In my previous contribution to this column, I asked whether a family court judge had jurisdiction to restrict reports of a criminal trial. The answer, the Court of Appeal has now confirmed, is “Yes”, although he or she should be slow to exercise it.
The conundrum was highlighted last year following a preliminary hearing in a criminal case in which a mother was accused of murdering her young son. The dead boy was survived by his seven-year-old brother, “C”. It is accepted that the trial will raise important issues about an unusual and controversial form of child abuse and about the conduct of the world-famous children’s hospital in which it was allegedly allowed to take place.
The first attempt to stop the mother being named appeared to have failed when a local newspaper editor successfully applied to lift a Section 39 Children & Young Persons Act Order – the young boy was not going to be a witness. However, the criminal judge then stayed the lifting of his order to enable a further application to be made in the Family Division.
There, C’s guardian, supported by the local authority, obtained an interim order, which had the effect of prohibiting publication of the name of the mother, the father and the dead boy and the publication of photographs of any of them.
News Group Newspapers, Associated Newspapers and Trinity Mirror challenged this and submitted that no permanent injunction should be granted that did not except from its scope reports of judicial proceedings in open court.
“Not without a degree of regret”, after a full hearing the family court judge came down on the side of open reporting.
His decision was recently challenged by C’s guardian in the Court of Appeal. By a 2:1 majority, the Court of Appeal confirmed that the mother could be identified.
All the judges agreed that in such cases a balancing exercise had to be performed. Article 8 (respect for private and family life) and Article 10 (right to freedom of expression) of the European Convention of Human Rights had to be considered as independent elements, neither of which was a “trump card”.
In considering the proportionality of the proposed interference with freedom of expression, a judge should consider not only the importance of press freedom in principle, but also the features that enhanced its importance in the particular case.
These included the particular importance to be attached to the reporting of criminal trials to preserve public confidence in the administration of justice and the fact that the particular trial would raise such important issues.
In considering the proportionality of the proposed interference with the right of C to respect for his private and family life, a judge should consider the magnitude of the interference proposed. He should consider, among other things, the extent to which this additional intrusion (identifying C’s mother in court reports) would add to the interference that had taken place already and was bound to take place in the future, the extent of any further harm that identifying publicity about the trial would do to C’s private and family life, the impact not only on C but also on his father and others who were looking after him, the extent to which their task would be made harder by publicity, and the impact on C’s relationship with his mother.
Hale LJ, dissenting, favoured referring the case back to the family judge for further consideration, because he had misdirected himself. The other two judges considered this unnecessary and that he had come to the right conclusion anyway.
All the judges clearly agreed, however, that in appropriate circumstances, a family judge could impose an identification ban of the kind contemplated. To return to one of my hobby horses: were defendants such as Fred and Rosemary West ever to come before a court again, there is certainly nothing in these judgments that would doom to failure an application on behalf of their children that their parents should not be identified! Nicholas Alway is a partner in the media team at Farrer & Co