England and Wales High Court (Queen's Bench Division) Decisions

Venables amd Thompson v. News Group Internation and Ors [2001] EWHC QB 452 (4th December, 2001)

B e f o r e :

THE PRESIDENT

Mr A. Caldecott Q.C. and Mr S. Suttle (for the Attorney General)
Mr D. Browne Q.C. and Mr J. Dean (instructed by Cobbetts for the Respondent)

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Dame Elizabeth Butler-Sloss, P.

1. On the 8^th January 2001 I granted injunctions in order to protect the lives and physical safety of Jon Venables and Robert Thompson, after their release from detention pursuant to the provisions of section 53(1) of the Children and Young Persons Act 1933. The reasons for the grant of the injunctions were set out in my judgment, reported as Venables v News Group Newspapers Ltd and others; Thompson v News Group Newspapers Ltd and others [2001] 2 WLR 1038. On the 22^nd June 2001, the Manchester Evening News, (MEN) published an article in its second edition and supplied the same information to the Manchester Online website managed by its sister company and which was published on the website the same evening.
2. The Attorney -General applied on the 23^rd August 2001 to commit Greater Manchester Newspapers Ltd, (GMNL), the publishers of MEN, for contempt on the ground that on the 22^nd June GMNL breached my order of the 8^th January 2001 by publishing in MEN or causing to be published on the website information which was likely to lead to the identification of the then present whereabouts of Venables and Thompson. GMNL defended the application and asserted that the newspaper article was not in breach of my order of the 8^th January. The evidence of both sides was contained in the affidavits filed in the contempt proceedings and almost the entire hearing was in private in view of the extreme sensitivity of the evidence adduced. For the same reason, some detailed information has been excluded from this judgment as provided to the public.

The facts.

3. In my judgment handed down on the 8^th January I said at page 1069

"From all the evidence provided to me, I have come to the clear conclusion that if the new identity of these claimants became public knowledge it would have disastrous consequences for the claimants, not only from intrusion and harassment but, far more important, the real possibility of serious physical harm and possible death from vengeful members of the public or from the Bulger family. If their new identities were discovered, I am satisfied that neither of them would have any chance of a normal life and that there is a real and strong possibility that their lives would be at risk."

4. The impending release from detention of the two murderers of James Bulger during the year 2001 considerably increased the publicity around them. It was widely known that each would be interviewed by the Parole Board during the summer. Between the date of my order and the 22^nd June there continued to be regular articles in the Press on the young men and their future.
5. GMNL was not a party to the injunction proceedings nor served with a copy of the order but the order was made 'contra mundum' and widely publicised. On the 13^th June 2001 the Attorney General issued a general warning to editors reminding them of their responsibilities regarding the injunctions restraining the publication of information relating to the identities and whereabouts of Venables and Thompson. It appears that MEN by some technical error may not have received a copy of the 'guidance to editors' note. Nonetheless it has not been suggested to the court that those at MEN were not aware of the broad thrust of the injunction or the purposes it was intended to serve. There was however no copy of the injunction in the newspaper's office.
6. According to the evidence of GMNL, on the 21^st June it was believed that the release of the two boys was imminent. The Editor of MEN, Mr Horrocks, held an editorial conference on the 21^st June and reminded the News Editor, Mr Panter, and others present that there was an injunction in existence and warned Mr Panter against the publication of geographical information concerning the boys' whereabouts and that he should not include any reference to the location of the Parole Board hearings or to the region of the country where one of the boys was believed to be going on holiday. The Editor had previously warned the News Editor to the same effect.
7. On the 22^nd June the Editor was on leave. The first edition of MEN referred to an expected announcement by the Home Secretary that the boys were to be released. The article in the second edition was on the front page and said

"Bulger killers 'freed today'.

....................................

Thompson and Venables, both now 18, have undergone parole board examinations this week.

They are being held in institutions where they were awaiting news at lunchtime."

