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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> S, Re  EWHC 4159 (Fam) (20 August 2015)
Cite as:  EWHC 4159 (Fam)
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B e f o r e :
|IN THE MATTER OF THE CHILDREN ACT 1989|
|AND IN THE MATTER OF THE SENIOR COURTS ACT 1981|
|AND IN THE MATTER OF S|
LONDON BOROUGH OF TOWER HAMLETS
|- and -|
(through her Children's Guardian)
(a trading name of Opus 2 International Limited)
Official Court Reporters and Audio Transcribers
5 Chancery Lane, London EC4A 1BL
Tel: 020 7831 5627 Fax: 020 7831 7737
MR. C. BARNES appeared on behalf of the Applicant.
MISS D. FOTTRELL QC (instructed by Fisher Meredith) appeared on behalf of the Mother
MISS S. MORGAN QC (instructed by Miles & Partners) appeared on behalf of the Father
MISS A. MEUSZ appeared on behalf of the Third Respondent.
MISS LOGAN appeared on behalf of the Guardian.
MR. N. HANSEN appeared on behalf of Z.
MISS F. McMAHON (instructed by RPC) appeared on behalf of Associated Newspapers Ltd as representatives of the Press.
MRS B. CONNOLLY QC and MISS J. CARTER MANNING appeared on behalf of the Metropolitan Police.
Crown Copyright ©
MR. JUSTICE HAYDEN
1. The Court read the following documents:-
i. The witness statement of Thelma Ukueku, S's social worker.
ii. The withness statement of Simon Jones, Police officer
2. The Court granted permission to the Applicant to apply for the exercise of the Court's inherent jurisdiction.
1. This order shall have effect until 4.30pm on Monday 17th August.
2. This order binds all persons and all companies (whether acting by their directors, employees or agents or in any other way) who know that the order has been made.
3. This order prohibits the publishing or broadcasting in any newspaper, magazine, public computer network, internet website, sound or television broadcast or cable or satellite programme service of:-
a. The name and address of:-
i. the Child whose details are set out in Schedule 1(a) to this order;
ii. the Child's siblings whose details are set out in Schedule 1(b) to this order;
iii. the Child's parents ("the parents"), whose details are set out in Schedule 2 to this order;
iv. any individual having day-to-day care of or medical responsibility for the Child ("a carer").
b. any picture being or including a picture of either the Child, a carer or an establishment;
c. any other particulars or information relating to the Child;
IF, BUT ONLY IF, such publication is likely to lead to the identification of the Child or her siblings or parents as having been arrested or being the subject of the Local Authority's applications for Wardship and orders pursuant to the inherent jurisdiction under case number: FD15P00129.
Nothing in this Order shall prevent any person from:-
(a) publishing information relating to any part of a hearing in a court in England and Wales (including a coroner's court) in which the court was sitting in public and did not itself make any order restricting publication;
(b) seeking or publishing information which is not restricted by Paragraph 3 above;
(c) inquiring whether a person or place falls within paragraph 3(a) above;
(d) seeking information relating to the Child while acting in a manner authorised by statute or by any court in England and Wales;
(e) seeking information from the responsible solicitor acting for any of the parties or any appointed press officer, whose details are set out in Schedule 4 to this order;
(f) seeking or receiving information from anyone who before the making of this order had previously approached that person with the purpose of volunteering information (but this paragraph will not make lawful the provision or receipt of private information which would otherwise be unlawful).
a. The name and address of -
i. the Child whose details are set "out in Schedule 1 (a) to this order;
ii. the Child's siblings whose details are set out in Schedule 1(b) to
iii. the Child's parents ("the parents"), whose details are set "out in
Schedule 2 to this order;
iv. any individual having day-to-day care of or medical responsibility for the Child ("a carer");
b. any picture being or including a picture of either the Child, a carer or an establishment;
c. any other particulars or information relating 10 the Child;
IF, BUT ONLY IF, such publication is likely to lead to the identification of the Child or her siblings or parents as having been arrested or being the subject of the Local Authority's application for Wardship and orders pursuant to the inherent jurisdiction under case number: FD15POO129. (emphasis added)
1. an arrest, it is contended, is a fundamental aspect of the administration of the criminal justice system: the public interest in knowing both the names of those who are arrested and the offences for which they are arrested is so integral to public confidence in the system that the information should only be withheld if 'absolutely necessary' (as Ms. Michalos puts it in her document);
2. The RRO in the present form prevents publication of the fact of the arrest of five family members with connections with terrorist offences, which is 'unwarranted';
3. the fact of the arrest and the fact that S is subject to wardship proceedings are two entirely separate issues. ANL accepts that the wardship should remain subject to reporting restriction.
