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OPINIONS
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
In re S (FC) (a child) (Appellant)
ON
THURSDAY 28 OCTOBER 2004
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Nicholls of Birkenhead
Lord Steyn
Lord Hoffmann
Lord Carswell
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
In re S (FC) (a child) (Appellant)
[2004] UKHL 47
LORD BINGHAM OF CORNHILL
My Lords,
- I have had the benefit of reading
in draft the opinion of my noble and learned friend Lord Steyn. I agree
with it, and would make the order which he proposes.
LORD NICHOLLS OF BIRKENHEAD
My Lords,
- I have had the advantage of
reading in draft the speech of my noble and learned friend Lord Steyn.
For the reasons he gives, with which I agree, I would dismiss this
appeal.
LORD STEYN
My Lords,
- On 19 February 2003 a judge in the
Family Division of the High Court (Hedley J) dismissed an application
for an injunction restraining the publication by newspapers of the
identity of a defendant in a murder trial which had been intended to
protect the privacy of her son who is not involved in the criminal
proceedings: Re S [2003] EWHC 254 (Fam). By a majority (Lord
Phillips of Worth Matravers MR and Latham LJ, with Hale LJ dissenting)
the Court of Appeal dismissed an appeal against the order of Hedley J:
[2004] Fam 43.
I. The death of a child and the criminal proceedings.
- The child concerned is CS, who is
now eight years old. On 20 August 2001, his older brother DS, then aged
nine, died of acute salt poisoning in the renowned Great Ormond Street
Hospital where he was a patient. Press reports about the death appeared
soon afterwards, namely in the "Evening Standard" for 22 August, with
headline "'Poison' theory over mystery death of boy, 9"; in "The
Recorder" (a local paper) for 24 August, with headline "Police Probe
into Boy's Death"; in the "Evening Standard" for 28 August, with
headline "Boy's death from a mystery illness turns into murder inquiry";
in "The Independent" on 29 August, with headline "Poisoning suspected
after heart attack kills boy aged nine"; in the local paper for 31
August with headline "'Poisoned' boy: Now it's murder"; and finally in
the local paper for 5 October with headline "Boy's death: Man and woman
arrested". All these reports named the dead child and where he lived.
The local paper also named his parents, his younger brother and his
school in their earlier reports. The "Evening Standard" did not name the
dead child's parents or refer to his having a younger brother. "The
Independent" named his parents but did not refer to a brother. In their
final report, the local paper did not name the man and woman arrested or
refer to the dead boy's family, but they did name the school he had
attended.
- Shortly after DS died, the London
Borough of Havering brought care proceedings in relation to CS, to whom
I will refer as the child. During the care proceedings the child was
fostered. At a fact-finding hearing in July 2002, Hedley J found that
the death was caused by salt poisoning administered by the mother. As a
result of Hedley J's findings, the mother was charged with murder on 9
August 2002. She is due to be tried at the Central Criminal Court on 15
November 2004. Her trial is expected to last three months.
- The parents have separated. The
father has remained in the family home and the mother has moved out to
live with her parents. At the final hearing in the care proceedings on
13 November 2002, Hedley J made a care order and approved a care plan to
place the child with his father. The child has therefore returned to
live in his home and attend his old school. He has supervised contact
with his mother and maternal grandparents. Contact is still in issue in
the care proceedings and will probably remain so until after the
criminal trial.
- On 29 August 2002, in the criminal
proceedings, Judge Moss QC made an order under section 39 of the
Children and Young Persons Act 1933, prohibiting publication of
information calculated to lead to the identification of the child. The
judge stated that publication of the family's surname would be
considered an act calculated to lead to such identification. On 11
October 2002, on the application of the local paper, Judge Focke QC
discharged the order of 29 August 2002. He took the view, with which
Hedley J later agreed, that section 39 was inapplicable to the case
because the child was not a "child concerned in the proceedings, either
as being the person by or against or in respect of whom the proceedings
were taken, or as being a witness therein".
II. The proceedings in the Family Division.
- The guardian of the child made an
application to Hedley J for an injunction under the inherent
jurisdiction of the High Court. On 17 October 2002, the judge made an
order based upon the standard form commonly used in the Family Division.