8. At the time of publication Mr Panter knew the actual addresses of the two secure units where the boys were detained. It appears that he believed that they would have left those units before the issue of the second edition and that the injunction did not cover their past whereabouts. The Managing Editor, Mr Rhodes, discussed the story in general with Mr Panter but did not read the article in the second edition, (the article). He did however read the article which was proposed to be repeated in the third edition and ordered the passages quoted above to be removed. The article in the second edition was placed on the Manchester Online website which was not updated between the second and third editions.
9. The article came to the notice of the Attorney General and his office wrote to the Editor of MEN on the 25^th June indicating the concern of the Attorney General that the publication of the article was a breach of the terms of the injunction. He invited the Editor to make representations. The publishing company, GMNL, instructed their solicitors, Cobbetts, to write on their behalf and on behalf of the Editor to the Attorney General. The solicitors wrote on the 2^nd July a long and apologetic letter. I set out some passages:

"It is the wish of the Board, as it is the wish of Mr Horrocks, that our response to the Attorney General's letter should be plain, that it should acknowledge that there has been fault and that it should convey to the Attorney General the deep regret which all involved in this unfortunate sequence of events feel at what has occurred.

The Board and Mr Horrocks are extremely concerned at what has occurred and have no wish to avoid the issues which gave rise to the complaint. They therefore acknowledge at the outset that there was a grave error of judgment on the part of a member of the Manchester Evening News' staff, a subsequent failure of its internal controls and an inexcusable breakdown in communication between those who, together, should have prevented publication. They apologise unreservedly for all those errors.

Immediately after the error was pointed out to it, the Manchester Evening News issued a statement that it "would never knowingly contravene a Court injunction." In doing so it expressed the position of the whole Group."

10. The letter pointed out that GMNL was invited to join the group of newspapers seeking to oppose the granting of injunctions and declined to do so. It refused to do so because

"it considered the injunction sought to be absolutely necessary to give the boys a real chance in what would in any event be very difficult lives."

11. The letter then set out the explanation for how the article came to be published. It accepted that the words complained of should not have been included in the article. The lack of a copy of the injunction led the News Editor into error. The inclusion of the words may have added a piece to the jigsaw. The letter continued:

"The board consider that it was extremely unfortunate that the News Editor failed to discuss the meaning of the word [institutions] which he had chosen with his colleagues and, by not doing so, failed to stimulate the discussion which would inevitably have made it clear that the meaning contended for by the Attorney General might all too readily be taken by readers. That he made the decision on his own, notwithstanding that over the previous two days Mr Horrocks had specifically warned him to take very great care over the "geography" contained in any article, was a gross error of judgment.

.......As to the availability of information about such "institutions", it is accepted that there was a "chance" that publication could have allowed a determined person to discover the addresses of the "institutions" at which the boys were held. That too is regretted."

12. In a later letter dated the 20^th September, the solicitors for GMNL reserved its position to rely upon the defences which have been raised by Mr Desmond Browne QC, on its behalf.
13. On behalf of the Attorney General Mr Caldecott QC submitted that the letter with its recognition of the situation and that the newspaper was at fault and its regret at what had occurred had in effect been a plea of guilty. Mr Desmond Browne QC did not accept that it was more than a recognition of the unfortunate publication of information that the Editor out of an excess of caution thought would better not be published but that he was not precluded from raising defences to demonstrate that GMNL was not in contempt by publication of the article. I do not consider that the newspaper group is precluded from putting forward all relevant defences to the contempt proceedings. The letter of the 2^nd July is however relevant to the substance of the defences raised.

The Order

14. The order made on the 8^th January 2001 granted injunctions to protect both Venables and Thompson. It restrained the defendant newspaper groups and any person with notice of the order from publishing or causing to be published

"(1)(a)....

(b)....

(c) any information likely to lead to the identification of the past, present or future whereabouts (including all residential or work addresses and telephone numbers) of the said claimants or either of them since the 18^th February 1993, save that the establishments at which either of the Claimants has been held on detention during Her Majesty's pleasure may be identified no earlier than 12 months after the date announced by the Secretary of State for the Home Department as the date by which both Claimants have been released on licence;

(2).....

(3)....

PROVIDED THAT nothing in this order shall of itself prevent any person:

1. (i) ...
2. (ii) publishing any information already in the public domain at the date of this Order (save as referred to in paragraph 2 hereof); or
3. (iii) ....."

15. The saving provision in paragraph 2 does not apply to paragraph (1)(c).

The Questions.

16. There are three questions which need to be answered before GMNL can be held to be in breach of the order of the 8^th January.

