Injunctions were granted on 21 May, 2003, to protect the anonymity of X and Y (the former Mary Bell and her daughter).
On her release in 1980, 12 years after her trial and conviction for the murder of two small children, Mary Bell was provided with a new identity. She gave birth to a daughter in May 1984. That year an injunction was granted in wardship proceedings prohibiting identification of both X and Y, which ordinarily would have lasted until Y turned 18.
Both X and Y then sought to restrain press and public intrusion into their lives by the granting of further injunctions. The question for Dame Elizabeth Butler-Sloss, the president of the family division, was whether their cases were so exceptional that they should be granted lifetime protection against the world.
A great deal of information was already in the public domain. However, X and Y claimed that did not include their present identity and whereabouts, known only to a small number of people. The court was satisfied that these details were capable of being protected under the law of confidentiality.
In assessing the risk of breach of confidence, the court had to take into account the relevant articles of the European Convention, incorporated into the Human Rights Act 1998.
A submission that X’s life was seriously at risk (Article 2) if her identity was disclosed was rejected, distinguishing the Thompson and Venables case.
The court went on to consider the two women’s rights under Article 8 to respect their private and family life, home and correspondence. “Private life” has been defined to include a person’s physical and psychological integrity. However, this article has to be balanced against the freedom of expression rights in Article 10. By section 12 of the human rights act, the court must have regard to the extent to which publication of the material would be in the public interest and to any relevant privacy code.
The president noted that the Press Complaints Commission code required the press to avoid identifying relatives of persons convicted of crime without their consent, but concluded that the existence of the code was insufficient protection for Y.
Putting into the balance the legitimate interests of the public in the process of rehabilitation against the potential damage to X, the court found that the amount of information requiring protection was limited. There was sufficient in the public domain for the press and media to be able to comment freely on the relevant aspects of the Bell case.
Among exceptional reasons in X’s favour was her mental ill-health, which would be exacerbated if she were identified and pursued by the press or public. The age at which she offended, and her semi-iconic status, demonstrated by continuing publicity 35 years after the event, made the risk of publicity a very real one. The positions of the mother and daughter were intertwined and it was impossible to look at either of them in isolation, so the balanced tipped in favour of granting them the relief sought.
The president was satisfied that the granting of the injunctions could be justified under Article 10 (2) as being in accordance with the law, necessary in a democratic society and proportionate to the need to protect the confidentiality of the limited amount of information the subject of the proceedings.
Richard Shillito is a partner in the media team of Farrer & Co
by Richard Shillito