The order prohibited publication (a) of the name or address of the child
and his school; (b) of any picture of the child or either of his
parents; and (c) of any other information which might lead to the
child's identification. The order expressly prevented any person
"publishing any particulars of or information relating to any part of
the proceedings before any court which may or is calculated to lead to
the identification of the said child". The order was clearly designed to
prohibit publication of the name of the mother and the deceased child in
any report of the impending criminal trial. It is common ground that the
order also prevented publication of any photographs of the mother or
deceased child.
- The parties and any person
affected were at liberty under the order to apply to vary the order. On
13 November 2002 the local paper, the Romford Recorder, applied ex parte
for a modification of the order. Hedley J changed the order to include
in paragraph 8 the proviso that "Nothing in this order shall of itself
prevent any person (a) publishing any particulars of or information
relating to any part of the proceedings before any court other than a
court sitting in private . . ." However, paragraph 8 was stayed until 13
December 2002 so that the matter could be fully argued at an inter
partes hearing.
- At the hearing before Hedley J
in chambers on 12 and 13 December 2002 three national newspaper groups
(the respondents) appeared on behalf of the press. The local newspaper
withdrew to avoid the risk of being ordered to pay costs. The argument
before Hedley J centred on whether the exception in paragraph 8(a)
should remain in the order. The newspapers accepted that they should not
refer to the child, but they wished to be able to publish the names and
photographs of both parents and of the dead boy. At the hearing the
court had before it a psychiatric report from a well-known child
psychiatrist (Dr. Dora Black) who had already made reports on the child
for the purpose of the care proceedings. When she had seen him in May
2002 he was apparently a well-functioning six-year-old who was attached
to his parents. She said that he had coped well with the death of his
brother and separation from his parents. She ascribed that to the good
therapeutic programme put in place by the local authority. She
understood that the child had now been told how his brother had died and
that his mother was to stand trial for her alleged part in it. Dr. Black
stated that the child was confused and his therapist and father were
trying to help him. She said:
"2.1 CS attends school and once the news of the charges against
his mother becomes public, he will have to cope with the curiosity of
his peers, and possible bullying and teasing. If the reporting was
confined to the time of the trial and CS's name and the name of the
family was not mentioned, and photos not published, it would be
possible to plan for the minimum of adverse effects by removing CS
from the country for a holiday during the trial itself and for
sensitive work to be done with his peers by the school in his absence.
2.2. However if there is a long period of adverse named publicity,
the effect on this vulnerable boy, who has already lost a brother by
death and has been deprived of his mother's care (and it has to be
said that there is no evidence that she was anything other than a good
and caring parent to CS) would, in my opinion be significantly
harmful. It would not be possible to protect him in the way I mention
above. The effect of bereavement on a child of this age is to enhance
the risk of developing a depressive disorder five-fold. CS therefore,
whilst at present well-functioning carries this enhanced risk which
may not manifest itself immediately. The risk continues into adult
life. The addition of the stress of coping with the curiosity and
possible teasing and bullying of his peers would be to significantly
increase the possibility of his developing a psychiatric disorder."
The argument before Hedley J covered, among other things, the case
law on the inherent jurisdiction of the High Court to restrain
publication, the interplay between article 8 (Right to respect for
private and family life), article 10 (Freedom of expression) of the
European Convention on Human Rights as scheduled to the Human Rights Act
1998, and the balancing exercise required under the inherent
jurisdiction and the ECHR.