1. Did GMNL have notice of the injunctions?

2. Was the information published 'likely to lead to identification' under paragraph (1(c)?

3. Was the information already in the public domain?

17. Before I turn to the three questions, I remind myself that these are quasi-criminal proceedings. As Mustill LJ said in Re C (A Minor)(Contempt) [1986] 1 FLR 578 at page 588:

"...a contempt must be established to a degree of conviction appropriate to an offence of a criminal character: re Bramblevale [1970]Ch.128,137."

18. The Attorney General has the duty to prove the case and to the criminal standard of proof. If I am not satisfied on any of the three questions I cannot find GMNL to be in contempt of the 8^th January order.

Notice

19. The defendants do not seek to rely on lack of notice. It is clear to me that they were well aware of the spirit of the order 'contra mundum' and that the Editor took positive steps to comply with the spirit of the order. It might be wise in the rare case of a 'contra mundum' order for other newspapers to whose notice the order has come, to take the extra step of having a copy of the order available. That is however a matter for individual newspapers and their groups.

'Likely to lead'

20. A defendant cannot be committed for contempt unless the injunction in respect of which he is said to be in contempt is clear in its terms and its breach is clear, see Arlidge, Eady & Smith on Contempt [2^nd ed. 1999 para 12-50]. I bear carefully in mind, as I must, the great importance of clarity in the language of injunctions which may lead to committal proceedings. The words 'likely to lead to' were drafted by Counsel in the injunction proceedings, among them Mr Desmond Browne for the newspaper groups then before the court. It was not then suggested to be ambiguous or uncertain. The words are now challenged as unclear or imprecise. I have been directed to the dictionary meaning. Collins Dictionary of the English Language gives a number of definitions of the word 'likely'. They include: - tending or inclined, apt; probable; having good possibilities of success. I have also had my attention drawn to reported decisions on the use of the words 'likely' and 'probable'. Those decisions and others point to the fact that the word 'likely' may be used in different contexts in different ways. There will undoubtedly be cases in which the use of the word 'likely' will be properly equated with 'probable'. In other cases it has been used to mean something which could or might well happen. The words have to be seen in the context of the sentence and in the context of the situation in which they are used. In my judgment a detailed consideration of the decisions cited to me does not help me to come to a conclusion in the present case. The purpose of the injunctions is to protect the lives and personal safety of these boys. In the passage from my judgment of the 8^th January above, I used the phrase "real possibility that their lives would be at risk." The use of the word 'likely' in the order is not to be equated with statistical probability that it will lead to the identification of the boys or their whereabouts but to the real risk, the real danger, the real chance that it may lead to that dangerous situation. The background to the injunctions is the recognition of the rights of each boy to the protection of Articles 2 and 3 of the Convention from which there is no derogation and the court as a public authority has a duty to act positively to try to ensure those rights.

21. It is obvious from the letter from GMNL's solicitors of the 2^nd July that the Editor and his staff were well aware of the broad thrust of the injunctions and the intentions lying behind them, as Mr Desmond Browne set out in his skeleton argument. I am satisfied from the words and in particular the tone of the letter that the Editor recognised the existence of a real possibility that by giving any details as to location he might put either of the boys into danger of being found. It is clear from the wording of the 2^nd July letter and the instructions given on the 21^st June that the Editor recognised what was acceptable to print in this case and what was not acceptable. He had made a conscientious effort to avoid the very situation that occurred in his absence. If they had had the words of the injunctions in front of them I do not consider that the Editor or the Managing Editor would have had any difficulty in understanding what was required by the order. In the context of the granting of the injunctions the words were clearly intended to guard against the real possibility/ the real chance that the information might lead to the identification of the boys' then whereabouts. Although, during submissions, I expressed some concern, in the light of the attractive submissions of Mr Desmond Browne, that the wording of the order might not be clear, I have come to the view that it does not present any problems of ambiguity. If, however, in an abundance of caution, any further clarity of wording is thought appropriate, I should be prepared to hear submissions.

