Does a family court judge have jurisdiction to restrict reports of a criminal trial?
Various newspapers are currently opposing the imposition of a permanent injunction which would prohibit the identification of a mother accused of murdering her young son. The dead boy is survived by his six-year-old brother, “C”.
A local newspaper editor who believed that he had successfully applied to lift a Section 39 Children & Young Persons Act order was surprised when the criminal judge at a preliminary hearing took the most unusual step of staying the lifting of the order to enable a further application to be made in the Family Division.
C’s guardian, supported by the local authority, then obtained from the Family Division judge 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. The media has now submitted that no permanent injunction should be granted which does not except from its scope reports of judicial proceedings in open court.
In the leading case on competing jurisdictions, In re R Wardship, Lord Justice Millet said: “I have the greatest doubt whether [the family judge who had restricted reports of the criminal trial of R’s father on charges of abducting R] had jurisdiction to make the order, or anything but a purely theoretical jurisdiction to do so, that is to say, a jurisdiction which should not in practice be exercised.”
In C’s case, in which judgment is awaited, C’s guardian and parents argue, inter alia, that In re R should no longer be followed in the light of the European Convention on Human Rights, incorporated into English Law in 1998. Article 8 provides that everyone has the right of respect for his private and family life.
The media says this article has no application as reports of criminal proceedings held in public cannot constitute an interference with this right.
It relies on Re Z for the principle that in such cases welfare is subordinate to press freedom. In Re Z, Lord Justice Ward said: “The child may be harmed by the realisation that he is related to the object of the publicity, and his self-esteem may be damaged thereby, but all that has to be accepted as part of the slings and arrows of misfortune of life because publicity is but an incidental part of life.”
The outcome of this case could have a considerable bearing on the attitude taken by both criminal and family court judges in the future as to whether defendants with young children should effectively be granted anonymity in criminal courts. Were this to become the norm, defendants such as Fred and Rosemary West would never be named.
Nicholas Alway is a partner in the media team at Farrer & Co