- On 19 February 2003 Hedley J
delivered a carefully reasoned reserved judgment. He summarised his
conclusions as follows (para 19):
"First I recognise the primacy in a democratic society of the open
reporting of public proceedings on grave criminal charges and the
inevitable price that that involves in incursions on the privacy of
individuals. Secondly, I recognise that Parliament has in a number of
statutes qualified that right to report and, in the context of this
case, most notably in section 39 of the 1933 Act; where a set of
circumstances arise not covered by those provisions the court should
in my judgment be slow to extend the incursion into the right of free
speech by the use of the inherent jurisdiction. Thirdly, I have to
recognise that not even the restrictions contended for here offer real
hope to CS of proper isolation from the fallout of publicity at this
trial; it is inevitable that those who know him will identify him and
thus frustrate the purpose of the restriction. Lastly, I am simply not
convinced that, when everything is drawn together and weighed, it can
be said that grounds under article 10(2) of the ECHR have been made
out in terms of the balance of the effective preservation of CS's
article 8 rights against the right to publish under article 10. I
should add, although it is not strictly necessary to do so, that I
think I would have come to the same conclusion even had I been
persuaded that this was a case where CS's welfare was indeed my
paramount consideration under section 1(1) of the 1989 Act."
The judge decided that the stay should be
lifted and the exception in paragraph 8(a) should remain in the order.
In other words, on the basis of his decision the newspapers were not
prevented in reports of the criminal trial from publishing the identity
of the defendant or her deceased son or photographs of them.
III. The proceedings in the Court of Appeal.
- Through his guardian the child
appealed to the Court of Appeal against the inclusion of paragraph 8(a).
The mother supported the appeal. Although she was the dissenting member
of the court the judgment of Hale LJ (now Baroness Hale of Richmond)
appears first in the law reports because the other members of the court
adopted her detailed analysis of the law. Lord Phillips of Worth
Matravers MR and Latham LJ took the view that, although Hedley J had not
performed the right balancing exercise, he had come to the correct
conclusion. The majority dismissed the appeal. Referring to articles 8
and 10 of the ECHR. Hale LJ concluded (para 60):
". . . there is in my judgment no escape from the difficult
balancing exercise which the Convention requires. Because the judge
did not consider each article independently, and thus did not conduct
that exercise, I consider that this appeal should be allowed."
Hale LJ concluded her judgment as follows:
"62. In my view there is a good case for remitting the case to
Hedley J, who has considerable experience of both criminal and family
cases. However, at the end of his judgment, he stated that he would
have reached the same conclusion even if the child's welfare had been
the paramount consideration. With the greatest of respect to him, I
cannot understand this. If the child's welfare is the paramount
consideration, then when everything else has been taken into account
and weighed, it rules on or determines the issue before the court.
It is the trump card. It might therefore be preferable for the
matter to be reconsidered by the judge who is to try the criminal
case, provided that he is authorised to exercise the inherent
jurisdiction and has the benefit of the relevant material from the
family proceedings.
63. However, it is not necessary for me to resolve that dilemma. I
understand that Lord Phillips of Worth Matravers MR and Latham LJ,
although agreeing with my analysis of the law, consider that Hedley J
was entitled to reach the conclusion he did in this case and that his
decision should not be disturbed. I, for the reasons given, would have
allowed this appeal."
The Court of Appeal refused leave to appeal. The Appeal Committee of
the House of Lords granted leave to appeal.
IV. The Appeal.
- Through his guardian the child
now challenges the decision of the majority of the Court of Appeal.
Counsel for the child submitted that the majority misapplied the
principle of proportionality in a case of competing rights under the
ECHR and in so doing exposed a vulnerable child to interference with his
private and family rights. In outline her submissions were as follows.
The child had a right to respect for his private and family life in that
he was entitled to expect the state to provide, by way of his access to
the court, protection against harmful publicity concerning his family.
The child has a right to protection from publicity which could damage
his health and well-being and risk emotional and psychiatric harm.
Recognising that the subject matter of the trial is a matter of public
interest counsel for the child submitted that a proportionate response
would be to permit only newspaper reports which do not refer to the
family name or incorporate photographs of family members or the
deceased.
- In order to assess the merits of
these arguments it will be necessary to set out the legal framework in
some detail.