22. The question is however, whether the publication of the article was likely to lead to the identification of either boy. In the evidence of Ms Karen Harrold, on behalf of the Attorney General, she erected a somewhat elaborate edifice whereby someone with the information contained in the MEN article could search the internet and by reference to statistics supplied by the relevant Government Department could narrow down and finally identify the whereabouts of each boy. The existence of this complicated investigation leading to identification does not sit well with the other argument of the Attorney General on statistics. These statistics were supplied by that Government Department and had been on its website since March 2000 and were unfortunately not removed until after this article had been published, and, it was argued, were not in the public domain since they were, in reality, inaccessible to most people. I am satisfied that it was unlikely that anyone reading the article would then have undertaken this complicated investigation and that the Editor or News Editor of MEN could not have been expected to think that such a course was likely or that there was a real chance that it might lead to the identification of the then whereabouts of either boy through the internet.

23. The other argument of Mr Caldecott has, in my judgment, much more force. He submitted that in the article there was enough information, taken with other information widely known to which I have referred above, to lead anyone with local knowledge or anyone tapping the local knowledge of another to pinpoint where one of the boys was at the time. In the context of the article the added information pointed the way to further investigation. It only required a group of determined people to check on two or three institutions and find one or both of the secure units occupied by the boys at that time. Mr Desmond Browne submitted that there were other secure units in the area, and that this information was not widely known and was, in any event, inaccurate. Mr Caldecott pointed out, correctly in my view, that, although the information was inaccurate as the distance between the two units, it did link each unit to a third unit in the distance specified in the article. Consequently one but not both units might well be identified. Since the injunctions cover each of the two boys, identification of one unit would be sufficient. The Editor obviously recognised the danger of giving information as to location or distance or even the location of the Parole Board interviews and he gave instructions not to give the information actually published. The timing of the article, its prominent position in the newspaper, the fact that MEN is a widely read local newspaper with a considerable circulation and the probable release of the boys having caused strong adverse feelings and hostility towards the boys, not only in Merseyside but far more widely, all added to the real possibility that the article might lead to the identification of the whereabouts of either boy. Mr Desmond Browne suggested that it would be wrong for the court to rely on information which might be a piece in the jigsaw of identification where the newspaper might not be aware of the significance of the piece supplied by its article. That is an argument which may require development in other circumstances. No injustice could, however, be done to the alleged contemnor in the present case. The News Editor had the local knowledge and the exact information where each boy was placed. He was in a position to be able to assess the degree of risk. I am satisfied that the information given in the article provided added information which, taken with other local knowledge, was likely to lead to the identification of the then whereabouts of one or both boys.

24. Mr Desmond Browne suggested that the case presented by the Attorney General had been based on discovery through the internet and that GMNL had not had an opportunity to meet the new case based on local knowledge. It is, of course, most important that, in proceedings as serious as contempt of court, the alleged offender is given every reasonable chance to put its defence and must not be taken by surprise. I am however satisfied that this case proceeded initially through the correspondence between the Office of the Attorney General and the solicitors for the newspaper group without reference to information provided by websites, save of course, the newspaper group's own website. At paragraphs 18-21 of the skeleton argument of the Attorney General, local knowledge was referred to as one area of identification. On receipt of the skeleton argument by Mr Desmond Browne, there was no application by him, on behalf of his clients, for an adjournment nor any criticism at the beginning of the hearing that this part of the argument of the Attorney General should not be pursued. Although the Attorney General's evidence dwells somewhat on this tortuous internet path, I am satisfied that GMNL were well aware of the importance of local knowledge in relation to the disseminating of information. There is nothing, to my knowledge, to show that GMNL or its legal advisers, were taken by surprise.

25. It follows, therefore, that by the distribution of the article to the Manchester Online website of the sister company and publication in the print edition GMNL caused to be published information likely to lead to the identification of the then whereabouts of the boys or one of them.

Public domain.

26. The date of the order was the 8^th January. Any information in the public domain prior to the 8^th January could properly be repeated by the Press. Any information which was not in Press or other reports before the 8^th January was in breach of the order. If, in breach, new information was disclosed, by the terms of the order it could not be repeated. The consequences of a repeat of such information might be relevant to mitigation, but would nonetheless remain a breach. Prior to the 8^th January the facts in the public domain included that the boys were held under the provisions of section 53 of the Children and Young Persons Act 1933. It was widely known that the two boys were kept at different institutions, that they were in secure units run by local authorities and that each had remained at his secure unit throughout his detention. It was known that they were in the north of England. It was not known before the 8^th January that the area of those units was more clearly identified nor any geographical detail such as distances. Shortly after the 8^th January a further detail, was added by a national newspaper in an article. However the article in the MEN, for the first time, indicated a proximity between the two secure units. The distance was, as I have already set out, incorrect for those two units but was roughly accurate for the proximity of each of the units to a third unit. Neither piece of information had been put in the public domain by the Press before the 8^th January. The further new piece of information was the locale of the Parole Board hearings.

