|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Birmingham City Council v Riaz & Ors  EWHC 1857 (Fam) (24 June 2015)
Cite as:  EWHC 1857 (Fam)
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
Strand, London, WC2A 2LL
B e f o r e :
| BIRMINGHAM CITY COUNCIL
|- and -
SAFRAZ RIAZ and OTHERS
Mr Alex Forbes (instructed by Greens Solicitors) for the 12th Respondent AB
Mr Mike Dodd Legal Editor, Press Association (on behalf of The Press Association and Times Newspapers Ltd)
Hearing dates: 22 June 2015
Crown Copyright ©
Mr Justice Keehan :
Law: Reporting Restriction Order
Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary.
The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appear to the court, to be journalistic, literary or artistic material (or to conduct connected with such material) to (a) the extent to which (i) the material has, or is about to, become available o the public, or (ii) it is, or would be,, in the public interest for the material to be published, [and] (b) any relevant privacy code.
"It is important to note that a judge asked to make a section 39 direction in the course of proceedings will in every case balance the competing forces of Article 8 and 10 but upon the section's conventional construction, which I favour, he will do so in a context limited by the fact that if he makes an order it will expire on the subject's 18th birthday. If his order under section 39 is extended, subject to later revocation, for the life of the subject it means that the judge is being asked to give very great, it may be thought overriding, weight to Article 8. Moreover, the common law principle of open justice is no less important; and is likewise intruded upon by the argument of the appellants."
"17. The identities of the parties are an integral part of civil proceedings and the principle of open justice requires that they be available to anyone who may wish to attend the proceedings or who wishes to provide or receive a report of them. Inevitably, therefore, any order which prevents or restricts publication of a party's name or other information which may enable him to be identified involves a derogation from the principle of open justice and the right to freedom of expression. Whenever the court is asked to make an order of that kind, therefore, it is necessary to consider carefully whether a derogation of any kind is strictly necessary, and if so what is the minimum required for that purpose. The approach is the same whether the question be viewed through the lens of the common law or that of the European Convention on Human Rights, in particular articles 6, 8 and 10. As to the latter, see In re Guardian News and Media Ltd  UKSC 1, [2010 2 AC 697 at paragraphs 43-52. In JIH v News Group Newspapers Ltd  EWCA Civ 42,  1 WLR 1645 this court provided guidance on the manner in which applications for injunctions to prevent publication of private information should be approached. The case did not concern an application for approval of a settlement involving a child or protected party, but the making of an anonymity order in the context of an attempt to prevent publication of personal information. To that extent there are obvious differences between that case and the present, but in paragraph 21 of his judgment Lord Neuberger M.R. identified the following principles which are of general application and therefore of direct relevance to applications of the present kind:
(i) an order for anonymity should not be made simply because the parties consent to it;
(ii) the court should consider carefully whether some restriction on publication is necessary at all, and, if it is, whether adequate protection can be provided by a less extensive order than that which is sought;
(iii) if the application is made on the basis that publication would infringe the rights of the party himself or members of his family under article 8 of the Convention, it must consider whether there is sufficient general, public interest in publishing a report of the proceedings which identifies the party concerned to justify any resulting curtailment of his right and his family's right to respect for their private and family life."
"26. In paragraph 13 of his judgment Tugendhat J. observed that advocates commonly address the question as simply one of balancing the demands of privacy and freedom of expression. He rejected that analysis, however, holding that the true question for decision is whether it is necessary for the court to grant a derogation from open justice and thus from the rights of the public at large. In our view he was right to do so and he was also right to hold that the absence of any objection from the defendant or the media does not relieve the court of the duty to consider whether a derogation from the principle of open justice is necessary.
29. Although, as we have indicated, we do not think that approval hearings lie outside the scope of the principle of open justice, we think there is force in the argument that in the pursuit of justice the court should be more willing to recognise a need to protect the interests of claimants who are children and protected parties, including their right and that of their families to respect for their privacy, in relation to such proceedings. Such a willingness is reflected both in the Family Procedure Rules and in the Court of Protection Rules. It might be thought that approval hearings, whether involving children or protected parties, are comparable in nature and deserve to be viewed in a similar light, although it has not been suggested that in general such hearings should be held in private. The function which the court discharges at an approval hearing is essentially one of a protective nature, as it was when it exercised the function of parens patriae on behalf of the Crown in relation to wards of court and lunatics. The court is concerned not so much with the direct administration of justice as with ensuring that through the offices of those who act on his or her behalf the claimant receives proper compensation for his or her injuries. The public undoubtedly has an interest in knowing how that function is performed and the principle of open justice has an important part to play in ensuring that it is performed properly, but its nature is such that the public interest may usually be served without the need for disclosure of the claimant's identity.