V. The relevant ECHR provisions.
- In the present case there is no
suggestion of a possible breach of article 6, which provides that in the
determination of any criminal charge against him "everyone is entitled
to a fair and public hearing". Article 6 is, however, relevant so far as
it provides that "the press and public may be excluded from all or part
of the trial" for a variety of reasons including "where the interests of
juveniles" so require. The purpose of a public hearing is to guard
against an administration of justice in secret and with no public
scrutiny and to maintain public confidence: Axen v Germany (1983)
6 EHRR 195, para 25. Article 6 recognises a prima facie rule in
favour of open justice in criminal trials. In the Court of Appeal Hale
LJ drew attention to the decision of the European Court of Human Rights
in Diennet v France (1995) 21 EHRR 554, at para 33:
"The court reiterates that the holding of court hearings in public
constitutes a fundamental principle enshrined in article 6. This
public character protects litigants against the administration of
justice in secret with no public scrutiny; it is also one of the means
whereby confidence in the courts can be maintained. By rendering the
administration of justice transparent, publicity contributes to the
achievement of the aim of article 6(1), namely a fair trial, the
guarantee of which is one of the fundamental principles of any
democratic society . . ."
This statement reiterates the consistent earlier jurisprudence of the
ECtHR: Pretto v Italy (1983) 6 EHRR 182, para 21; Axen v
Germany (1983) 6 EHRR 195, para 25. Since Diennet this
principle has been reaffirmed by the ECtHR: see Werner v Austria
(1998) 26 EHRR 310; Riepan v Austria ECtHR, 14 November 2000;
Machous v The Czech Republic ECtHR, 12 July 2001; Bakova v
Slovakia, ECtHR, 12 November 2002. These statements by the ECtHR
reveal that under the ECHR there is a general and strong rule in favour
of unrestricted publicity of any proceedings in a criminal trial. Hale
LJ rightly observed that the common law has long adopted a similar
approach: see Scott v Scott [1913 ] AC 417 and
Attorney-General v Leveller Magazine Limited [1979] AC 440, at
450 A-B, per Lord Diplock.
- It is, however, the interaction
between articles 8 and 10 which lies at the heart of this appeal. They
provide as follows:
Right to respect for private and family life
1. Everyone has the right to respect for his private
and family life, his home and his correspondence.
2. 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 well-being 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."
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. This Article shall not prevent States
from requiring the licensing of broadcasting, television or cinema
enterprises.
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, 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."
By section 12(4) of the Human Rights Act 1998 Parliament made special
provision regarding freedom of expression. It provides that when
considering whether to grant relief which, if granted, might affect the
exercise of the Convention right to freedom of expression the court must
have particular regard to the importance of the right.
- 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.
VI. The general rule.
- In oral argument it was accepted
by both sides that the ordinary rule is that the press, as the watchdog
of the public, may report everything that takes place in a criminal
court. I would add that in European jurisprudence and in domestic
practice this is a strong rule. It can only be displaced by unusual or
exceptional circumstances. It is, however, not a mechanical rule. The
duty of the court is to examine with care each application for a
departure from the rule by reason of rights under article 8.
VII. Statute law.
- Parliament has created numerous
statutory exceptions to the ordinary rule of open court proceedings in
the interests of justice. It is not necessary to refer to all the
statutory provisions. The CPR rule 39.2 shows the nature of the
exceptions. It provides:
"(1) The general rule is that a hearing is to be in public.
(2) The requirement for a hearing to be in public does not require
the court to make special arrangements for accommodating members of
the public.
(3) A hearing, or any part of it, may be in private if - (a)
publicity would defeat the object of the hearing; (b) it involves
matters relating to national security; (c) it involves confidential
information (including information relating to personal financial
matters) and publicity would damage that confidentiality; (d) a
private hearing is necessary to protect the interests of any child or
patient; (e) it is a hearing of an application made without notice and
it would be unjust to any respondent for there to be a public hearing;
(f) it involves uncontentious matters arising in the administration of
trusts or in the administration of a deceased person's estate; or (g)
the court considers this to be necessary, in the interests of justice.
(4) The court may order that the identity of any party or witness
must not be disclosed if it considers non-disclosure necessary in
order to protect the interests of that party or witness."
Clearly paragraph 3(d) envisages a hearing involving the child or
patient in some way. It is not engaged in the present case.
- There are numerous automatic
statutory reporting restrictions, e.g. in favour of victims of sexual
offences: see, for example, section 1 of the Sexual Offences (Amendment)
Act 1992. There are also numerous statutory provisions, which provide
for discretionary reporting restrictions: see, for example, section 8(4)
of the Official Secrets Act 1920. 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.
