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England and Wales Court of Appeal (Civil Division) Decisions
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Cite as:  EWCA Civ 604
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Lord Justice Stuart-Smith and Mr Justice Nicklin
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LEWIS
LORD JUSTICE WARBY
| THE QUEEN ON THE APPLICATION OF BABITA RAI
- and –
|THE CROWN COURT SITTING AT WINCHESTER
- and –
|(1) PA MEDIA
(2) THE DIRECTOR OF PUBLIC PROSECUTIONS
Jude Bunting (instructed by direct access) for the First Interested Party
Adam Feest QC (instructed by the CPS) for the Second Interested Party
Hearing date: 22 April 2021
Crown Copyright ©
Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties' representatives by email, release to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand-down is deemed to be 10am on 27 April 2021
LORD JUSTICE WARBY:
"11. Publication of matters exempted from disclosure in court.
In any case where a court (having power to do so) allows a name or other matter to be withheld from the public in proceedings before the court, the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purpose for which it was so withheld."
Background to the appeal
(1) The appellant, originally from Nepal, entered the UK in 2017. In May of that year the body of a baby was found in a park. In March 2020 the appellant was arrested on suspicion of murder and in July 2020 she was charged.
(2) On her first appearance before Magistrates on 7 July 2020 an order was made in reliance on section 11 prohibiting until further order the "publication of the name and address of the defendant". The order stated its purpose: "if her name is reported at this time, it could prejudice a trial, it could give advance warning to the perpetrator of the charge."
(3) On the following day there was a preliminary hearing in the Crown Court before HHJ Miller QC at which the judge made an RRO prohibiting publication of the appellant's home address, but not her name. Again, the order was made in reliance on section 11. This Order explained its purposes were "to avoid a substantial risk of prejudice to the administration of justice in the proceedings, namely that reports of the address of the defendant will prejudice a fair trial of proceedings and risk the safety of the defendant's family."
(4) On 23 July 2020 HHJ Cutler CBE, the Hon. Recorder of Winchester, discharged Judge Miller's RRO, thereby lifting the remaining prohibition.
(5) On 30 September 2020, the appellant brought this judicial review claim, challenging the Order of HHJ Cutler. On 15 February 2021 the claim was heard by a Divisional Court (Stuart-Smith LJ and Nicklin J) and dismissed, for reasons given in a reserved judgment handed down on 19 February 2021,  EWHC 339 (Admin) ("the DC Judgment").
(6) On 16 April 2021, at the pre-trial review, the appellant was arraigned on the single count of murder to which she pleaded not guilty. The trial is due to start on 4 May 2021.
The proceedings before Judge Cutler
"My starting point in this case is, and I accept what Mr Dodd says, that there is a presumption here in favour of publicity and … [there] should be a real reason why that should be restricted…
We in the Crown Court now are much helped by the guidance given [in the Judicial College Guidance] and Mr Dodd rightly quotes from that guidance which we receive that the media is particularly concerned that accurate information of those involved in court proceedings, the announcement in open court of names and addresses enables precise identification vital to distinguish the Defendant from someone in the locality who bears the same name and avoids inadvertent defamation.
I say that because no one has actually mentioned but there is a concern here that in Aldershot there is a large community of Nepalese, many of them have very similar surnames… and there is an importance here for the Defendant, if she is to be named publicly, is for the press to understand that they have the right person here. Indeed, the Home Office circular mentioned in … [para 5.4 of the Judicial College Guidance] says that a person's address is as much a part of his description as his name. [There is] a strong public interest in facilitating press reports that have correctly described the persons involved.
I accept what Mr Rule has said … that there is always a balancing that the Court may and must do if Article 8 rights are engaged, and I find that there is that engagement of Article 8 rights, which I have to balance, but balancing from that start point and, as Mr Dodd says, there is no evidence in this case of danger to the Defendant from publication of her home address
Indeed, in the circumstances I come to the conclusion, having borne in mind all that has been said in these submissions to me, that it is right that I should now lift and quash the restriction under the Section 11 order made by Judge Miller so that it no longer applies, which would allow, if the Press wish to, publish the address which they have for Babita Rai…."