33. An important aspect of justice is consistency. The question for decision in each case is whether a derogation from the principle of open justice is necessary in order to ensure that justice itself is done. At one level that must depend on the facts of the individual case, but it is important to ensure a reasonable measure of consistency in order prevent the administration of justice being brought into disrepute. This is an area in which fine distinctions are difficult to justify and not easily understood. Proceedings of this kind are sadly not uncommon and some or all of the issues to which this appeal gives rise regularly confront judges dealing with such applications. It appears that applications for anonymity orders are becoming more frequent and, according to the very experienced judge who dealt with the matter below, there is uncertainty among judges about the course that should be taken. In those circumstances we think it appropriate for us to provide some guidance for judges at first instance.
34. In our view the court should recognise that when dealing with an approval application of the kind now under consideration it is dealing with what is essentially private business, albeit in open court, and should normally make an anonymity order in favour of the claimant without the need for any formal application, unless for some reason it is satisfied that it is unnecessary or inappropriate to do so. Such an order should be drawn in terms that prohibit publication of the name and address of the claimant and his or her immediate family and also (if not already covered) the name of his or her litigation friend. The court must also recognise, however, that the public and the Press have a legitimate interest both in observing the proceedings and making and receiving a report of them. Accordingly, the Press should be given an opportunity to make submissions before any order is made restricting publication of a report of the proceedings, but for obvious reasons it will be unnecessary to notify the Press formally that an application for an anonymity order will be made. If the Press or any other party wishes to contend that an anonymity order should not be made, it will normally be necessary for it to file and serve on the claimant a statement setting out the nature of its case."
"The public undoubtedly has an interest in knowing how that function is performed and the principle of open justice has an important part to play in ensuring that it is performed properly, but its nature is such that the public interest may usually be served without the need for disclosure of the claimant's identity."
I respectfully agree.
"I am, of course, well aware that, until now, the courts have not granted injunctions in the circumstances which arise in this case. It is equally true that the claimants are uniquely notorious. On the basis of the evidence presented to me, their case is exceptional. I recognise also that the threats to the life and physical safety of the claimants do not come from those against whom the injunctions are sought. But the media are uniquely placed to provide the information that would lead to the risk that others would take the law into their own hands and commit crimes against the claimants."
"These uniquely notorious young men are and will, on release, be in a most exceptional situation and the risks to them of identification are real and substantial. It is therefore necessary, in the exceptional circumstances of this case, to place the right to confidence above the right of the media to publish freely information about the claimants. Although the crime of these two young men was especially heinous, they did not thereby forfeit their rights under English law and under the Convention on Human rights. They have served their tariff period and when they are released, they have the right of all citizens to the protection of the law. In order to give them the protection they need and are entitled to receive, I am compelled to grant injunctions."
"4. There is before the court a wealth of evidence of a continuing danger of serious physical and psychological harm to the applicant. There is also evidence which demonstrates convincingly that the subsistence of the injunctions since last May has been very effective in reducing those risks and in permitting the police, the Home Office and the probation service to carry out their responsibilities of protection, treatment and rehabilitation.
5. There is a good deal of evidence before me which shows that there has been a continuing interest in the subject of the applicant and the circumstances in which she is now living. If the injunction were to be refused, the task of the police and the probation service would become much more difficult, if not impossible. There is evidence from the claimant herself, from her solicitor, from a senior police officer, from a senior officer of the probation service and from a psychiatrist. For what, I hope, are obvious reasons, I do not propose to go into that evidence. To do so would jeopardise the very object of this application."
"33. I entirely agree that the granting of such injunctions should be exceptional."
45A Power to restrict reporting of criminal proceedings for lifetime of witnesses and victims under 18
(1)This section applies in relation to—
(a) any criminal proceedings in any court (other than a service court) in England and Wales, and
(b) any proceedings (whether in the United Kingdom or elsewhere) in any service court.
(2)The court may make a direction ("a reporting direction") that no matter relating to a person mentioned in subsection (3) shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as being concerned in the proceedings.