27. I have been somewhat troubled by the question whether the additional information provided by the MEN article was nonetheless in the public domain. Could that information have been obtained in some other way by searching Government Department internet websites, or publications, the 2001 edition of one being handed up to me. The book is, it appears, available in libraries. The information on the Government Department website was, as I have already set out, available in March 2000. The internet is widely used and widely available in internet cafes. I have thought with some anxiety whether the theoretical accessibility of such information in the present case amounts to actual accessibility. Mr Desmond Browne, in his submissions on 'likely to lead to' ridiculed the likelihood of a member of the public following the tortuous route suggested by Ms Harrold to find the whereabouts of either of the boys. I agree with him. It is most unlikely that the information would be found in that way. Such an approach seems to me to have relevance to the question whether it was in the public domain. Does the existence of information which can be accessed but is unlikely to be known to be available to the general public, not engaged in statistics or research of some sort, amount to being as a matter of reality in the public domain?

28. Lord Greene MR in Saltman Engineering Co v Campbell Engineering Co Ltd (1948) 65 RPC 203 at page 215 said:

"the information, to be confidential, must, I apprehend, apart from contract, have the necessary quality of confidence about it, namely, it must not be something which is public property and public knowledge."

29. Sir Nicolas Browne-Wilkinson V.-C in Stephens v Avery[1988] 1 Ch. 449 said at page 454:

"Information only ceases to be capable of protection as confidential when it is in fact known to a substantial number of people."

30. In Attorney General v Guardian Newspapers (No.2) [1990] 1 A C 109, in the Court of Appeal, Sir John Donaldson, MR, said in his summary of the law of confidentiality at page 177:

"(3) As a general proposition, that which has no character of confidentiality because it has already been communicated to the world, i.e., made generally available to the relevant public, cannot thereafter be subjected to a right of confidentiality: O. Mustad & Son v Dosen (Note) [1964] 1 WLR 109. However, this will not necessarily be the case if the information has previously been disclosed to a limited part of the public. It is a question of degree....."

31. In the House of Lords, Lord Goff of Chieveley set out at page 282 the three limiting principles to the law of confidentiality and said in respect of the first principle:

" ....once it (the information) has entered what is usually called the public domain

(which means no more than that the information in question is so generally accessible that, in all the circumstances, it cannot be regarded as confidential,) then, as a general rule, the principle of confidentiality can have no application to it."

32. Applying those general principles to the present case which is founded on confidentiality, there are two separate ways in which this information was said to be available in the public domain before the 8^th January 2001. The first was the publication by the Government Department which was available in libraries. In general, I would agree that information available in the public library was accessible to the public. In the present case, having looked at the 2001 publication, in my view it provides detailed and complicated information and statistics not easy to digest by anyone not accustomed to its format or with sufficient background information to know where to look. I do not consider that such information is realistically accessible to the wider public by being on a library shelf, no doubt, under a specialised heading. I would doubt that members of the public, who were not interested in the specialised information, would know such a book existed or that it was placed on a library shelf. Second, the information placed on the website of a Government Department would require some degree of background knowledge and persistence for it to become available to a member of the public and would not be widely recognised as available. It would appear that national and regional newspapers with their greater resources were not aware of these sources of information.
33. I have come to the conclusion that accessibility to the general public of Government statistical information is, in the present context, theoretical and therefore not generally accessible to the public. This information was not public knowledge. In my judgment therefore the information available in this particular form on the internet or in the publication did not amount to that information having already been placed in the public domain before the 8^th January 2001 or at all.
34. Mr Desmond Browne's fall-back position was that, since a significant part of the information was the description of location and that information had already been put into the public domain after the 8^th January, it would be wrong to make an order against the defendant newspaper group. As far as I can see MEN did not know that information had already been published and in any event one purpose of my order was to prevent repetition of information reported after the 8^th January. I do not consider that argument helps GMNL.

35. In my judgment, therefore, GMNL is in breach of my order of the 8^th January 2001.