- Section 39 of the Children and
Young Persons Act 1933 is of particular relevance. It provides:
"(1) In relation to any proceedings in any court … the court may
direct that - (a) no newspaper report of the proceedings shall reveal
the name, address, or school, or include any particulars calculated to
lead to the identification, of any child or young person concerned
in the proceedings, either as being the person by or against or in
respect of whom the proceedings are taken, or as being a witness
therein; (b) no picture shall be published in any newspaper as
being or including a picture of any child or young person so concerned
in the proceedings as aforesaid; except in so far (if at all) as may
be permitted by the direction of the court."
This provision will be replaced by section 45 of the Youth Justice
and Criminal Evidence Act 1999, which is not yet in force: see also
section 46(3) of the same Act which came into force on 7 October 2004.
For present purposes section 45 is in material respects the same as the
extant section 39(1): see section 45(3). As the words, which I have
italicised, make clear section 39(1) is not engaged in the present case.
My reason for referring to it is, however, the reflection that, in
regard to children not concerned in a criminal trial, there has been a
legislative choice not to extend the right to restrain publicity to
them. This is a factor which cannot be ignored.
VIII. The Inherent Jurisdiction.
- At all stages in this litigation
the provisions of the ECHR have been carefully taken into account. But
at first instance, and in the Court of Appeal, much of the debate
centred on the inherent jurisdiction of the High Court to restrain
publicity. Hedley J and the Court of Appeal were asked to exercise this
inherent jurisdiction. Hale LJ (with the agreement of the other members
of the court) observed (para 40):
"Now that the Human Rights Act 1998 is in force, the relevance of
the jurisdiction may simply be to provide the vehicle which enables
the court to conduct the necessary balancing exercise between the
competing rights of the child under Article 8 and the media under
Article 10."
In their printed cases, and in oral argument, both counsel adopted
this approach. This is the context in which in oral argument the House
was taken on a tour of the following decisions on the inherent
jurisdiction: In re X (A Minor) (Wardship: Jurisdiction) [1975]
Fam 47; In re C (A Minor) (Wardship: Medical Treatment) (No. 2)
[1990] Fam 39; In re M and N (Minors) (Wardship: Publication of
Information) [1990] Fam 211; In re W (A Minor) (Wardship:
Restrictions on Publication) [1992] 1 WLR 100; In re H (Minors)
(Injunction: Public Interest) [1994] 1 FLR 519; R v Central
Independent Television PLC [1994] Fam 192; In re R (Wardship:
Restrictions on Publication) [1994] Fam 254; In re Z (A Minor)
(Identification: Restrictions on Publications) [1997] Fam 1. The
question arises whether such an exercise, in a case such as the present,
is still necessary or useful.
- The House unanimously takes the
view that since the 1998 Act came into force in October 2000, the
earlier case law about the existence and scope of inherent jurisdiction
need not be considered in this case or in similar cases. The foundation
of the jurisdiction to restrain publicity in a case such as the present
is now derived from convention rights under the ECHR. This is the simple
and direct way to approach such cases. In this case the jurisdiction is
not in doubt. This is not to say that the case law on the inherent
jurisdiction of the High Court is wholly irrelevant. On the contrary, it
may remain of some interest in regard to the ultimate balancing exercise
to be carried out under the ECHR provisions. My noble and learned friend
Lord Bingham of Cornhill invited the response of counsel to this
approach. Both expressed agreement with it. I would affirm this
approach. Before passing on I would observe on a historical note that a
study of the case law revealed that the approach adopted in the past
under the inherent jurisdiction was remarkably similar to that to be
adopted under the ECHR. Indeed the ECHR provisions were often cited even
before it became part of our law in October 2000. Nevertheless, it will
in future be necessary, if earlier case law is cited, to bear in mind
the new methodology required by the ECHR as explained in
Campbell.
IX. Article 8.
- 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.
- 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.