The proceedings before the Divisional Court
(1) First, it was submitted that the judge was wrong in law to start with a "presumption" in favour of publication: the right approach is to treat the Convention rights under Articles 8 (privacy) and 10 (freedom of expression) as inherently equal in weight, and to conduct a balancing process that focuses intensely on the specific rights in play, assessing the relative importance of protecting the appellant's address against the significance of its publication. It was argued that the Judicial College Guidance on which the judge relied is misleading and wrong in this respect, failing properly to reflect the principles laid down by the Supreme Court in In re S (A Child) (Identification: Restrictions on Publication)  1 AC 593, In re Guardian News and Media Ltd  2 AC 697, and A v BBC  AC 588.
(2) It was argued, in reliance on Richard v BBC  Ch 169 and Khadija Ismayilova v Azerbaijan (Applications nos. 65286/13 and 57270/14), that criminal suspects retain a legitimate expectation of privacy, such that the release of their address may be an unjustifiable interference with their Article 8 rights.
(3) Thirdly, it was argued that the judge's reasoning process was vitiated because he failed to have regard to relevant matters and/or relied on matters that were immaterial or factually unproven and/or had insufficient regard to the need to avoid subjecting the appellant to unnecessary fears extraneous to the stress of the proceedings. The Article 8 considerations were weighty, whereas inclusion of the claimant's address in reports of the proceedings would make no meaningful contribution to the public interest. An RRO would have no adverse impact on such reports.
(1) In practice, the default position in criminal proceedings in England and Wales is that a defendant's name and address are made available to the public and to reporters. That is the approach adopted in this case, where the court lists for the hearing on 7 July 2020 gave the appellant's name and address - as well as her date of birth, age, nationality, and details of her solicitors.
(2) The practice gives effect to established public policy as reflected in (a) Home Office circulars 78/1967 and 80/1989, which recommended that defendants' names and addresses be stated in open court and included on public court lists; and (b) the legislation that imposes automatic restrictions on the reporting of pre-trial proceedings, which nevertheless treats the defendant's name and address as presumptively reportable aspects of the case. (DC Judgment [31-36]).
(3) In law, the default position when dealing with applications for RROs is the general principle that all proceedings are conducted in public; media reports of the proceedings are an extension of this concept; RROs are derogations from this general principle of open justice which are "exceptional, require clear justification and should be made only when they are strictly necessary to secure the proper administration of justice"; the justification for an RRO must be established by clear and cogent evidence: In re BBC, also known as Sarker,  1 WLR 6023  (Lord Burnett CJ) (DC Judgment [37-38]).
(4) There may be justification if the order is necessary (a) to avoid the administration of justice being frustrated; or (b) to protect the legitimate interests of others (DC Judgment [39-41]).
(5) It is only in truly exceptional circumstances that an order on this second basis can be contemplated: In re Trinity Mirror plc  QB 770 [32-33]. Ordinarily, the collateral impact of publicity for the trial process is part of the price to be paid for open justice and the freedom of the press to report fairly and accurately on judicial proceedings held in public: Khuja v Times Newspapers Ltd  AC 161 [34(2)] (Lord Sumption). (DC Judgment [42-43]).
(6) These and other authorities are inconsistent with the contention made on behalf of the appellant, that the correct starting point in a case such as this is one of presumptive parity as between privacy and publicity. Similar arguments were advanced and rejected in a consistent line of authorities, including In re S itself (see that case at [30-31] (Lord Steyn)), A Local Authority v W  1 FLR 1 [39-40],  (Sir Mark Potter P), and Khuja , [34(4)-(5)] (Lord Sumption). These cases show that:
"the starting point is that any restriction on publication of information from open court proceedings is a significant interference with the Article 10 right that requires justification … By definition, everything that is disclosed in open court proceedings… is a matter of public interest."
(DC Judgment [44-48]).
(7) The appellant's further arguments about the privacy rights of criminal suspects were ill-founded. The domestic authorities show that, in general, a suspect has an expectation of privacy up to the point of charge; but once the suspect has been charged and become a defendant the open justice principle will lead to his or her identification. The ECHR decision in Ismayilova did not assist the appellant, relating as it does to the rights of a complainant in a criminal investigation, not those of the defendant to a criminal prosecution. (DC Judgment [49-50]).