(3)A reporting direction may be made only in respect of a person who is under the age of 18 when the proceedings commence and who is—
(a) a witness, other than an accused, in the proceedings;
(b) a person against whom the offence, which is the subject of the proceedings, is alleged to have been committed.
(4)For the purposes of subsection (2), matters relating to a person in respect of whom the reporting direction is made include—
(a) the person's name,
(b) the person's address,
(c)the identity of any school or other educational establishment attended by the person,
(d)the identity of any place of work of the person, and
(e)any still or moving picture of the person.
(5)The court may make a reporting direction in respect of a person only if it is satisfied that—
(a)the quality of any evidence given by the person, or
(b)the level of co-operation given by the person to any party to the proceedings in connection with that party's preparation of its case,
is likely to be diminished by reason of fear or distress on the part of the person in connection with being identified by members of the public as a person concerned in the proceedings.
The Local Authority
a) The foundation of the jurisdiction to restrain publicity to protect a child's private and family life was now derived from the Convention rights rather than the inherent jurisdiction of the High Court.
If purely founded on the inherent jurisdiction the rationale of a protective order ceasing at the age of 18 years would be more easily understood as that jurisdiction over the child would lapse on their reaching their majority and only in cases of incapacity would the court have a general jurisdiction to act effectively as a protective parent and that would be under the jurisdiction of the Court of Protection.
b) That where the right to a private and family life under Article 8 of the Convention was in conflict with another's right to freedom of expression under Article 10 of the Convention neither article as such had precedence over the other.
This principle is not age dependent.
c) Where the values under the two articles are in conflict an intense focus on the comparative importance of the specific rights claimed in the individual cases was necessary with the justifications for interfering or restricting each right being taken into account and the proportionality test applied to each.
The age of the person for whom the protection is sought is likely to be a relevant factor when the court applies the proportionality test however it is not the sole or dictating factor. It will be one of many factors to be considered in any case.
d) That although the ordinary rule was that the press could report everything that took place in a criminal court, it was the duty of the court to examine with care each application for departure from the rule by reason of article 8, but in so doing the court was not, given the number of statutory exceptions to open court reporting, to create further exceptions by a process of analogy save in the most compelling circumstances.
This court is not concerned with criminal proceedings although it is accepted that the arguments which support the ordinary rule in criminal proceedings are likely to have relevance to any other proceedings which are conducted in open court particularly such as those of promoting confidence in the court system by transparency and public scrutiny however as already indicated above the benefits of the unrestricted reporting of open court proceedings and disadvantages of the restriction of the same have to be considered alongside the adverse impact upon the right to respect for the private and family life of the child (and the child as an adult) any such reporting would bring. We have also invited the Court to consider the areas within criminal proceedings which are analogous to the situation in which AB finds herself as a victim of Chile Sexual Exploitation (CSE) (as found by this court in each of the cases) where there has been clear acceptance of the necessity for restrictions on reporting not simply through the course of the trial but also throughout the lifetime of an alleged victim.
e) That although as a general rule judicial proceedings were held in public and parties were named in judgments and in newspaper reports and law reports the court has the power to make an anonymity order restraining publication of the identity of an individual named in proceedings or judgments so as to fulfil the United Kingdom's positive obligation under Article 8 to secure respect for that individual's private and family life.
f) That essentially the touchstone of determining whether particular details fall within the definition of "private life" is the question of whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy.
g) That human rights law has identified private information as something worth protecting against the state.
h) That the right to protection of reputation, as an element of private life, fell within the scope of the article 8(1).
i) That the meaning "private life" for the purposes of the convention covers the physical and psychological integrity of a person (X v Netherlands  EHRR 235 at paragraph 22)
j) It also encompasses a right to personal development and to establish and develop relationships with other human beings and the outside world. (See Botta v Italy/Bensaid v UK).
k) The tests that the court must apply are whether publication of the material pursues a legitimate aim and whether the benefits that will be achieved by its publication are proportionate to the harm that may be done by the interference with the right to privacy.
l) Any restriction of the right to freedom of expression must be subjected to very close scrutiny but so too must any restriction of the right to respect for private life.
m) If this matter had been within the criminal sphere then as a result of the provisions of Section 1 of the Sexual Offences (Amendment) Act 1992 the existence of an allegation of a qualifying sexual offence would bring the protection of lifetime anonymity to the person against whom the offence was alleged to have been committed, including attempts, conspiracy and incitement of another to commit such offences.
