Amid the storm surrounding the release of Jon Venables and Robert Thompson, it is timely to reflect on certain of the central legal issues relating to reporting the case. In November 1993, the trial judge, Mr Justice Morland, convicted the pair, and lifted restrictions which had protected their anonymity during the trial, stating that "the public interest overrode the interest of the defendants" and that there was "a need for an informed public debate on crimes committed by young children".
This prompted the publication of their names and photographs in many newspapers, and two days later the judge used his inherent jurisdiction and Section 39 of the Children & Young Persons Act 1933, to ban reporting about the pair’s detention, whereabouts or changes in appearance, effectively outlawing any reports on future change of identity.
The Parole Board became due to consider the pair’s release in 2001 and, in December 2000, Dame Elizabeth Butler-Sloss, the President of the High Court Family Division, heard applications by Newsgroup and others seeking clarification of Justice Morland’s order now that the pair were 18, and applications by the pair for reporting restrictions to continue.
The President found there were compelling reasons to grant injunctions and forbade :-
1. The publication of information about the pair’s new identities, appearances and whereabouts;
2. The soliciting of prohibited information; and
3. Reporting about the secure detention units where the pair were held, until 12 months after release.
The injunctions cover the world at large for the lifetimes of the pair and continue even if prohibited information becomes available on the internet or outside the jurisdiction.
The President ruled there was a real risk to the pair’s rights under the Human Rights Act to life (Article 2) and to protection from torture or inhuman treatment (Article 3), which made it necessary to place their right to confidence above the right to freedom of expression (Article 10).
Debate now rages on many fronts. What if Justice Morland had not allowed the naming of the pair in the first place? Would there have been the same public appetite for the story if a longer period in detention had been served? What will happen if banned details are published abroad or on the internet? Might the pair have civil claims in damages for any breaches of their privacy or confidence?
Dominic Ward is a solicitor in the Media Team at Farrer & Co