts the identity of the child into the public domain and renders it accessible to anybody who cares to look for it or to read it; but equally, Ms Watson has put herself in the hands and the power of the internet provider. The omens do not altogether look good.
10. Yesterday Ms. McNeill wrote to Ms. Watson's solicitors in these terms:

Why on earth does the Guardian who has NOT acted in the child's interest request me to remove the page about [the earlier fraud?]

Re Inquiring Minds I wrote to Malcolm & Co. and cc him for your convenience." – [That is another matter on the website] – I am happy to cooperate but I am not happy destroying all the evidence that Liz [Ms Watson] has found and was just not sufficiently able to present effectively. The same evidence will help to get Vicky [that is the mother] her daughter back after all and the Guardian CERTAINLY has no right/authority/jurisdiction to tell me anything.

Sorry, but you will have to fight for the fact that Liz has undug more than 'they' would have liked her to.

With best wishes, Sabine."

11. I forbear to comment; the e-mail speaks for itself.
12. Ms. Watson, fortunately, however, has had the good sense, at long last, to take legal advice and has been ably represented before me by counsel, Mr. Littlewood. She should be extremely grateful to her counsel and to the solicitors whom she has chosen.
13. However, the factors I have outlined and the contents of my previous judgment explain why a prison sentence for Ms. Watson was inevitable. She has today, herself, expressed (both through counsel and personally) contrition. In plain language she has told me she is very sorry for what she has done. I have thought about this very carefully and I am satisfied that she has done what she can to remove from the internet the offending material which she caused to be placed there.
14. What I propose to do in these circumstances is to suspend Ms. Watson's sentence. I would be entitled, if I wished, to keep her in prison until such time as the blog to which I have been referred and which is the one outstanding matter has been investigated and those responsible for it have been given the opportunity to remove the e-mail. I have considered that option very carefully. I have decided, however, in the end not to do it. I am satisfied that Ms. Watson has had a very unpleasant experience in prison. I am willing to accept her undertaking – which has the force of a court order – to use her best endeavours to remove the offending e-mail from the blog and I am satisfied that to keep her imprisoned would serve no real purpose as far as she is concerned.
15. I therefore propose to direct that the sentence which I passed of nine months is suspended for a period of two years. This will enable Ms. Watson to be released immediately and I so direct.
16. However, the sentence remains. Provided there is no repetition and provided Ms. Watson complies with her undertaking and provided she is not in breach of the order within the next two years, that will be the end of the matter. If she is in breach or if there is any repetition for which she is responsible or partly responsible, she will go back to prison and serve the remainder of her term.
17. I also hope that the sentence will be a lesson not just to Ms. Watson but for anyone else who may be tempted to breach an order of the High Court.
18. To the operator of the blog which continues to print the offending e-mail – which I will not read out – I say very simply that it would be in the interests of the child with whom I am concerned for it to be removed. Its presence does not and will not advance mother's cause one iota. Of course, there can be criticism of the family justice system, but the criticism must be rational, balanced and fair. The e-mail in question is none of these things and the sooner it is removed the better.
19. However, for the reasons I have given and as an act of some considerable mercy, I propose to release Ms. Watson immediately although the sentence will remain in suspended form.

Postscript

20. Since giving the judgment set out above, I have received a letter from Ms Watson's solicitors, copied to the other parties, inviting me to accept that Ms Watson has complied with her undertaking to use her best endeavours to ensure that any further remaining offending material be removed from publication on the internet. I have read the Emails written by Ms Watson to Sabine McNeill. I have not heard from the local authority.
21. Ms Watson's solicitors report the deletion of offending files and I accept their conclusion that Ms Watson had addressed each and every concern raised by the local authority. I also accept their assurance that they have been instructed by Ms Watson to carry our their own checks, and that these have revealed one further potentially offending article which has been removed. Subject to the emergence of material about which I am currently ignorant, I am content to accept that Ms Watson has complied with her undertaking.
22. I conclude by making two points: the first is to note that the independent Family Justice Review, whilst making a number of criticisms of the Family Justice System, went out of its way in paragraph 7 of its Interim Report to say: "We have been impressed by the dedication and capability of those who work in the Family Justice System. Their work is hugely demanding and often highly stressful". Those who criticise the System and the integrity of those who work within it would do well to bear these findings in mind.
23. Secondly, I wish to re-emphasise that committal proceedings are not issued in order to stifle free speech, but to ensure obedience to orders of the court. Everybody is entitled to free speech; but equally nobody is entitled to breach an order of the court.
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