England and Wales High Court (Queen's Bench Division) Decisions
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Venables & Anor v News Group News Papers Ltd & Ors  EWHC QB 32 (8th January, 2001)
 Fam 430,
 1 All ER 908,
 HRLR 19,
 Fam Law 258,
 2 WLR 1038,
9 BHRC 587,
 1 FLR 791,
 1 FCR 333,
 UKHRR 628,
 EWHC QB 32,
 EMLR 10
[Buy ICLR report:  Fam 430]
Case No: HQ 0004986 & HQ 0004737
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 8th January 2001
B e f o r e :
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NEWS GROUP NEWSPAPERS LIMITED
ASSOCIATED NEWSPAPERS LIMITED
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Mr E. Fitzgerald QC and Mr B. Emmerson QC(instructed by Bhatt Murphy and Co.) for the First Claimant
Mr Brian Higgs QC and Mr Julian Nutter (instructed by Lloyd Lee Dures) for the Second Claimant
Mr D. Browne QC and Mr A. Wolanski (instructed by Farrer and Co.) for the Defendants
Mr G. Murdoch QC and Mr M. Scott-Manderson for the Official Solicitor
Mr A. Caldecott QC and Mr S. Suttle for the Attorney General
Mr M. Shaw for the Treasury Solicitor
- - - - - - - - - - - - - - - - - - - - -
JUDGMENT: APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)
Dame Elizabeth Butler-Sloss, P. :
- Jon Venables and Robert Johnson are both 18 years old. They are claimants in the proceedings for injunctions in very unusual circumstances. On the 12th February 1993 they killed a little boy of two, James Bulger. They were each 10 and a half years old. The facts and the circumstances of the murder were particularly shocking and distressing and were widely publicised in the media. They were convicted of the murder of James Bulger at Preston Crown Court on the 24th November 1993. They were then 11 years old. They were sentenced to be detained during Her Majesty's pleasure under section 53(1) of the Children and Young Persons Act 1933. They were placed in separate secure units where they have remained throughout their detention. Each unit is a local authority home operated by separate local authorities.
- Each claimant attained the age of 18 during August 2000. Four newspaper groups made an application by summons to the High Court, dated the 24th July 2000, asking for clarification of the injunctions as a result of the impending majority of the claimants. The claimants made it clear that they intended to seek to continue the injunctions after they attained the age of 18. In accordance with the order of Morland J, the matter came before me on the 27th July 2000. I adjourned the application to enable all the relevant parties to be represented and extended the injunctions until the completion of the adjourned hearing.
- The two claimants have now issued proceedings in the Queen's Bench Division which were transferred to the Family Division to be tried by me. The defendants are three large news groups, News Group newspapers, Associated Newspapers and MGN, but they do not represent the newspaper industry nor the media generally. The other parties are the Attorney General who has, through Mr Caldecott QC, made submissions and the Official Solicitor as amicus curiae, on behalf of whom Mr Murdoch QC made submissions, particularly with regard to the interests of children. The Secretary of State did not intervene. He was represented before me by Mr Shaw, who provided me with written evidence and oral information, which have been very helpful. He did not, however, make any submissions on behalf of the Secretary of State. The submissions of all advocates were made on the basis of the written statements and I heard no oral evidence. I heard some submissions in chambers, and gave a judgment in chambers, which remains private. I reserved my decision on the applications made in the claims. I indicated that I would give a judgment setting out my decision on the issues of principle, and that if I were to grant injunctions I would hear further submissions on the form of the order.
- The tariff set by the trial judge, Morland J, was 8 years for each claimant. It was increased by the Lord Chief Justice, Lord Taylor, to 10 years and by the Secretary of State for the Home Department to 15 years. On application for judicial review by both claimants, on the 12th June 1997 the House of Lords quashed the 15 year tariff set by the Secretary of State for the Home Department, see R v Home Secretary ex parte Venables  AC 407. Both claimants made applications to the European Court of Human Rights in Strasbourg. On the 16th December 1999, the European Court held that the United Kingdom was in breach of Article 6(1) and that the tariff in such cases should be set by the judiciary and not by the Secretary of State, see V v United Kingdom; T v United Kingdom (1999) 30 EHRR 121.
- The Secretary of State made an oral statement to Parliament on the 13th March 2000 in which he indicated that he would bring forward legislation, and that, for existing cases, he proposed a fresh review of tariffs in line with the principles in the judgment of the European Court. He said that existing detainees, whose tariffs had not yet expired, should make any representations that they wished to make to the Lord Chief Justice who would make recommendations to him. He would then adopt his recommendation as to the tariff to be set.
- On the 27th July 2000 the Lord Chief Justice, Lord Woolf, issued a Practice Statement on life sentences for murder in which he set out the criteria for the tariff and the procedure. In accordance with that Practice Statement the Lord Chief Justice made a statement on the 26th October 2000 setting out his recommendations to the Secretary of State for the tariff in respect of each claimant and the reasons for his recommendations. He decided that the tariff period for each claimant should expire on the 26th October 2000, the day of his announcement. This recommendation has the effect that the Parole Board is likely, during the year 2001, to make a decision about the reintegration of the claimants into the community.
- At the first day of the hearing, the 1st November 1993, Morland J imposed reporting restrictions under section 39 of the Children and Young Persons Act 1933 to restrain media publicity during the trial. At the conclusion of the trial, after their convictions but before sentence, the judge lifted the reporting restrictions so that the public might be informed of the names and background of each of the claimants. On the 26th November 1993, on an application by the News Group to lift reporting restrictions, Morland J said in his judgment in open court:
"It is necessary for me to balance the public interest in lifting reporting restrictions and the interests of the defendants. I lifted the reporting restrictions as set out in my order of the 24th November. I did this because the public interest overrode the interest of the defendants following the murder and I considered that the background in respect of the two boys` family, lifestyle, education and the possible effect of violent videos, on the defendants` behaviour ought to be brought out into the open because there was a need for an informed public debate on crimes committed by young children. However, public interest also demands that they have a good opportunity of rehabilitation. They must have an opportunity to be brought up in the units in a way so as to facilitate their rehabilitation."
- He granted comprehensive injunctions restricting publication of further information about the two boys, with no limit of time, based both under section 39 (CYPA 1933) and the inherent jurisdiction of the High Court to deal with children. On the hearing of the judicial review proceedings before the Divisional Court on the 19th April 1996, Pill LJ granted injunctions restraining publication of reports referred to in those proceedings.
Form of the injunctions applied for
- The injunctions sought by the two claimants in their claims, which have been amended several times, are not in identical terms. Broadly, however, they both seek injunctions designed to cover four main areas:
(i) protection of information regarding changes in their physical appearance since their detention;
(ii) protection of their new identity when they are released into the community;
(iii) protection of information about their existing placement;
(iv) protection of all specific information relating to their time in the secure units between February 1993 and August 2000.
B. Issues before the court
- The basis upon which the claimants seek relief by way of injunctions is also not precisely the same, but I have decided to look at the broad issues rather than set out separately the case of each claimant. The major issues before the court are:
- Is there jurisdiction to grant an injunction in respect of an adult to protect his identity and whereabouts and other relevant information? The issue of jurisdiction raises the question of the effect of the implementation of the Human Rights Act 1998. One aspect concerns the applicability of the Convention to the present case, since these are private proceedings. The court is, of course, itself a public authority.
- If there is jurisdiction, is there a real possibility that either of the claimants would be at risk of serious physical injury, or even death, if injunctions were not granted?
- In the exceptional circumstances of this case, ought the court to exercise its equitable jurisdiction and make the orders applied for
for the long-term future;
for the present and immediate future;
c) for the past ?
1. Subsidiary issues relate to the extent to which they are entitled to keep confidential historical information about their past life in the secure units, and whether injunctions can or should be granted to protect this information. This also raises questions as to the extent to which the judgment of the editor over the decision whether to publish would be a sufficient safeguard, or the voluntary Code accepted by the Press and applied by the Press Complaints Commission.
- Mr Fitzgerald QC for Venables and Mr Higgs QC for Thompson submitted that the court has jurisdiction to protect individuals in the exceptional position of each of the claimants after the age of 18 and that such protection should last indefinitely. The submission that the court has jurisdiction to grant injunctions was also advanced by Mr Caldecott QC for the Attorney General and was supported by Mr Murdoch QC for the Official Solicitor. I turn now to a more detailed description of the submissions advanced to the court.
On behalf of the claimants
- Mr Fitzgerald submitted that there was before the court clear evidence of a specific, preventable, serious and continued threat to the lives of the claimants. There was a real likelihood that the Press and in particular the defendants intended to publish details of the claimants` present and future whereabouts and descriptions of their appearance and that it would endanger his client`s life, safety and interfere directly with the implementation of his current treatment and his future reintegration into the community. He supported the submissions on behalf of the Attorney General that the law of confidence extended to the present situation. He also relied upon his other grounds for founding jurisdiction to grant injunctions. The court was under a positive obligation to grant injunctions to protect the claimants and in the unique circumstances of these claimants some way must be found to prevent their identities being made public knowledge. He sought by injunctions to cover the past detention, the present situation in the secure units and the future after their release. Mr Higgs supported those submissions.
On behalf of the newspapers
- Mr Desmond Browne reminded me that I had said, in my earlier judgment, that the newspapers he represented acted sensibly and responsibly in coming to court. He also reminded me that hard cases make bad law. He submitted that there was no cause of action disclosed by any of the grounds set out in the claims. There was a presumption in favour of freedom of expression, which was a primary right in a democracy. The speech of Lord Steyn in R v Secretary of State for the Home Department ex parte Simms  3 WLR 328 at page 337 supported him. There was a positive obligation on a public authority to ensure proper protection of rights under the Convention. It was not a question of a balancing exercise by the court. A balancing exercise would presume that the scales started in equal balance. That was not the correct approach. He relied on the speech of Lord Templeman in AG v Guardian Newspapers (1987) 1 WLR 1248 at p 1297, the judgment of Hoffman LJ in R v Central Television (1994) Fam 192 at p203E, 204C and the judgment of Munby J in Kelly v BBC  3FCR 509 at page 525.
- To restrain the freedom of the Press there must be a pressing social need for the restriction, convincingly established by proper concrete evidence and the restrictions must be proportionate to the legitimate aim pursued. The court had to be satisfied that the restriction was necessary on the specific facts of the case and the necessity was not to be found in the present case. He set out possible circumstances in which the injunctions sought would prevent proper reporting of matters of public interest and concern, such as the possible re-offending of either claimant or their potential threat to public safety. That the court was not the only public authority concerned with the future of the claimants, for instance there was also the police. He questioned whether there was continuing evidence of genuine threats. If there were truly threats it was the responsibility of the authorities to deal with the threat and not by way of injunction against the Press.
- If either of the claimants was tracked by a journalist it should be left to the judgment of the editor whether or not to publish the information. The court should trust the Press to exercise restraint. He referred to several instances where the Press was asked by the court not to publish and did not do so, without the necessity for an order. An example was to be found in Broadmoor Hospital Authority and another v R  2 All ER 727. The Protection against Harassment Act 1997 was an available remedy if there was excessive intrusion into the lives of the claimants.
- He said that the situation of the claimants was not unique. If injunctions were granted in the present case, they would become a precedent for the future, for example if Myra Hindley were ever released. Another possible application might be to restrain publication of the identity of paedophiles. He referred to the decision of the Court of Appeal in R v Chief Constable of the North Wales Police  QB 396, in which the Court refused to grant injunctions to prevent the Chief Constable from revealing to the owner of a caravan site the past convictions of two paedophiles living on the site. The situation of the claimants was not akin to that of informants, where a long-established public interest immunity protects their right to immunity, for example, Marks v Beyfus  25 QBD 494. The case of Nicholls v BBC  EMLR 791 did not assist the claimants, as the applicant in that case had a contractual right to the concealment of his identity and was in the position of an informer. There should not be injunctions to protect the anonymity of adults, otherwise it would create a situation in which the more detestable the crime, the greater the claim to anonymity. Open justice would be imperilled and the right of the public to know about killers would be frustrated. This was a detestable crime. The claimants did not have the rights of those with spent convictions but they would have the advantage of being put in a similar position. The granting of a new identity was to allow a convicted prisoner to live a lie.
- The editorial in the News of the World on 29th October 2000 was not to be taken as a threat to publish if the identity of one of the claimants was disclosed. Mr Browne pointed to the fact that famous people did not generally get protection, see for instance, Kaye v Robertson  FSR 62 where the Court of Appeal held that there was no actionable right of privacy in English law in circumstances where journalists had invaded and then photographed the claimant in his hospital bed. The court should apply standard principles and not succumb to siren calls that something needs to be done. If, however, the court did grant injunctions, they must be clear and precise and no wider than absolutely necessary to achieve the legitimate aim, see Sir Thomas Bingham MR in Times Newspapers v MGN Ltd  EMLR 445 at 447.
- An injunction ought not to be contra mundum (against the world at large) and there was no jurisdiction to do so other than under the peculiar administrative jurisdiction of the High Court in respect of minors. He relied upon the passage in the judgment of Lord Eldon in Iveson v Harris (1802) 7 Ves 251, 32 ER 102, that an injunction cannot be granted except against a party to the suit. That has always been taken as law. In any event, publication of the injunctions against his clients would act in a similar way and have that effect. It was not necessary to grant injunctions to protect past confidential information, which was covered by the existing right to confidentiality.
On behalf of the Attorney General and Official Solicitor
- In the submissions on behalf of the Attorney General, Mr Caldecott submitted that as a general proposition there was a strong and proper interest in knowing the identity of those who committed serious and detestable crimes. He pointed to the special position of freedom of expression in English law reinforced by the Human Rights Act, subject to exceptions. The fact that information was confidential in character was not decisive. It would, therefore, require special circumstances for information as to the identity of an offender to be withheld from the public after the offender attained the age of eighteen. The key to these proceedings was whether such circumstances existed in the present case.
- There was an existing law of confidence and it covered identification information which the claimants sought to have protected. He relied upon the speech of Lord Goff of Chieveley in A-G v Guardian Newspapers (No 2)  1 AC 109 at page 281 (see below). Questions of reasonableness affected both what may be protected and the application of the 'public interest' defence. Since an equitable duty of confidence arose from an obligation of conscience, it must be material to consider whether a reasonable person would recognise public disclosure as not being 'just in all the circumstances'. There did not need to be a formal relationship between the parties. Having regard to case law and to the values enshrined in Article 8 of the Convention, it seemed clear that information the disclosure of which would substantially impair a person's private life and imperil his safety must be capable of protection. A restriction was necessary notwithstanding the general public interest in knowing the identity of those responsible for serious crime. The right to life under Article 2 was unqualified and failure to provide protection could well be to act in a way incompatible with the Convention.
- He did not put forward any general principle and each case would have to be considered on its own facts. If information was disclosed which was not generally known, and which was liable to expose the person to whom it related to danger of serious physical harm, it would not be difficult to show that its disclosure would be to the detriment of that person. He drew attention to the North Wales Police case (see above) where, at page 410, Lord Bingham expressly acknowledged that in some circumstances the law of confidence might be applicable. The claimants were entitled to the same protection of confidentiality as any other applicant. In the present case, if their identity or whereabouts were to be detected, it would compromise their new identity.
- The burden was upon the applicants to prove their case. The requirement of necessity should be satisfied by the claimants in respect of each category of information which was sought to be protected and the orders should not go wider than strictly necessary. He said that there were compelling reasons in this case for protecting as confidential the identity of the claimants. He submitted that it was not necessary to restrict past information other than that which would identify them now or in the future. It would be necessary to have some restriction on information at their present units. It might be necessary to include a non-solicitation order. The confidential information about care and treatment did not require injunctions and the other past information did not justify any restriction by the court. The question of whether there should be an injunction 'against the world' was strictly academic since the court could grant one against the defendants and it would be effective against all who had notice of it, (see A-G v Times Newspaper  1 AC 191). It was arguable that the court's power to control its own process and to protect the administration of justice might enable the court to invoke the inherent jurisdiction. It would be highly unsatisfactory if, in a case like the present, where the consequences of identification were grave for the claimants and the administration of justice, and where in general terms identification by the media was a possibility to be taken seriously, protection was only available where the claimants could establish that a particular media outlet intended to identify them. It was important that there should be liberty to apply.
- He did not support the other arguments put forward by Mr Fitzgerald as founding jurisdiction to make orders. Mr Murdoch, for the Official Solicitor, supported the submissions of Mr Caldecott.
- The Law
Jurisdiction to grant an injunction
Application of the Convention
- Before turning to the question of whether there is jurisdiction to grant injunctions, the preliminary issue is whether the Convention applies to this case. It is clear that, although operating in the public domain and fulfilling a public service, the defendant newspapers cannot sensibly be said to come within the definition of public authority in section 6(1) of the Human Rights Act. Consequently, Convention rights are not directly enforceable against the defendants, see section 7(1) and section 8 of the Human Rights Act. That is not, however, the end of the matter, since the court is a public authority, see section 6(3), and must itself act in a way compatible with the Convention, see section 6(1) and have regard to European jurisprudence, see section 2. In a private family law case, Glaser v United Kingdom  3 FCR 193, the European Court, sitting as a Chamber, declared admissible an application by a father seeking the enforcement of contact orders made in private law proceedings between him and the mother of his children. They considered the potential breach of the father's rights under Article 8 and Article 6. At paragraph 63 the Court said:
"The essential object of Article 8 is to protect the individual against arbitrary interference by public authorities. There may, however, be positive obligations inherent in an effective " respect" for family life. Those obligations may involve the adoption of measures designed to secure respect for family life, even in the sphere of relations between individuals, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individual's rights and the implementation, where appropriate, of specific steps, (see among other authorities, X and Y v The Netherlands judgment of 26 March 1985 and mutatis mutandis, Osman v the United Kingdom judgment of 28 October 1998). In both the negative and positive contexts, regard must be had to the fair balance which has to be struck between the competing interests of the individual and the community, including other concerned third parties, and the State's margin of appreciation (see, among other authorities, the Keegan v Ireland judgment of 26 May 1994)".
- The Court held that, in that case, the authorities, including the courts, struck a fair balance between the competing interests and did not fail in their responsibilities to protect the father's right to respect for family life. This decision underlines the positive obligations of the courts including, where necessary, the provision of a regulatory framework of adjudicatory and enforcement machinery in order to protect the rights of the individual. The decisions of the European Court in Glaser (above) and X and Y (see below), seem to dispose of any argument that a court is not to have regard to the Convention in private law cases. In Michael Douglas, Catherine Zeta-Jones and Northern & Shell Limited, [21st December 2000, CA unreported] Sedley LJ at page 60, paragraph 134 held that section 12(4) of the Human Rights Act
"puts beyond question the direct applicability of at least one article of the Convention as between one private party to litigation and another – in the jargon, its horizontal effect."
- In the light of the judgments in the Michael Douglas case, I am satisfied that I have to apply Article 10 directly to the present case.
- That obligation on the court does not seem to me to encompass the creation of a free standing cause of action based directly upon the Articles of the Convention, although that proposition is advanced by Mr Fitzgerald as a fall-back position, if all else fails. The duty on the court, in my view, is to act compatibly with Convention rights in adjudicating upon existing common law causes of action, and that includes a positive as well as a negative obligation.
The jurisdictional basis for an injunction
- It is accepted by all the parties, and it is clearly right, that the basis upon which the injunctions were granted by Morland J on the 26th November 1993 no longer exists. He based his decision on the inherent jurisdiction of the Family Division of the High Court to protect minors, and on the statutory provisions in section 39 of the Children and Young Persons Act 1933. If there is any jurisdiction to grant injunctions it has to be found elsewhere. The principal submission in favour of the existence of the court's power is based upon the law of confidence, taking into account the implementation of the Human Rights Act 1998. If the route to the jurisdiction to grant injunctions for the benefit of adults can properly be found within the principles of confidentiality, it would not be necessary to embark, other than briefly, upon the interesting but potentially more speculative routes put forward by Mr Fitzgerald.
- At common law, injunctions may be granted in support of equitable rights and this includes injunctions to restrain breach of confidence. In Broadmoor Hospital Authority v R  2 All ER 727, Lord Woolf MR set out, at pages 731 to 735, the jurisdiction of the court to grant an injunction. He cited with approval a passage from Spry Equitable Remedies (5th edn, 1997 at page 323):
"The powers of courts with equitable jurisdiction to grant injunctions are, subject to any relevant statutory restrictions, unlimited. Injunctions are granted only when to do so accords with equitable principles, but this restriction involves, not a defect of powers, but an adoption of doctrines and practices that change in their application from time to time. Unfortunately, there have sometimes been made observations by judges that tend to confuse questions of jurisdiction or of powers with questions of discretions or of practice. The preferable analysis involves a recognition of the great width of equitable powers, an historical appraisal of the categories of injunctions that have been established and an acceptance that pursuant to general equitable principles, injunctions may issue in new categories when this course appears appropriate."
Lord Woolf referred to two types of injunction that have emerged in the last 30 years or so, the Mareva, or freezing injunction, and the injunction to restrain proceedings in a foreign court. He endorsed the observation of Cooke P in TV3 Network Ltd v Eveready New Zealand Ltd  3 NZLR 435 at page 438:
"the remedy of injunction should be available whenever required by justice."
The issue in the Broadmoor case, which does not arise here, was whether the Hospital Authority had standing to make an application for an injunction. In the present case, if there is jurisdiction to grant injunctions, the claimants clearly have standing to seek the remedy.
The jurisdiction based on confidence
- As I have already said, in my view, the claimants in private law proceedings cannot rely upon a free-standing application under the Convention. In their submissions, the claimants, supported by the Attorney General and the Official Solicitor, relied upon the common law right to confidence. The tort of breach of confidence is a recognised cause of action. Megarry J in Coco v Clark  RPC 41, at page 47, identified three essentials of the tort of breach of confidence:
The evidence must have " the necessary quality of confidence about it."
The information "must have been imparted in circumstances importing an obligation of confidence."
There must be an "unauthorised use of the information to the detriment of the party communicating it."
- In A-G v Guardian newspapers (No 2) (above), Lord Goff of Chieveley said at page 281:
" I start with the broad principle (which I do not in any way intend to be definitive) that a duty of confidence arises when confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others...
...in the vast majority of cases...the duty of confidence will arise from a transaction or relationship between the parties...but it is well settled that a duty of confidence may arise in equity independently of such cases.."
- He raised three limiting principles at page 282:
"...that the principle of confidentiality only applies to information to the extent that it is confidential. In particular, once it has entered what is usually called the public domain (which means no more than that the information in question is so generally accessible that, in all the circumstances, it cannot be regarded as confidential) then, as a general rule, the principle of confidentiality can have no application to it.
The second limiting principle is that the duty of confidence applies neither to useless information, nor to trivia. The third limiting principle is of far greater importance. It is that, although the basis of the law's protection of confidence is that that there is a public interest that confidences should be preserved and protected by the law, nevertheless that public interest may be outweighed by some other countervailing public interest which favours disclosure...It is this limiting principle which may require a court to carry out a balancing operation, weighing the public interest in maintaining confidence against a countervailing public interest favouring disclosure."
- The confidentiality sought to be protected in the present case is clearly not trivial. Lord Goff`s third limiting principle cannot, I would respectfully suggest, now stand in the light of section 12 of the Human Rights Act and Article 10(1) of the Convention, which together give an enhanced importance to freedom of expression and consequently to the right of the Press to publish.
Article 10: Freedom of expression.
- Article 10, as applied to the media, is central to this case. It states, so far as it is relevant to these claims:
"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...
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."
- In section 12 of the Human Rights Act 1998, special provisions are made in relation to applications to restrict freedom of expression. Section 12(4) states:
"The court must have particular regard to the importance of the Convention right to freedom of expression..."
- There is no doubt, therefore, that Parliament has placed great emphasis upon the importance of Article 10 and the protection of freedom of expression, inter alia for the Press and for the media. The Human Rights Act and the Convention do not, however, establish new law. They reinforce and give greater weight to the principles already established in our case law. In R v Secretary of State for the Home Department ex parte Simms  3 WLR 328, Lord Steyn said at page 337:
"Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self-fulfilment of individuals in society. Secondly, in the famous words of Holmes J (echoing John Stuart Mill), "the best test of truth is the power of the thought to get itself accepted in the competition of the market." Abrams v United States (1919) 250 US 616, 630 per Holmes J (dissenting). Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country: see Stone, Seidman, Sunstein and Tushnet, Constitutional Law, 3rd ed. (1996) pp1078-1086."
- Hoffman LJ said, in R v Central Independent Television PLC  Fam 192:
"The motives which impel judges to assume a power to balance freedom of speech against other interests are almost always understandable and humane on the facts of the particular case before them. Newspapers are sometimes irresponsible and their motives in a market economy cannot be expected to be unalloyed by considerations of commercial advantage. Publication may cause needless pain, distress and damage to individuals or harm to other aspects of the public interest. But a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things "right-thinking people" regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute.
It cannot be too strongly emphasised that outside the established exceptions, or any new ones that Parliament may enact in accordance with its obligations under the Convention, there is no question of balancing freedom of speech against other interests. It is a trump card which always wins.
...no freedom is without cost and in my view the judiciary should not whittle away freedom of speech with ad hoc exceptions. The principle that the press is free from both government and judicial control is more important than the particular case."
- Munby J in Kelly v BBC  3 FCR 509 said at page 525d:
"...if those who seek to bring themselves within paragraph 2 of article 10 are to establish "convincingly" that they are – and that is what they have to establish – they cannot do by mere assertion, however eminent the person making the assertion, nor by simply inviting the court to make assumptions; what is required ...is proper evidence."
- In Sunday Times v United Kingdom (1979) 2 EHRR 245 the European Court said at paragraph 65:
"The court is faced not with a choice between two conflicting principles, but with a principle of freedom of expression that is subject to a number of exceptions which must be narrowly interpreted."
- However, more recently, in Michael Douglas, Catherine Zeta-Jones and Northern & Shell Limited (above), Sedley LJ said at paragraph 127:
"...by virtue of ss. 12(1) and (4) [of the Human Rights Act 1998] the qualifications set out in Article 10(2) are as relevant as the right set out in Article 10(1). This means, for example, the reputations and rights of others – not only but not least their Convention rights – are as material as the defendant's right of free expression. So is the prohibition on the use of one party's Convention rights to injure the Convention rights of others. Any other approach to s. 12 would in my judgment violate s.3.
...the much-quoted remark of Hoffman J in R v Central Television plc  Fam. 192, 203 that freedom of speech "is a trump card which always wins" came in a passage which expressly qualified the proposition as lying "outside the established exceptions (or any new ones which parliament may enact in accordance with its obligations under the Convention)". If freedom of expression is to be impeded, in other words, it must be on a cogent ground recognised by law.
... s. 12 of the Human Rights Act 1998 requires the court to have regard to Article 10...this cannot...give the Article 10(1) right to freedom of expression a presumptive priority over other rights. What it does require the court to consider is Article 10(2) along with 10(1), and by doing so bring into the frame the conflicting right to privacy. This right, contained in Article 8 and reflected in English law, is in turn qualified in both contexts by the right of others to free expression. The outcome, which self evidently has to be the same under both articles, is determined principally by considerations of proportionality."
- In his Goodman Lecture, (22nd May 1996), Lord Hoffman referred to his judgment in Central Television and said:
"Some people have read that to mean that freedom of speech always trumps other rights and values. But that is not what I said. I said only that in order to be put [in] the balance against freedom of speech, another interest must fall within some established exception which could be justified under Article 10 of the European Convention". (see also Sedley LJ in the Michael Douglas case at paragraph 137)
- Mr Desmond Browne submitted that that it was not a balancing operation between the right to freedom of expression against any legitimate aim falling within Article 10(2). It would seem to me however that, whether it is called a balancing process or any other description, the conflict that may arise between Article 10(1) and Article 10(2) has to be resolved and the legitimate aim in restricting freedom of expression within the exceptions in Article 10(2) given appropriate weight according to the facts of the individual case. Sedley LJ said at paragraph 137, (of the Michael Douglas case):
"...... the qualifications set out in Article 10(2) are as relevant as the right set out in Article 10 (1)."
- There would not however be such a juggling act in a case which did not fall within the exceptions set out in Article 10(2). It is clear however that, to obtain an injunction to restrain the media from publication of information, it requires a strong case. Brooke LJ said in the Michael Douglas case at paragraph 49:
" Although the right to freedom of expression is not in every case the ace of trumps, it is a powerful card to which the courts of this country must always pay appropriate respect."
And Sedley LJ said at paragraph 137
"If freedom of expression is to be impeded,... it must be on cogent grounds recognised by law."
- The onus of proving the case that freedom of expression must be restricted is firmly upon the applicant seeking the relief. The restrictions sought must, in the circumstances of the present case, be shown to be in accordance with the law, justifiable as necessary to satisfy a strong and pressing social need, convincingly demonstrated, to restrain the Press in order to protect the rights of the claimants to confidentiality, and proportionate to the legitimate aim pursued. The right to confidence is, however, a recognised exception within Article 10(2) and the tort of breach of confidence was the domestic remedy upon which the European Commission, in Earl Spencer v United Kingdom,  25 EHRR CD 105, declared inadmissible an application by Lord and Lady Spencer on the basis that they had not exhausted their domestic remedies.
- I turn to the three other Articles of the Convention which are said by the claimants to be engaged in this case, and which clearly I must consider alongside Article 10.
Article 2, "Right to life"
"1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law."
2. [the exceptions which do not apply]
- If the claimants' case is made out, Article 2 is clearly engaged. In Osman v United Kingdom  1FLR 193, the European Court held that the provisions of Article 2 enjoined a positive obligation upon Contracting States to take measures to secure the right to life. In that case it was the failure of the police to act to protect a family from criminal acts including murder. The European Court said, at paragraphs 115-6:
"The court notes that the first sentence of Article 2(1) enjoins the state not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within it's jurisdiction.
...it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk."
Article 3 "Prohibition of torture"
" No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
- Article 3 is equally potentially applicable, if I am satisfied as to the strength of the claimants' case. Other than in the specified exceptions in Article 2, there is to be no derogation from the rights set out in these two Articles.
Article 8, Right to respect for private and family life
- Article 8 is also potentially applicable. It states:
"Everyone has the right to respect for his private and family life, his home and his correspondence.
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."
- In X and Y v The Netherlands (1985) 8 EHRR 235, the European Court held that, in a case where the prosecutor took no action on a complaint by a father of a sexual assault on his mentally incapacitated daughter of 16, that the state had failed to protect a vulnerable individual from a criminal violation of her physical and moral integrity by another private individual. A violation of Article 8 was found. The court said at page 239, paragraph 23:
"The Court recalls that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves."
- Sedley LJ said in the Michael Douglas case at paragraph 134:
"The other point, well made by Mr Tugendhat, is that it is "the Convention right" to freedom of expression which both triggers the section (see section 12(1)) and to which particular regard is to be had. That Convention right, when one turns to it, is qualified in favour of the reputation and rights of others and the protection of information received in confidence. In other words you cannot have particular regard to Article 10 without having equally particular regard at the very least to Article 8.
........ [Mr Carr] balked at what Mr Tughendhat submitted, and I agree, was the necessary extension of the subsection`s logic. A newspaper, say, intends to publish an article about an individual who learns of it and fears, on tenable grounds, that it will put his life in danger. The newspaper, also on tenable grounds, considers his fear unrealistic. ...it seems to me inescapable that section 12(4) makes the right to life, which is protected by Article 2 and implicitly recognised by Article 10(2), as relevant as the right of free expression to the court`s decision; and in so doing it also makes Article 17 (which prohibits the abuse of rights) relevant."
- Although the Court of Appeal was concerned with an entirely different situation, the observations of Sedley LJ (above) are highly relevant to and helpful in the task facing me in the present case where I have to resolve a potential conflict between Article 10 on the one hand and Articles 2 and 3 and 8 on the other hand.
- The Evidence
- I turn now to the evidence upon which the claimants rely in support of the applications for permanent injunctions and the evidence adduced by the defendant newspapers. The most important issue, by far, is the assessment of the risk to each claimant if his identity and whereabouts were to be discovered and published when he leaves his secure unit and lives in the community. If the risk is real and substantial, and, if an injunction can, and should, be granted, then it may also be necessary to protect each claimant's present placement until he is released.
Evidence from the Secretary of State for the Home Department.
- The Secretary of State provided me with evidence as to the anticipated effects of publicity on the claimants. Mr Le Marechal, head of the section of the Young Offender Group dealing with children detained under section 53(1) (now sections 90-92 of the Powers of the Criminal Courts (Sentencing) Act 2000), made a written statement. The statement included a report from the manager of the secure unit where Thompson is placed and reports from the supervising probation officers of Venables and of Thompson. I also received a report from the manager of the secure unit where Venables is placed. The summary of their evidence is as follows:
If the identity and present whereabouts of the claimants were disclosed it would affect the units, which are not entirely secure. Each unit has public access and is easy to observe from outside. It would be possible for strangers to come within the perimeter of each unit. That, in turn, would affect movements within the units. There is a greater risk of the claimants being bullied or victimised by other inmates if further restrictions are placed on all of them by reason of press or others visiting the units. A major concern is the possibility of intrusive publicity identifying either of the claimants. It would also affect the rights of mobility of all inmates including the claimants. The units are working towards the reintegration of the claimants into the community and it is in the public interest that this aim is achieved.
- The manager of Thompson's secure unit said in his statement that:
"In the past we have received quite explicit hate mail for the attention of Robert and staff who care for him, for example, from three ex-army members "to the vermin who killed Jamie Bulger we don't forget we will get the job done".
- He set out some unspecific examples of difficulties experienced by staff from approaches by the media seeking information about Thompson by telephone calls, from film crews in the grounds, reporters approaching staff and photographers using zoom lenses to photograph the premises. This raises problems of confidentiality in respect of the work done with the claimants and with the other inmates.
- Mr Le Marechal stated that, when the tariff period had been served, it was a matter for the Parole Board to determine whether their detention was no longer necessary for the protection of the public. If satisfied on that issue, the Parole Board could direct their release on life licence under section 28(5) of the Crime (Sentences) Act 1997. Under section 31 of the 1997 Act, each claimant would be subject to conditions, including supervision by a probation officer.
- In their statements, the probation officers assigned to each claimant have expressed their serious concerns about the effectiveness of resettlement if the identities of the claimants become known. They also express the concern that, if their own identities became known, it would have a serious effect upon the ability of the probation service to carry out its statutory function. Although not relevant to the assessment of risk, it is clear that both claimants are extremely frightened about the possibility of being discovered after they leave their secure units.
- Mr Le Marechal considered that, while the claimants continued to be held in the secure units, it would be necessary to impose reporting restrictions in order to safeguard the claimants from photographs or descriptions of their present adult appearance, or from any information which might become available as to where they would go on their release. He did not think that other restrictions on information about the secure units were necessary. He said at paragraph 22 of his statement:
"other life licensees have usually been able successfully to re-integrate into society – however notorious they were at the time of the offence. The claimants are notorious. Indeed in my experience, they are uniquely notorious. I cannot think of any other case – past or present – which has given rise to similar concerns. The court should not think that cases like this are going to arise very often. Unlike most other notorious murderers (whose offences and appearances fade in public consciousness and interest during the course of their long incarceration) the claimants' cases have remained in the public eye ever since they were arrested. Since 1993, the appearance of each has changed beyond recognition. But their new appearances have not been made public. So a reporting restraint in these cases has a better chance of being effective than in many other cases. Were, conversely, their identities and/or appearances as adults to be made public before they are released, or thereafter, it seems inevitable that they would be recognised anywhere in the United Kingdom with all the attendant difficulties that would entail."
- Mr Shaw informed me that, although a decision has not yet formally been made, it is very likely that both claimants will be provided with new identities on release. That would include new names, birth certificates, national insurance numbers, national health cards, passports and so on. I was also told that this would be the first time since the case of Mary Bell in 1980 that new identities would be provided for those convicted of murder. New identities have been provided in the past to "super grasses", such as in the case of Nicholls, but without the application for or grant of injunctions, (see Nicholls v BBC  EMLR 791 where exceptionally an injunction was granted to the "super grass"). I was also informed that it was not the practice of the Home Office to disclose the date of release of those detained under section 53, and that in the present case, the Home Office would not make public the date of release.
- The solicitor for Venables, Mr Dickinson, who has acted for him since 1994, made four statements, which included information about what he described as relentless inquiries from the media about his client over the years. These inquiries have been from all over the world. He referred to a number of breaches of the existing injunctions. He said that that since 1993 there has been a sustained and high level of media interest in the case, and in the claimants, and this shows no signs of diminishing. There remained a high degree of hostility. He exhibited to his first statement a selection of articles from newspapers between the years 1993 to 2000. It was his firm belief that, on his release and for many years thereafter, Venables was at risk of death or serious physical harm. Venables' father, in his statement, referred to the intense media pressure to which his family was subject to at an earlier stage. As a result of this pressure the family had to move on several occasions, his younger children were made wards of court and injunctions were granted for their benefit to restrain publicity.
- The solicitor for Thompson, Mr Lloyd, who has acted for him since 1993, made a statement in which he said that the behaviour of the press in the past poses a real risk to the safety of Thompson to the extent that this had become a matter of life and death. He exhibited a recent article in the Daily Mail (November 2nd 2000 (see below)) reporting that vigilantes in North Wales threatened to burn down the home of a woman wrongly suspected of being the mother of one of the claimants. Mrs Thompson made a statement about the impact on her children and herself. They had changed their names and moved home on eight occasions. She accepted that she had co-operated with journalists in the past, but had not done so for a long time. She was very concerned, if the reporting restrictions were lifted, about the effect of publicity upon her family, and upon her son Robert.
- I have been provided, by those representing the claimants and the defendants, with a very large selection of the Press coverage of this case over the period 1993 to now, covering the murder, the trial, the subsequent litigation in the English courts and the European Court, the decision as to the tariff and the proceedings before me. The press cuttings are helpful for two purposes: firstly, to elicit information to assist in the assessment of the extent of the risk to the claimants, which is said to exist if the identities of the claimants are revealed; secondly, to assist in the assessment as to whether the Press might report details leading to disclosure of their identity if there were no injunctions in place.
Evidence of risk reported by the Press
- The following newspaper cuttings are, in my view, particularly relevant:
- The Sun, 27th January 1994 :
An uncle of the victim said..."if the judge's recommendation is followed, then the streets won't be safe in eight years time".
- The Sun, 1st February, 1994 
Following the newspaper's campaign - an article set out that 80,000 telephone calls had been made to the Television channel to say Bulger killers must rot in jail. Coupon attached to the article to be sent by readers to the Home Secretary expressing support for the view that the claimants should stay in prison for life.
- The Sun, 26th May 1994 :
The mother of the victim said.... "They aren't safe to walk the streets. We must not give them the chance to do it again."
- Sunday Mirror, 31st October 1999 [173-174]:
In an article titled "Society must be protected from this pair of monsters", Denise Bulger said "I will do everything in my power to keep them caged and I hope that Jack Straw will back me up. If they ever do get out I have sworn to go looking for them. When I find them they will wish they were dead. I will make sure they know what it is to really suffer...wherever they go mothers like me will be after their blood".
- Sunday Mirror 27th August 2000 
In an article titled "Throw away the key" - "...if Venables and Thompson returned to Liverpool "they would be lynched – and nobody would shed a tear. The pair of them should stay inside for the rest of their natural lives. They took a baby's life. So why should they be allowed a life of their own?".
- The Guardian 31 October 2000 
In an article titled "Bulger father vows to hunt killers" Ralph Bulger was reported as having said on GMTV "Something's got to be done about it. We can't just stop now, and let these two little animals get released...I will do all I can to try my best to hunt them down".
Dee Warner, of Mama [a victim's support group, Mothers Against Murder and Aggression] was also quoted "you could say you shouldn't take the law into your own hands but if the law worked for the victims rather than the criminals there wouldn't be these vigilantes attacks. I couldn't advocate anyone being murdered but I haven't had a child murdered so I am not in a position to say how I would feel".
- Daily Mail 2nd November 2000 
In an article titled "Bulger vigilantes are terrorising my family" it was reported that vigilantes had threatened to burn down the home of a woman they wrongly suspect is the mother of one of James Bulger's killers.
- The Mirror, Friday October 27 2000 
"When freed, they will have new identities to shield them from vigilante attacks"
- Daily Mail Friday October 27 2000 
"...like Mary Bell...they are likely to be constantly looking over their shoulders in fear they have been tracked down by vigilantes"
There has also been Press coverage of the family of each claimant, see for example:
- The People, 28 November 1993 
"Both the Bulger and Matthews families firmly believe the parents of Thompson and Venables should have been in the docks with their sons. "As far as we are concerned they are equally as evil and equally to blame. They should have been charged with murder along with those bastards."
"Ray said: "What really hurts us is that Thompson and Venables' parents have tried to make themselves out to be caring in the media. But no normal, loving, caring parent allows their children to play truant, shoplift, terrorise old ladies and kill animals. They were never there to look after them yet they must have known what arrogant, aggressive little bastards they are. If they didn't have any idea just what kind of parents are they?"."
- Daily Express 29 November 1993 
"Jamie Killer's runaway father hides in shame"
- Daily Mail Friday October 27 2000 
"Susan [Venables] had remarried but her second husband couldn't cope as their home was besieged by angry people wanting to hang her son".
In addition Mr Pike, to whom I refer below, in his statement at volume 2 page 310:
"some sections of the public and the media at the time of the trial and since have reacted strongly against the claimants, their crimes and their being released. It cannot be expected that such strong opinions will not be aired and indeed it would be a curtailment of the freedom of expression to prevent publication of such opinion."
Evidence relied upon by the claimants to show the likelihood of Press coverage if there were no injunctions:
- Sun 27th October 2000 
"Why we can't tell full story"
"Killers Robert Thompson and Jon Venables are protected from public scrutiny thanks to the ruling made after their trial in 1993.
"The judge, Mr Justice Morland, set out terms for a wide-ranging injunction banning the media from revealing any details about the boys' lives in secure units. It also prevented the press from approaching anyone involved in their rehabilitation, and outlawed photos taken of them after a certain date.
"At 18 the boys would normally lose the protection given to juveniles. But their lawyers want the High Court to extend the order for the rest of their lives.
"The Sun will fight this unprecedented application next month."
- News of the World, 29th October 2000 Editorial 
"...These two brutal killers must be kept in custody until they are CERTAIN not to re-offend.
"When this happens, it is proposed they be granted anonymity and the full protection of the State – so that it becomes an offence to report anything more about their lives.
"But the public has a right to know about them. This is yet another example of the law falling over itself to protect the guilty and ride roughshod over the feelings of their victims.