(8) The Judicial College Guidance at paras 1 and 4.4 correctly states the law, gives proper guidance as to the engagement of Article 8 rights, and is accurate and fair. (DC Judgment [51-52]).
(9) Accordingly, HHJ Cutler did not wrongly apply the law. He carried out the balancing exercise he was required to do, and his decision on the evidence available to him was plainly correct. (DC Judgment ).
- The general rule is that the administration of justice must be done in public. The public and the media have the right to attend all court hearings and the media is able to report those proceedings fully and contemporaneously
- Any restriction on these usual rules will be exceptional. It must be based on necessity
- The burden is on the party seeking the restriction to establish it is necessary on the basis of clear and cogent evidence
"In our judgment it is impossible to over emphasise the importance to be attached to the ability of the media to report criminal trials. In simple terms this represents the embodiment of the principle of open justice in a free country. An important aspect of the public interest in the administration of criminal justice is that the identity of those convicted and sentenced for criminal offences should not be concealed. Uncomfortable though it may frequently be for the defendant that is a normal consequence of his crime. Moreover the principle protects his interests too, by helping to secure the fair trial which, in Lord Bingham of Cornhill's memorable epithet, is the "defendant's birthright". From time to time occasions will arise where restrictions on this principle are considered appropriate, but they depend on express legislation, and, where the court is vested with a discretion to exercise such powers, on the absolute necessity for doing so in the individual case.
… If the court were to uphold this ruling so as to protect the rights of the defendant's children under article 8, it would be countenancing a substantial erosion of the principle of open justice, to the overwhelming disadvantage of public confidence in the criminal justice system, the free reporting of criminal trials and the proper identification of those convicted and sentenced in them. Such an order cannot begin to be contemplated unless the circumstances are indeed properly to be described as exceptional."
"Given the weight traditionally given to the importance of open reporting of criminal proceedings it was… appropriate for him, in carrying out the balance required by the ECHR, to begin by acknowledging the force of the argument under article 10 before considering whether the right of the child under article 8 was sufficient to outweigh it."
As appears from In re S , Hedley J had begun by recognising "the primacy in a democratic society of the open reporting of public proceedings on grave criminal charges and the inevitable price that involves in incursions on the privacy of individuals".
(1) In A Local Authority v W , Sir Mark Potter P observed that Lord Steyn, having identified the methodology with its "intense focus", had "strongly emphasised the interest in open justice as a factor to be accorded great weight in both the parallel analysis and the ultimate balancing test".
(2) In A v BBC [56-57], Lord Reed said:
"It is apparent from recent authorities at the highest level ... that the common law principle of open justice remains in vigour, even when Convention rights are also applicable … the starting point in this context is the domestic principle of open justice … Its application should normally meet the requirements of the Convention".
(3) In Khuja , Lord Sumption pointed out that
"… in deciding what weight to give to the right of the press to publish proceedings in open court, the courts cannot, simply because the issues arise under the heading 'private and family life', part company with principles … which have been accepted by the common law for many years … and are reflected in a substantial and consistent body of statute law as well as the jurisprudence on article 10 …"
The case as it stood before HHJ Cutler
"… I attended to Ms Rai with Counsel and an interpreter in the cells following the preliminary hearing at Winchester Crown Court on 8 July 2020 when the restriction relating to publishing Ms Rai's name was lifted. Ms Rai was very upset and crying. She was anxious and disappointed that the restriction had been lifted in relation to her identity and would be spread across the newspapers. She was in a dejected condition and was exhibiting visible signs of distress. She was anxious about the publication of her personal details, including the threat of publication of her home address. I support her application that her personal address be withheld and respectfully invite the Court to continue the order."
As Lewis LJ pointed out in the course of argument, most of this is about the appellant's dismay at being named. None of it supports the submission that the appellant would suffer "deep distress" if her home address were published. That prospect is dealt with as one aspect of "the publication of her personal details", and the term used is "anxious".
The ruling of the Judge
The additional evidence
The effect of our decision
We make a limited RRO
Lord Justice Lewis:
Lord Justice Arnold: