England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
Case No. U013C00129
FAMILY DIVISION
Neutral Citation Number: [2014] EWHC 1985 (Fam)

		Royal Courts of Justice
		9th May 2014

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MR. JUSTICE KEEHAN:

1. In this matter the London Borough of Waltham Forest makes an application for a reporting restriction order concerning a little girl, EI, who is three years of age.
2. The basis of the application is that in the summer of last year EI's mother died from multiple stab wounds. It is said that the mother was murdered by the child's father, AD. If that were not tragic enough, the tragedy is compounded by the fact that EI was present when her mother was murdered. She was taken into police protection and thereafter was placed in foster care where she remains.
3. The father is currently standing trial for murder at the Central Criminal Court.
4. In May the local authority made an application to the trial judge, pursuant to s.39 of the Children & Young Persons Act 1933. That application failed because EI did not come within the remit of s.39 of the 1933 Act. Accordingly, the local authority made an application to me on Tuesday, 6 May for a reporting restrictions order. Unfortunately - and highly regrettably - the notice of the application was only served on the press and broadcast media via the Copy Direct Service a few hours before the matter came before me. Accordingly, I adjourned the application to today to enable the press and broadcast media to be represented and/or to make submissions. I am extremely grateful to Mr. Dodd of the Press Association for attending today and for his full and helpful written submissions.
5. An application for a reporting restriction order is an extremely unusual application which should only be granted in the most compelling of circumstances. On the facts of this case, Articles 8 and 10 of the European Convention on Human Rights & Fundamental Freedoms 1950 are engaged. Article 8 - the right to respect for private and family life - reads,

"Everyone has the right to respect for his private and family

life, his home and his correspondence.

There shall be no interference by a public authority with the

exercise of this right except such as is in accordance with the

law and is necessary in a democratic society in the interests of

national security, public safety or the economic wellbeing of the

country, for the prevention of disorder or crime, for the protection

of health or morals, or for the protection of the rights and freedoms

of others".

Article 10 - freedom of expression - reads,

"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. This Article shall not prevent States

from requiring the licensing of broadcasting, television or cinema

enterprises.

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, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary".

6. Section 12(4) of the Human Rights Act 1998 provides that,

"The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to—

(a) the extent to which—

(i) the material has, or is about to, become available to the public; or

(ii) it is, or would be, in the public interest for the material to be published;

(b)any relevant privacy code".

7. The seminal case on the approach to be adopted when the court is invited to make the reporting restriction order is the decision of the House of Lords in Re S (A Child)(Identification: Restriction on Publication) [2005] 1AC 593. It was held that an intense focus on the comparative importance of competing rights under Articles 10 and 8 was required; that neither Article has presumptive weight over the other and the proportionality test must be applied to each.
8. As Mr. Justice Peter Jackson observed in A Local Authority v. M & Ors. [2012] EWHC 2038 (Fam) at para. 27,

"-- a conclusion that the Art. 8 rights of individuals should prevail over the Art. 10 rights of the public so as to restrict the reporting of criminal proceedings will be highly exceptional, though not beyond contemplation".

9. The issue of identifying individuals involved in court proceedings and the importance of the use of a name was addressed by Lord Roger of Earlsferry in the Supreme Court case of Re Guardian News & Media Ltd. & Ors [2010] 2AC 6897:

63. What's in a name? "A lot", the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature. And this is why, of course, even when reporting major disasters, journalists usually look for a story about how particular individuals are affected. Writing stories which capture the attention of readers is a matter of reporting technique, and the European Court holds that article 10 protects not only the substance of ideas and information but also the form in which they are conveyed … More succinctly, Lord Hoffmann observed in Campbell v MGN Ltd [2004] 2 AC 457, 474, para 59, "judges are not newspaper editors." … This is not just a matter of deference to editorial independence. The judges are recognising that editors know best how to present material in a way that will interest the readers of their particular publication and so help them to absorb the information. A requirement to report it in some austere, abstract form, devoid of much of its human interest, could well mean that the report would not be read and the information would not be passed on. Ultimately, such an approach could threaten the viability of newspapers and magazines, which can only inform the public if they attract enough readers and make enough money to survive.

64. Lord Steyn put the point succinctly in In re S [2005] 1 AC 593, 608, para 34, when he stressed the importance of bearing 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'."

Mutatis mutandis, the same applies in the present cases. A report of the proceedings challenging the freezing orders which did not reveal the identities of the appellants would be disembodied. Certainly, readers would be less interested and, realising that, editors would tend to give the report a lower priority. In that way informed debate about freezing orders would suffer.

10. When considering the impact on a child of there being publicity in respect of the child's mother's trial for murder Lord Steyn in Re S said at paras. 24, 25, and 27,

"24. On the evidence it can readily be accepted that article 8 is engaged. Hedley J observed (para 18) 'that these will be dreadfully painful times for the child'. Everybody will sympathise with that observation.

25. But it is necessary to measure the nature of the impact of the trial on the child. He will not be involved in the trial as a witness or otherwise. It will not be necessary to refer to him. No photograph of him will be published. There will be no reference to his private life or upbringing. Unavoidably, his mother must be tried for murder and that must be a deeply hurtful experience for the child. The impact upon him is, however, essentially indirect …

27. The interference with article 8 rights, however distressing for the child, is not of the same order when compared with cases of juveniles, who are directly involved in criminal trials. In saying this I have not overlooked the fact that the mother, the defendant in the criminal trial, has waived her right to a completely public trial, and supports the appeal of the child. In a case such as the present her stance can only be of limited weight".

11. I was also referred to by Miss Howard in her very helpful written submissions to the case of Re J (A Minor) [2011] EWHC 1764 (Fam) to the observations of Mr. Justice Baker:

"The fact that she may have been so named or identified is no justification for permitting repetition of such publication".

12. In the case of Surrey County Council v. ME & Ors. [2014] EWHC 489 (Fam) I observed in relation to the evidence necessary in support of an application for reporting restriction orders:

"There comes a point, however, where evidence is not merely speculative but is pure speculation, even from experienced professionals, with no sound or cogent underlying evidential basis. Given the Draconian and wide ranging nature of RROs, I am of the view that the latter evidence will not be sufficient or adequate to provide an evidential basis to establish the 'absolute necessity' for the making of an order nor to establish that the facts of the case are truly 'exceptional'."

13. I also take account of the submission made by Miss Howard on behalf of the local authority as to the comment made by the President, Sir James Munby in the case of Re J [2013] EWHC 2694 (Fam) that when the court is looking for evidence in support of reporting restriction orders "the court can use its common sense".
14. In support of this application there is a statement from the social worker, Mr. Kelly. In that statement he says as follows at para.19,

"Therefore this is a case for which there is currently widespread media interest, which is likely to continue for some time. There is an immediate need that a Reporting Restriction Order is made in the care proceedings relating to EI so that nothing is reported in this case which may lead to the identification of EI, her present whereabouts or carers".

Then, at para. 22 he says,

"It is imperative that EI's identity and her association with her parents be kept confidential".

15. Miss Howard, in her submissions, also refers to the expert reports provided by Dr. Jones, a consultant psychiatrist and Dr. Graham, a psychologist, in the public law care proceedings. They have both examined and assessed EI. They, understandably, set out the dreadful emotional and psychological impact that witnessing the death of her mother will have on EI, compounded by this tragic loss of her mother and, if her father is convicted, the loss of her father for a considerable period of time. Their assessments are deeply troubling to read as to the future that EI now faces. Everybody will undoubtedly have the greatest possible sympathy for the terrible position that EI finds herself in now and will undoubtedly do for the rest of her life. I note that neither of those experts have been asked to give an opinion on what potential further damage, if any, publicity about EI and her mother and father would have upon her.
16. In the submissions on behalf of the local authority it is asserted that if EI is identified as being the child involved in this case, it will have an adverse impact on her. It is asserted that it would thwart the therapeutic process that she is engaged in now and will continue to be involved with for some time to come. It is asserted that although the reporting of the father's trial may be of short duration - a matter of a few days or a week - anything which appears on the internet will be there for the rest of EI's life and that were she, when she is older, to come across her name in association with her mother's death and her father's trial, it may have an adverse impact upon her. It is further asserted that if, in her daily life - when she starts school, for example - friends or others were to search her name on the internet, they would raise her family history with her and that would undo the benefits of the therapy that she has received and will receive. Accordingly, it is submitted that it is necessary for the court to grant a reporting restriction order in narrow terms that would prevent the publication of EI's name.
17. On behalf of the Press Association Mr. Dodd strongly resists the application He sets out in paragraph 24 of his position statement the words of Lord Steyn in, once again, Re S. At paragraph 20 Lord Steyn said,

"Given the number of statutory exceptions, it needs to be said clearly and unambiguously that the court has no power to create by a process of analogy, except in the most compelling circumstances, further exceptions to the general principle of open justice".

Lord Steyn also said at paragraph18,

"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. Mr. Dodd makes the submission that the matter has already been the subject of press reporting. However, he makes the powerful point that the evidence of harm to EI, if she is named, is speculative. He also makes the strong submission that the question is not, "Why should the press name EI?" but rather, "Why may the press not name EI?" He further submits that the issue of the use of EI's name in connection with the reporting of the father's criminal trial and the death of the mother is a matter to be left to the decisions of individual editors. He also makes the powerful point that just because some elements of the press or broadcast media, or others, may misuse the naming of EI is not a justification or a reason for injuncting the whole of the press.
19. Lord Rodger of Earlsferry observed in Re Guardian News & Media Ltd. & Ors. at paragraph 72,

"Of course, allowing the press to identify M and the other appellants would not be risk-free. It is conceivable that some of the press coverage might be outrageously hostile to M and the other appellants – even though nothing particularly significant appears to have been published when Mr al-Ghabra's identity was revealed. But the possibility of some sectors of the press abusing their freedom to report cannot, of itself, be a sufficient reason for curtailing that freedom for all members of the press … The possibility of abuse is therefore simply one factor to be taken into account when considering whether an anonymity order is a proportionate restriction on press freedom in this situation".