n) The amendment to the Female Genital Mutilation Act 2003 inserting automatic anonymity protections for an alleged victim of an offence under sections 1-3A of the Act, an offence of attempt or conspiracy to commit such an offence or an offence of encouraging or assisting crime in relation to such an offence underlines the continuing and developing awareness of the impact that naming of victims of certain types of actions can have on the victims themselves and on the ability of the state to protect other alleged victims. The explanatory note to the Serious Crime Act 2015 with respect to paragraph 71 which amends the FGMA 2003 to insert the anonymity provisions includes the following:
"282….The prohibition lasts for the lifetime of the alleged victim. The prohibition covers not just more immediate identifying information, such as the name and address or a photograph of the alleged victim, but any other information which, either on its own or pieced together with other information, would help identify the alleged victim. "Publication is given broad meaning… and would include traditional print media, broadcasting and social media such as Twitter and Face book"
285 Paragraph 3 of the New Schedule 1 provides for two defences…the second is where the victim (where aged 16 or over) had freely given written consent to the publication… The policy aim behind the offence is to encourage victims to report FGM offences committed against them and to increase the number of prosecutions for FGM by helping victims feel safe in their anonymity if they report a crime against them. There is a strong public interest in achieving this…"
o) The changes in the FGM law appear to have been provoked at least in part, by the determination of the divisional court in R (JC and RT) v Central Criminal Court that the scope of Section 39 of the Children and Yong Persons Act 1933 could not be read to extend to reports of proceedings after the subject of the order has reached the age of majority at 18. See paragraphs  and  of the judgment of Sir Brian Leveson P.
p) It appears that neither statute itself makes any requirement that the person for whom the anonymity is required is themselves directly the person alleging the commission of the offence only that they are the person against whom the offence has been committed. It would appear illogical and unfair for the child/young person soon becoming a young adult and on into her adult life whose past experience is on all fours with that of a 'complainant' in criminal proceedings to be treated with any less care, respect or protection.
"20. There are numerous automatic statutory reporting restrictions, e.g. in favour of victims of sexual offences: see, for example, section 1 of the Sexual Offences (Amendment) Act 1992. There are also numerous statutory provisions, which provide for discretionary reporting restrictions: see, for example, section 8(4) of the Official Secrets Act 1920. Given the number of statutory exceptions, it needs to be said clearly and unambiguously that the court has no power to create by a process of analogy, except in the most compelling circumstances, further exceptions to the general principle of open justice."
a) a high priority is given by Parliament to young victims or witnesses in criminal proceedings and to the victims of sexual offences and of female genital mutilation; and
b) as I repeat, the approach of the courts has advanced over the course of the last decade or so to protect the Convention rights of litigants in civil proceedings as most recently exemplified by the decision of the Court of Appeal in JXMX above.
a) her continuing vulnerabilities
b) the descriptions of professionals working with her as a quiet, private person when it come to her personal life and doesn't like people knowing her business. See January 15 secure accommodation review report.
c) the indication from the professionals working with her that the media reports on the injunction proceedings have generated particular stresses for her…she has been concerned that she is identifiable from the details that have been published about her, and that others will make judgments about her due to this…the occasions when there has been media reporting of the injunction proceedings have had an impact on her sense of well-being, relationships with others and engagement with support. Further that she finds it highly distressing to see any information about herself in the media, particularly anything that could identify her. She is already under stress due to her current circumstances, and this would be exacerbated by any further release of information. Further stress and anxiety caused by disclosure of information could have a detrimental impact on her engagement with support services and also on her pregnancy.
d) the assessment of Dr Cawthorne in February 2015 that she is extremely sensitive to judgment by others and can get into conflict as a response and that it is crucial that she experiences feeling connected to others in a community that is supportive to her.
a) Firsts can set precedents that influence the behaviour of others, including other young victims who may be looking for a way to seek protection for themselves from on-going abuse; who may be dissuaded from coming forward if they are worried about the treatment or publicity they might receive including future identification simply as a result of attaining their majority.
b) Adulthood is, in the life of this current child, exceptionally close. She will remain a vulnerable young person and a vulnerable young adult with a large number of emotionally challenging stages ahead of her. She deserves the protection of a high level of respect for her private and family life.