- While article 8.1 is engaged,
and none of the factors in article 8.2 justifies the interference, it is
necessary to assess realistically the nature of the relief sought. This
is an application for an injunction beyond the scope of section 39, the
remedy provided by Parliament to protect juveniles directly affected by
criminal proceedings. No such injunction has in the past been granted
under the inherent jurisdiction or under the provisions of the ECHR.
There is no decision of the Strasbourg court granting injunctive relief
to non-parties, juvenile or adult, in respect of publication of criminal
proceedings. Moreover, the Convention on the Rights of the Child, which
entered into force on 2 September 1990, protects the privacy of children
directly involved in criminal proceedings, but does not protect the
privacy of children if they are only indirectly affected by criminal
trials: articles 17 and 40.2(vii); see also Geraldine Van Bueren, The
International Law on the Rights of the Child, 1994, 141 and 182. The
verdict of experience appears to be that such a development is a step
too far.
- 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.
X. Article 10.
- Article 10 is also engaged. This
case is concerned with the freedom of the press, subject to limited
statutory restrictions, to report the proceedings at a criminal trial
without restriction. It is necessary to assess the importance of this
freedom. I start with a general proposition. In Reynolds v Times
Newspapers Limited [2001] 2 AC 127 Lord Nicholls of Birkenhead described the position as follows
(200G-H):
"It is through the mass media that most people today obtain their
information on political matters. Without freedom of expression by the
media, freedom of expression would be a hollow concept. The interest
of a democratic society in ensuring a free press weighs heavily in the
balance in deciding whether any curtailment of this freedom bears a
reasonable relationship to the purpose of the curtailment."
These observations apply with equal force to the freedom of the press
to report criminal trials in progress and after verdict.
- The importance of the freedom of
the press to report criminal trials has often been emphasised in
concrete terms. In R v Legal Aid Board ex parte Kaim Todner (A
firm) [1999] QB 966, Lord Woolf MR explained (at 977):
"The need to be vigilant arises from the natural tendency for the
general principle to be eroded and for exceptions to grow by accretion
as the exceptions are applied by analogy to existing cases. This is
the reason it is so important not to forget why proceedings are
required to be subjected to the full glare of a public hearing. It is
necessary because the public nature of the proceedings deters
inappropriate behaviour on the part of the court. It also maintains
the public's confidence in the administration of justice. It enables
the public to know that justice is being administered impartially. It
can result in evidence becoming available which would not become
available if the proceedings were conducted behind closed doors or
with one or more of the parties' or witnesses' identity concealed. It
makes uninformed and inaccurate comment about the proceedings less
likely . . . Any interference with the public nature of court
proceedings is therefore to be avoided unless justice requires it.
However Parliament has recognised there are situations where
interference is necessary."
These are valuable observations. It is, however, still necessary to
assess the importance of unrestricted reporting in specifics relating to
this case.
- Dealing with the relative
importance of the freedom of the press to report the proceedings in a
criminal trial Hale LJ drew a distinction. She observed (at para 56):
"The court must consider what restriction, if any, is needed to
meet the legitimate aim of protecting the rights of CS. If prohibiting
publication of the family name and photographs is needed, the court
must consider how great an impact that will in fact have upon the
freedom protected by Article 10. It is relevant here that restrictions
on the identification of defendants before conviction are by no means
unprecedented. The situation may well change if and when the mother is
convicted. There is a much greater public interest in knowing the
names of persons convicted of serious crime than of those who are
merely suspected or charged. These considerations are also relevant to
the extent of the interference with CS's rights."
I cannot accept these observations without substantial qualification.
A criminal trial is a public event. The principle of open justice puts,
as has often been said, the judge and all who participate in the trial
under intense scrutiny. The glare of contemporaneous publicity ensures
that trials are properly conducted. It is a valuable check on the
criminal process. Moreover, the public interest may be as much involved
in the circumstances of a remarkable acquittal as in a surprising
conviction. Informed public debate is necessary about all such matters.
Full contemporaneous reporting of criminal trials in progress promotes
public confidence in the administration of justice. It promotes the
values of the rule of law.
- For these reasons I would,
therefore, attribute greater importance to the freedom of the press to
report the progress of a criminal trial without any restraint than Hale
LJ did.
