Law Lords agree with Recorder

 

A fight by a local newspaper to name a mother accused of murdering one of her sons has ended in a major victory for press freedom.

The legal battle begun by the Romford Recorder was taken on by three national newspaper groups after lawyers acting for the murdered boy’s eight-year-old brother, known only as CS, sought to have her name and photograph kept out of the papers.

But five Law Lords ruled last week that the importance of reporting serious criminal trials outweighed the human rights of the boy.

Lord Steyn said that to impose an injunction banning publication of the names of the accused and the victim, or their photographs, would have a “chilling” effect on the principle of open justice.

Lawyers on behalf of CS had sought an order banning publication of the names of, or photographs of, his mother and deceased brother, DS, when she stands trial accused of killing DS by poisoning.

Arguing that this was the only way to protect CS’s privacy and prevent him from being bullied at school, they claimed that earlier decisions in favour of the press had failed to give due prominence to his right to privacy under Article 8 of the European Convention on Human Rights.

Lord Steyn said that DS died, aged nine, on 20 August 2001 of acute salt poisoning in Great Ormond Street Hospital, where he was a patient.

He said that the story was reported in both national and regional newspapers, including the publication of various family details, but when the mother was charged with murder on 9 August 2002, an order was made prohibiting publication of information calculated to lead to the identification of CS, including publication of the family surname.

The Romford Recorder challenged that ruling, and the order was discharged.

The child’s legal guardian appealed, but Mr Justice Hedley at the High Court backed an order that only prevented the media from referring to CS.

The effect of his ruling was that newspapers reporting the mother’s trial would not be prevented from publishing her identity or that of her deceased son or photographs of them.

His ruling was backed, by a two-to-one majority, by the Court of Appeal, and now has won unanimous support from the Law Lords -Lords Bingham, Nicholls, Steyn, Hoffmann and Carswell.

Lord Steyn said: “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.

“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.”

Lord Steyn said that making the order sought in this case could open the way for a flood of other claims extending the principle.

He said: “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.”

Lord Steyn said that, although it was true that newspapers can always contest an application for an injunction, this is a costly matter, which can involve proceedings at different judicial levels, and sometimes time constraints of an impending trial might not always permit such proceedings.

“Often it will be too late and the injunction will have had its negative effect on contemporary reporting,” he said.

The mother is due to be tried at the Central Criminal Court on 15 November 2004. Her trial is expected to last three months.

STEYN SUPPORT

In giving his judgment, Lord Steyn said it was “easy to fall into the trap” of considering the case from the point of view of national newspapers only.

He said: “Local newspapers play a huge role. Very often a sensational or serious criminal trial will be of great interest in the community where it took place.

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 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.”

By Roger Pearson

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