"It would also create a ridiculous precedent for all released criminals to demand that their privacy be protected. And that would be the final insult to the memory of poor, murdered James Bulger."
- The News of the World 'naming and shaming campaign' of paedophiles [208 ,Mr Marechal]
- Daily Mail, 27th October, 2000, (see above)
Press coverage of tariff set by Lord Chief Justice:
- Daily Mail, 27th October 2000 [677-683]:
"As freedom beckons for the murderers of James Bulger
Has justice betrayed the little boy who was never allowed to grow up?"
"The mother left with only tears".
"Before you judge what is written in these pages, you need to recall exactly what they did to little James"
"Sinister image: James is led away to his death."
"Now, a splendid new life beckons."
"They will enjoy full support from the welfare services."
- The Sun, October 27 2000 [685-689]:
"CRAZY James Bulger's killers tortured the two-year-old to death. Our top judge says they should go free early because jail would expose them to drugs and violence."
"James' mum: they have got away with MURDER."
"WE'LL NEVER FORGIVE THEM."
Evidence from the defendant Newspapers.
- For the July hearing, a statement was given on behalf of the News Group Newspapers, in particular The Sun and the News of the World, by Mr Crone, their legal Director. He said that the horrific murder, the litigation over the tariff for detention, the tariff decision, the fact and the process of their rehabilitation into the community were all matters of the most intense and legitimate public interest. Newspapers had had the duty to keep their readers informed and the readers had a concomitant right to be informed. The newspapers he represented wished to ensure that they could play their full part in any forthcoming debate on those matters.
- Mr Pike, solicitor for the defendants, made a statement in support of lifting all injunctions. He said that the circumstances surrounding the death of James Bulger were extraordinary, perhaps without parallel, largely as a result of the age of the claimants at the time combined with the brutal and horrific nature of the crime. He recognised that, such was the nature of the crime, there will always be the likelihood in the future that the Bulger case will be referred to when there is discussion of serious child crime. That would be legitimate and to be expected. He did not accept that the level of media interest was other than proper and legitimate. The rehabilitation process and the education of the claimants were matters of genuine public interest.
- He set out the position of the Press Complaints Commission Code and stated that it was an industry-wide standard included in contracts of employment entered in to by journalists. The Code was taken seriously by the Press. The Commission censured any paper guilty of breaching the Code and he gave the example of the complaint by Lord Spencer, see Earl Spencer v United Kingdom, (above).
- In respect of these claimants, there was no evidence of speculative improper journalistic activity in the future. Lifelong anonymity would give the claimants a level of protection as adults to which no other adult would be entitled. He pointed to recognition by Mr Dickinson that over the period the reporting had become more balanced. He did not accept that the breaches alleged had in fact occurred. Some of the information had been provided by either members of the family, or by the claimants' then solicitors. In any event, none of them had been published by the first or second defendants.
- He said that the defendants were alive to the public interest in securing the rehabilitation of convicted offenders and they had no desire to abuse their right to freedom of expression or to infringe any legitimate right of the claimants. However, the public had the right to information on the circumstances giving rise to the murder of the child, including the upbringing of the claimants; the appropriate period for them to serve in custody; the care and treatment of the boys whilst in custody - at considerable public expense - the extent of the risk of allowing them back into the community and the process of rehabilitation. His clients were most concerned that no precedent should be created whereby adult criminals, particularly those convicted of serious acts of violence, were given lifetime anonymity. He exhibited to his statement a selection of newspaper articles as examples of press coverage of matters of legitimate public interest.
- In R v Secretary of State for the Home Department, ex parte Venables; ex parte Thompson  AC 407 Hobhouse LJ said at paragraphs 103,104 and 107:
"The murder of James Bulger was a truly horrific crime...
Why this crime provoked an extreme public reaction can be easily understood. The crime itself threatened the security of all mothers of young children. The crime was exceptionally cruel. The crime offended against the assumptions made by most members of the public about the criminal capabilities of pre-adolescent boys. The killing itself attracted enormous publicity as did the ensuing trial and sentencing process...
The situation in which the Secretary of State and his advisers found themselves was wholly exceptional. A climate of opinion had been built up in which it was very difficult to make an adequate decision on what was required for retribution and deterrence. The situation had become overlaid by a range of public pressures which lost sight of the two defendants as immature individuals and got bound up with when, many years later, it might become publicly acceptable to release the murderers of James Bulger from custody on licence."
- Lord Goff of Chieveley set out, at page 475, the public concerns over the case. 4,400 letters were received; a petition signed by 278, 300 people seeking detention for life, several thousand other letters asking for detention for 25 years and a press campaign by The Sun with coupons responded to by over 20,000 people seeking detention for life. The Home Secretary had taken this information into account in setting the tariff. Lord Goff said at page 489:
"It is plain from his decision letters that the Secretary of State did indeed have regard, when he made his decision to fix the penal element in the applicants' sentences at 15 years, to the petitions and letters to which I have already referred.
"That there was public concern about this terrible case, there can be no doubt. Any humane person must have felt, not only the deepest sympathy for little James Bulger and his family, but horror that two boys as young as the two applicants should have perpetrated such a brutal crime. The Home Secretary hardly needed the media to inform him of this. But events such as this tend to provoke a desire for revenge, and call for the infliction of the severest punishment upon the perpetrators of the crime. This elemental feeling is perhaps natural, though in today's society there is a tendency for it to be whipped up and exploited by the media. When this happens it can degenerate into something less acceptable. Little credit can be given to favourable responses to a campaign that the two applicants should "rot in jail" for the rest of their lives...".
- Lord Browne-Wilkinson said, at page 491:
"The murder...was a cruel and sadistic crime. It is made even more horrific by the fact that the applicants were only 10 ½ years old at the time. It is not surprising that the case has given rise to much public concern and, indeed, outrage."
- Lord Steyn said at page 518:
"The inexpressible grief of the family of the murdered boy will never cease. The family, the local community and society generally are morally outraged."
- In V v United Kingdom, T v United Kingdom (1999) 30 EHRR 121, the European Commission in its opinion said, at page 131, paragraph 9:
"The trial was preceded and accompanied by massive national and international publicity. Throughout the criminal proceedings, the arrival of the defendants was greeted by a hostile crowd. On occasion, attempts were made to attack the vehicles bringing them to court."
And at page 133, paragraph 14:
"In his summing-up to the jury the trial judge noted that the witnesses had arrived in court in a blaze of publicity and many had faced a bevy of photographers."
- In the Recommendations of the Lord Chief Justice on the tariff on the 26th October 2000, the Lord Chief Justice said that the facts of the murder were exceptionally horrific:
"the crime had many aggravating features, including the age of the victim, the period over which the violence stretched and its degrading nature, and what was done with the body of the victim.
He (Morland J) considered that there was a very real risk of revenge attacks upon them from others. This risk is confirmed by the information before me."
- Conclusions on jurisdiction
- My conclusions on the application of the principles of English law to the facts of this case, are based on the assumption that the case put forward by the claimants has been established.
- 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.