XI. Consequences of the grant of the proposed injunction.
- There are a number of specific
consequences of the grant of an injunction as asked for in this case to
be considered. First, while counsel for the child wanted to confine a
ruling to the grant of an injunction restraining publication to
protect a child, that will not do. The jurisdiction under the ECHR
could equally be invoked by an adult non-party faced with possible
damaging publicity as a result of a trial of a parent, child or spouse.
Adult non-parties to a criminal trial must therefore be added to the
prospective pool of applicants who could apply for such injunctions.
This would confront newspapers with an ever wider spectrum of
potentially costly proceedings and would seriously inhibit the freedom
of the press to report criminal trials.
- Secondly, if such an injunction
were to be granted in this case, it cannot be assumed that relief will
only be sought in future in respect of the name of a defendant and a
photograph of the defendant and the victim. It is easy to visualise
circumstances in which attempts will be made to enjoin publicity of, for
example, the gruesome circumstances of a crime. The process of piling
exception upon exception to the principle of open justice would be
encouraged and would gain in momentum.
- Thirdly, it is important to bear
in mind that from a newspaper's point of view a report of a sensational
trial without revealing the identity of the defendant would be a very
much disembodied trial. If the newspapers choose not to contest such an
injunction, they are less likely to give prominence to reports of the
trial. Certainly, readers will be less interested and editors will act
accordingly. Informed debate about criminal justice will suffer.
- Fourthly, it is true that
newspapers can always contest an application for an injunction. Even for
national newspapers that is, however, a costly matter which may involve
proceedings at different judicial levels. Moreover, time constraints of
an impending trial may not always permit such proceedings. Often it will
be too late and the injunction will have had its negative effect on
contemporary reporting.
- Fifthly, it is easy to fall into
the trap of considering the position from the point of view of national
newspapers only. Local newspapers play a huge role. In the United
Kingdom according to the website of The Newspaper Society there are 1301
regional and local newspapers which serve villages, towns and cities.
Apparently, again according to the website of The Newspaper Society,
over 85% of all British adults read a regional or local newspaper
compared to 70% who read a national newspaper. Very often a sensational
or serious criminal trial will be of great interest in the community
where it took place. A regional or local newspaper is likely to give
prominence to it. That happens every day up and down the country. For
local newspapers, who do not have the financial resources of national
newspapers, the spectre of being involved in costly legal proceedings is
bound to have a chilling effect. If local newspapers are threatened with
the prospect of an injunction such as is now under consideration it is
likely that they will often be silenced. Prudently, the Romford
Recorder, which has some 116,000 readers a week, chose not to contest
these proceedings. The impact of such a new development on the regional
and local press in the United Kingdom strongly militates against its
adoption. If permitted, it would seriously impoverish public discussion
of criminal justice.
XII. The decision of Hedley J.
- In agreement with Hale LJ the
majority of the Court of Appeal took the view that Hedley J had not
analysed the case correctly in accordance with the provisions of the
ECHR. I do not agree. In my view the judge analysed the case correctly
under the ECHR. Given the weight traditionally given to the importance
of open reporting of criminal proceedings it was in my view appropriate
for him, in carrying out the balance required by the ECHR, to begin by
acknowledging the force of the argument under article 10 before
considering whether the right of the child under article 8 was
sufficient to outweigh it. He went too far in saying that he would have
come to the same conclusion even if he had been persuaded that this was
a case where the child's welfare was indeed the paramount consideration
under section 1(1) of the Children Act 1989. But that was not the shape
of the case before him.
XIII. The Disposal.
- I would dismiss the appeal. The
effect of the opinions delivered in the House today is that there is no
injunction in respect of publication of the identity of the defendant or
of photographs of the defendant or her deceased son.
LORD HOFFMANN
My Lords,
- I have had the advantage of
reading in draft the speech of my noble and learned friend Lord Steyn.
For the reasons he gives, with which I agree, I would dismiss this
appeal.
LORD CARSWELL
My Lords,
- I have had the advantage of
reading in draft the opinion of my noble and learned friend Lord Steyn,
and for the reasons which he has given I would dismiss the appeal.
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