"The interplay between articles 8 and 10 has been illuminated by the opinions in the House of Lords in Campbell v MGN limited  2 AC 457. For present purposes the decision of the House on the facts of Campbell and the differences between the majority and the minority are not material. What does, however, emerge clearly from the opinions are four propositions. First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test ..."
"9. In my view, the most powerful recent statement on this topic can be found in the judgment of a five person Court of Appeal in R v Croydon Crown Court ex parte Trinity Mirror PLC and Others  EWCA Crim 50. There, the then President of the Queen's Bench Division, Sir Igor Judge, said:
"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 offices should not be concealed. Uncomfortable though it may frequently be for the defendant that is a normal consequence of his crime…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."
10. In my respectful opinion, this observation properly stresses the general principle that, in the vast majority of cases, a defendant in a criminal case can be expected to be named, unless there is an absolute necessity for anonymity."
56. This approach has the beneficial effect that, with the substitution of the Convention for the inherent jurisdiction of the High Court as the source of the power to grant anti-publicity injunctions in such cases, it is clear that the power to grant such an injunction on welfare grounds in Children Act proceedings now applies equally to proceedings in the County Court as in the High Court, whatever the precise ambit of s.97 of the 1989 Act.
57. In Re S, the conflict was between the child's Article 8 rights to privacy on the one hand and the Article 10 rights of the media to report criminal proceedings on the other. As stated by Lord Steyn at para  neither Article as such has precedence over the other and, where the values under the two Articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual cases is necessary. The justification for interfering with or restricting each right must be taken into account and, finally, the proportionality test must be applied to each.
58. In Re W  EWHC 1564 (Fam), I summarised the effects of the judgment in Re S in this way:
"There is express approval of the methodology in Campbell in which it was made clear that each Article propounds a fundamental right which there is a pressing social need to protect. Equally, each Article qualifies the right it propounds so far as it may be lawful, necessary, and proportionate to do so in order to accommodate the other. The exercise to be performed is one of parallel analysis in which the starting point is presumptive parity, in that neither Article has precedence over or trumps the other. The exercise of parallel analysis requires the court to examine the justification for interfering with each right and the issue of proportionality is to be considered in respect of each. It is not a mechanical exercise to be decided on the basis of rival generalities. An intense focus on the comparative importance of the specific rights being claimed in the individual cases is necessary before the ultimate balancing test in the terms of proportionality is carried out."
"information relating to proceedings before any court silting in private..
(a) where the proceedings-
(i) relate to the exercise of the inherent jurisdiction of the
High Court with respect to minors;
(ii) are brought under the Children Act 1989 or the Adoption and
Children Act 2002; or
(iii) otherwise relate wholly or mainly to the maintenance or
upbringing of a minor;"
63. What is in a name? A lot, the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature. And this is why, of course, even when reporting major disasters, journalists usually look for a story about how particular individuals are affected. Writing stories which capture the attention of readers is a matter of reporting technique, and the European court holds that article 10 protects not only the substance of ideas and information but also the form in which they are conveyed: News Verlags GmbH&Co KG v Austria 31 EHRR 246, 256, para 39, quoted at para 35 above. More succinctly, Lord Hofmann observed in Campbell v MGN Ltd  2 AC 457, 474, para 59, judges are not newspaper editors. See also Lord Hope of Craighead in In re British Broadcasting Corpn  1 AC 145, para 25. This is not just a matter of deference to editorial independence. The judges are recognising that editors know best how to present material in a way that will interest the readers of their particular publication and so help them to absorb the information. A requirement to report it in some austere, abstract form, devoid of much of its human interest, could well mean that the report would not be read and the information would not be passed on. Ultimately, such an approach could threaten the viability of newspapers and magazines, which can only inform the public if they attract enough readers and make enough money to survive.
64 Lord Steyn put the point succinctly in In re S  1 AC 593, 608, para 34, when he stressed the importance of bearing in mind that from a newspapers point of view a report of a sensational trial without revealing the identity of the defendant would be a very much disembodied trial. If the newspapers choose not to contest such an injunction, they are less likely to give prominence to reports of the trial. Certainly, readers will be less interested and editors will act accordingly. Informed debate about criminal justice will suffer.__ Mutatis mutandis, the same applies in the present cases. A report of the proceedings challenging the freezing orders which did not reveal the identities of the appellants would be disembodied. Certainly, readers would be less interested and, realising that, editors would tend to give the report a lower priority. In that way informed debate about freezing orders would suffer.
65 On the other hand, if newspapers can identify the people concerned, they may be able to give a more vivid and compelling account which will stimulate discussion about the use of freezing orders and their impact on the communities in which the individuals live. Concealing their identities simply casts a shadow over entire communities.