c) It is submitted that when the intense comparative focus on the competing rights is properly conducted the potential for harm for this child of:
i) her identity becoming known either directly or through people around her being able to piece together the jigsaw puzzle at the start of her adulthood and through her later life; or
ii) the wider dissemination of details which she would properly regard as intensely personal and private matters, which would have remained confidential to her with a reasonable expectation that she would be the one to control who learns such information;
iii) where such reporting/publicity only comes about by the taking of steps to protect her by a local authority in circumstances where the child had effectively no choice in that application
is so great and long lasting that the balance comes down firmly on the side of the rights protected under Article 8.
d) For AB, and her baby, it is submitted that exceptional circumstances exist which militate against the removal of the protection from identification and for the extension of lifelong anonymity:
i) the nature of the treatment AB received at the hands of numerous males, as found by the court, would had there been a prosecution have entitled her without question to lifelong anonymity
ii) there is no understandable distinction between the two forms of proceedings to rationalise why the family court, which in the nature of the jurisdiction it is exercising should be regarded as a court offering the jurisdiction it is exercising should be regarded as court offering the highest level of protection to vulnerable parties, witnesses and adults, should in fact be offering AB less protection than had there been such proceedings. It would make a mockery of best intentioned decision making of for example decisions not to prosecute in CSE cases which involved an element of welfare of the child victim so that civil proceedings were initiated instead in order to obtain the necessary protection for that victim, that such proceedings would, unless ordered otherwise by the court as in fact occurred in this case, proceed in private and would offer her thereafter lifelong protection of anonymity as having been involved in those proceedings (as the protection there does not cease upon the child reaching their majority) yet as a result of wishing to ensure transparency she will in fact be less protected than she would have been had the most open of proceedings a criminal trial, taken place.
iii) protection of the vulnerable person, respect for their private and family life and a wider public interest in ensuring that the fact of publicity and identification does not deter the reporting of such behaviour apply equally in both jurisdictions.
iv) identifying AB now by name will in the light of her character and personality place tremendous stress upon her at a time when she is already facing the numerous other changes in her life identified above. It will inevitably have an impact on her at a time when she should be concentrating on and engaging in receiving assistance with the birth of her child and the future planning for such child. She needs to be able to feel that her immediate community will be supportive and not judgmental or critical. She will have less confidence if her name is known in addition to the other details already now available to the public as a result of the earlier reporting.
v) she is engaged in care proceedings in which both she and the child would be usually expected to benefit from privacy and anonymity. The publication of identifying details for the mother would place the child's identification at risk through 'the jigsaw' process.
vi) providing her name will inevitably also identify her to a much wider pool of people as a person who is and remains vulnerable to child sexual exploitation. It will operate to advertise her to adults who do not have her interests at heart and who may therefore seek to draw her back into the activities which the proceeding were designed to try and protect her from and this will happen at a time when the powers of the state to protect her from such activities will be much reduced.
"AB does not want to be identified. She has found existing press coverage of her detrimental to her emotional and psychological welfare. Further particulars can be provided at court if necessary.
Publication of AB's identity will inevitably lead to further harm. It is unclear whether and to what extent this has itself been a cause or contributory factor of aspects of her own recent behaviour.
The impact on AB would be such that she may be disinclined to provide further information about past sexual exploitation, or be unforthcoming about any future exploitation. This is a compelling reason to preserve her anonymity."
The Press Association and the Times
"41. The PA and TNL are opposing the application in this case not because they wish to intrude on the privacy of AB, or because they wish to identify her against her wishes. Both news organisations are aware that she is vulnerable and sensitive, which might be considered unsurprising, given what we do know about her recent history and experiences, and both, as has been said before, fully intend to respect her privacy.
42. Rather, the concern is that for the court to make an order such as that requested would be an extraordinary, exceptional, and, we submit, unjustified extension of the court's use of its jurisdiction, and an unwarranted and unjustifiable intrusion on and limitation of the public and the media's rights to freedom of expression under Article 10. The concern of the PA and TNL is that if the court makes an order in a case such as this, it will extend the range of injunctions available to local authorities far beyond anything considered in the cases of Thompson and Venables, Maxine Carr or the Woman formerly known as Mary Bell. An injunction would leave the press bound for the rest of AB's life. While restricting what the media could do, it could also have the effect of placing a serious limitation on what AB herself might be able to do, or consider herself able to do. For example, she might, at some stage, wish to consider offering the story of her experiences for publication, either to a newspaper or magazine or in the form of a book. With an injunction in place, might she feel obliged to obtain the local authority's consent to take whatever action she wished? And what if the local authority were to decide that it was not in her best interests – or possibly its own – to follow such a course of action?"