20. In considering the competing Articles - Article 10 and Article 8 - and in considering the merits of the application made by the local authority one of course has the greatest possible sympathy for EI. She very sadly will have to live with the tragic events of 31 July, 2013 for the rest of her life. The decision I have to make, however, is whether there is sufficient evidence of harm to EI if she is named, which when balanced against the freedom of expression under Article 10 of the press & broadcast media, it is an absolute necessity for me to make the reporting restrictions order sought. Mr. Dodd tells me, and I accept, that some newspaper editors have already made the decision that they will not name EI in any reporting of the father's criminal trial.
21. I accept that EI faces, emotionally and psychologically, a very difficult future. I accept that there is a possibility that if she is named in either the press or the broadcast media - in particular, on the internet - that at some future date she may come across that and it may cause her some distress or other people with whom she is associated may come across it and mention it to her. That, I accept, may cause her some distress.
22. However, I am not satisfied that there is clear or cogent evidence that that risk would either thwart the therapy that she is receiving or would undoubtedly undo the benefits she may derive from her therapy. I consider the potential risks of further harm to EI, if she is named in connection with the reporting of her father's trial, to be speculative and speculation. Even if I am wrong about that, the risks of further additional harm to EI do not overcome the high hurdle that is required for the granting of a reporting restrictions order. If one was solely concerned with the welfare best interests of EI it may well be that the court would want to take the course of least harm to EI and, accordingly, would make an order. That is not the position the court is in. The court is having to balance the Article 8 rights of EI with the Article 10 rights of the press and broadcast media. I am not satisfied that the naming of EI and the risks of that to her are so clear or compelling that it justifies placing a restriction upon the press and broadcast media in the manner in which they report the father's trial. It is submitted on behalf of the local authority that this case is very different from other reported cases because the child was present when her mother was killed. I accept that is an extremely unusual feature. But, I also have to accept that that feature is one which will be, I have no doubt, of considerable interest to the press and broadcast media and to their readers, viewers and listeners.
23. In my judgment the issue of the naming of EI in those circumstances must be left to the good sense and professionalism of the editors of the press and the broadcast media.
24. Having reached that decision I therefore refuse the application for a reporting restrictions order.
25. There are, however, two matters of procedure and practice which I wish to deal with. In this case an application to protect the identity of EI was only made on 2 May. Miss Howard, on behalf of the local authority, accepts that there has been inexcusable delay in making an application for a RRO. I have been provided with no explanation as to why there was such a delay between the summer of last year and now. If an order is so important and essential to protect a child's interests then local authorities must consider making appropriate applications at the earliest possible time.
26. Local authorities, or others, applying for reporting restriction orders must give proper and adequate notice to the press and broadcast media. In this case, the giving of just a few hours' notice is simply and wholly unacceptable. Mr. Dodd, on behalf of the Press Association, makes the observation that media lawyers are used to working with very tight time limits and very quickly. I entirely accept that that is the case. But, that does not excuse those who seek such reporting restriction orders failing to give full and proper notice to the press and broadcast media.
27. The second matter was raised by Mr. Dodd, for which I am grateful. He submits that applications for reporting restriction orders by local authorities are increasingly being made at considerable cost in time and money. I endorse his submissions that local authorities, in particular, ought to give very careful thought to alternative means of achieving the aim that they seek when they apply for a reporting restriction order - namely, local authorities should, in future, consider writing to editors of the press and broadcast media, inviting them, for example, not to name a particular child or children in connection with a particular story and setting out clearly, within that letter or e-mail, the reasons in support of such a request. That, alternatively, could be done by sending a letter or an e-mail to what is now the Press Complaints Commission, which will be replaced by the Independent Press Standards Organisation, who may then be requested to transmit the letter or e-mail more widely to the press and broadcast media. In my judgment, that is a course which local authorities should first consider and should first make before launching applications for reporting restriction orders.
28. Accordingly, in this very, very sad case I am not satisfied that there is sufficient evidence of harm coming to, or being caused to, EI either now or in the future years by her being named in any reporting of the trial of her father. I therefore refuse the application for the reporting restriction order. However, I would urge the editors of the press and the broadcast media to give the closest attention as to whether it is necessary to mention EI in the course of their reporting of this tragic case.
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