66 Importantly, a more open attitude would be consistent with the true view that freezing orders are merely indicative of suspicions about matters which the prosecuting authorities accept they cannot prove in a court of law. The identities of persons charged with offences are published, even though their trial may be many months off. In allowing this, the law proceeds on the basis that most members of the public understand that, even when charged with an offence, you are innocent unless and until proved guilty in a court of law. That understanding can be expected to apply, a fortiori, if you are someone whom the prosecuting authorities are not even in a position to charge with an offence and bring to court. But, by concealing the identities of the individuals who are subject to freezing orders, the courts are actually helping to foster an impression that the mere making of the orders justifies sinister conclusions about these individuals. That is particularly unfortunate when, as was emphasised on the appellant's behalf, they are unlikely to have any opportunity to challenge the alleged factual basis for making the orders.
67 It might be argued that, nevertheless, in this particular case naming M in any report would be an unnecessary luxury. After all, it could be said, what actually matter are the legal and constitutional issues raised in the proceedings and these can be understood and debated on the basis of an anonymised report. But the very fact that M and the other appellants are not accepting, but challenging, the whole system of freezing orders based on mere suspicion means that they are presenting the orders as wrongs done to them, rather than as indications that they themselves have done something wrong. Concealing their identities runs counter to the entire thrust of that case. Should their appeals be allowed, concealment would be even less appropriate. Not E but Mr John Entick of Stepney has gone down in history as the plaintiff in the great case of Entick v Carrington (1765) 19 State Tr 1029.
68 Certainly, the identities of the claimants cannot affect the answers that this court gives to the legal questions in the substantive appeals. So those identities may not matter particularly to the judges. But the legitimate interest of the public is wider than the interest of judges qua judges or of lawyers qua lawyers. Irrespective of the outcome, the public has a legitimate interest in not being kept in the dark about who are challenging the TOs and the AQO. The case of HAY is instructive in this respect. Most people will be astonished, for example, to learn that, up until now, the courts have prevented them from discovering that one of the claimants, Mr Youssef, has already successfully sued the Home Secretary for wrongful detention after a failed attempt to deport him to Egypt. Equally importantly, even while the Treasury is defending these proceedings brought by him, the Government are trying to have his name removed from the 1267 Committee list. Meanwhile, he is busy writing and broadcasting from London on Middle East matters.
Freedom of expression.
(1)This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.
(2)If the person against whom the application for relief is made ("the respondent") is neither present nor represented, no such relief is to be granted unless the court is satisfied—
(a)that the applicant has taken all practicable steps to notify the respondent; or
(b)that there are compelling reasons why the respondent should not be notified.
(3)No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.
(4)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 appears 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 to the public; or
(ii)it is, or would be, in the public interest for the material to be published;
(b)any relevant privacy code.
29. It is submitted that the correct balance to be struck is to allow the publication of the fact of the arrests. This is not a situation where the parents, the siblings or S would usually be expected to be benefit from anonymity. The fact of an arrest falls within the principle of open justice. Therefore it is incumbent upon the applicants for a reporting restrictions order to satisfy the Court that such an order is necessary; it is submitted that they have failed to do so.
30. An order prohibiting the reporting of the fact of an arrest of an entire family is exceptional order. It is submitted that it is an unwarranted and unjustifiable intrusion on the media's right to freedom of expression and public's Article 10 rights to receive information. The public have a right to know that a whole family has been arrested. There is a very strong public interest in publicity concerning suspected terrorist offences - not least witnesses coming forward whether to rebut or support the allegations.
i) Everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications.
ii) Editors will be expected to justify intrusions into any individual's private life without consent. Account will be taken of the complainant's own public disclosures of information.
iii) It is unacceptable to photograph individuals in private places without their consent.
Note - Private places are public or private property where there is a reasonable expectation of privacy.
i) Young people should be free to complete their time at school without unnecessary intrusion.
ii) A child under 16 must not be interviewed or photographed on issues involving their own or another child's welfare unless a custodial parent or similarly responsible adult consents.
iii) Pupils must not be approached or photographed at school without the permission of the school authorities.
iv) Minors must not be paid for material involving children's welfare, nor parents or guardians for material about their children or wards, unless it is clearly in the child's interest.
v) Editors must not use the fame, notoriety or position of a parent or guardian as sole justification for publishing details of a child's private life.
7 Children in sex cases
1. The press must not, even if legally free to do so, identify children under 16 who are victims or witnesses in cases involving sex offences.
2. In any press report of a case involving a sexual offence against a child -
i) The child must not be identified.
ii) The adult may be identified.