- The starting point is, however, the well-recognised position of the Press, and their right and duty to be free to publish, even in circumstances described by Hoffman LJ in R v Central Independent TV (above). As Brooke LJ said in the Michael Douglas case (above) it is a powerful card to which I must pay appropriate respect. I am being asked to extend the domestic law of confidence to grant injunctions in this case. I am satisfied that I can only restrict the freedom of the media to publish if the need for those restrictions can be shown to fall within the exceptions set out in Article 10(2). In considering the limits to the law of confidence, and whether a remedy is available to the claimants within those limits, I must interpret narrowly those exceptions. In so doing and having regard to Articles 2, 3 and 8 it is important to have regard to the fact that, the rights under Articles 2 and 3 are not capable of derogation, and the consequences to the claimants if those rights were to be breached. It is clear that, on the basis that there is a real possibility that the claimants may be the objects of revenge attacks, the potential breaches of Articles 2, 3 and 8 have to be evaluated with great care.
- What is the information sought to be protected and how important is it to protect it? The single most important element of the information is the detection of the future identity of the claimants in the community. All the other matters sought to be protected for the present, and for the future, are bound up in the risk of identification, whether by photographs, or by descriptions of identifying features of their appearance as adults, and their new names, addresses and similar information. That risk is potentially extreme if it became known what they look like, and where they are. The risk might come from any quarter, strangers such as vigilante groups, as well as the parents, family and friends of the murdered child. In the present case, the public authority, the court, has knowledge of the risk to the claimants. Does the risk displace the right of the media to publish information about the claimants without any restriction imposed by the court?
- As I have set out, Article 10(2) recognises the express exception, "for preventing the disclosure of information received in confidence". Nonetheless, in order for it to be used to restrict freedom of expression, all the criteria in Article 10(2), narrowly interpreted, must be met. Taking each limb in turn –
In accordance with the law.
- I am satisfied that, taking into account the effect of the Convention on our law, the law of confidence can extend to cover the injunctions sought in this case and, therefore, the restrictions proposed are in accordance with the law. There is a well-established cause of action in the tort of breach of confidence in respect of which injunctions may be granted. The common law continues to evolve, as it has done for centuries, and it is being given considerable impetus to do so by the implementation of the Convention into our domestic law. I am encouraged in that view by the observations of Brooke LJ in the Michael Douglas case (above) at paragraph 61:
" It is well known that this court in Kaye v Robertson  FSR 62 said in uncompromising terms that there was no tort of privacy known to English law. In contrast, both academic commentary and extra-judicial commentary by judges over the last ten years have suggested from time to time that a development of the present frontiers of a breach of confidence action could fill the gap in English law which is filled by privacy law in other developed countries. This commentary was given a boost recently by the decision of the European Commission on Human Rights in Earl Spencer and Countess Spencer v the United Kingdom 25 EHRR 105, and by the coming into force of the Human Rights Act 1998."
Keene LJ said at paragraph 166
" ....breach of confidence is a developing area of the law, the boundaries of which are not immutable but may change to reflect changes in society, technology and business practice."
- The duty of confidence may arise in equity independently of a transaction or relationship between parties. In this case it would be a duty placed upon the media. A duty of confidence does already arise when confidential information comes to the knowledge of the media, in circumstances in which the media have notice of its confidentiality. An example is the medical reports of a private individual which are recognised as being confidential. Indeed it is so well-known that medical reports are confidential that Mr Desmond Browne submitted that it was not necessary to protect that information by an injunction. It is also recognised that it is just in all the circumstances that information known to be confidential should not be disclosed to others, in this case by publication in the Press, (see Lord Goff in AG v Guardian Newspapers (No 2) cited above). The issue is whether the information leading to disclosure of the claimants` identity and location comes within the confidentiality brackets. In answering that crucial question, I can properly rely upon the European case law and the duty on the court, where necessary, to take appropriate steps to safeguard the physical safety of the claimants, including the adoption of measures even in the sphere of relations of individuals and/or private organisations between themselves. Under the umbrella of confidentiality there will be information which may require a special quality of protection. In the present case the reason for advancing that special quality is that, if the information was published, the publication would be likely to lead to grave and possibly fatal consequences. In my judgment, the court does have the jurisdiction, in exceptional cases, to extend the protection of confidentiality of information, even to impose restrictions on the Press, where not to do so would be likely to lead to serious physical injury, or to the death, of the person seeking that confidentiality, and there is no other way to protect the applicants other than by seeking relief from the court.
Necessary in a democratic society to satisfy a strong and pressing need
- It is a very strong possibility, if not, indeed, a probability, that on the release of these two young men, there will be great efforts to find where they will be living and, if that information becomes public, they will be pursued. Among the pursuers may well be those intent on revenge. The requirement in the Convention that there can be no derogation from the rights under Articles 2 and 3 provides exceptional support for the strong and pressing social need that their confidentiality be protected.
Proportionate to the legitimate aim pursued
- Although injunctions have not been granted in such circumstances in the past, I am satisfied that, to protect information requiring a special quality of protection, injunctions can be granted. I gain support for that conclusion from the judgment of Lord Woolf in the Broadmoor case (above), and the fact that over the past 30 years or so the jurisdiction of the court to grant injunctions, where it has been demonstrated to be necessary and in accordance with general equitable principles, has been exercised. The provision of injunctions to achieve the object sought must be proportionate to the legitimate aim. In this case, it is to protect the claimants from serious and possibly irreparable harm, which would, in my judgment, clearly meet the requirement of proportionality. As I have already said above, there is a positive duty upon the court to take such steps as may be necessary to achieve that aim. In Osman (above), the European Court held that a breach of Articles 2 and 3 would be established if the authorities knew, or ought to have known, of the existence of a real and immediate risk to the life of an identified individual, from criminal acts of a third party, and they failed to take measures, within the scope of their powers, which might have been expected to avoid that risk. In that case, the authority was the police. In the present case, the authority is this court. I know of the existence of a real risk, which may become immediate if confidentiality is breached.
- Lord Woolf said in R v Lord Saville of Newdigate, ex parte A  1 WLR 1885 at page 1857:
"....when a fundamental right such as the right to life is involved, the options open to the reasonable decision-maker are curtailed. They are curtailed because it is unreasonable to reach a decision which contravenes or could contravene human rights unless there are sufficiently significant countervailing considerations. In other words it is not open to the decision-maker to risk interfering with fundamental rights in the absence of compelling justification..."
With that warning from Lord Woolf in mind, in my judgment, the appropriate measures to be taken, within the scope of my powers, would be to grant injunctions. This would have the effect of substantially reducing the risk to each of the claimants.
- I do not see that this extension of the law of confidence, by the grant of relief in the exceptional circumstances of this case, as opening a door to the granting of general restrictions on the media in cases where anonymity would be desirable. In my judgment, that is where the strict application of Article 10(2) bites. It will only be appropriate to grant injunctions to restrain the media where it can be convincingly demonstrated, within those exceptions, that it is strictly necessary.
- I am uncertain, for instance, whether it would be appropriate to grant injunctions to restrict the Press in this case if only Article 8 were likely to be breached. Serious though the breach of the claimants' right to respect for family life and privacy would be, once the journalists and photographers discovered either of them, and despite the likely serious adverse effect on the efforts to rehabilitate them into society, it might not be sufficient to meet the importance of the preservation of the freedom of expression in Article 10(1). It is not necessary, however, for me to come to a conclusion as to the weight of a breach of Article 8, since I am entirely satisfied that there is a real and serious risk to the rights of the claimants under Articles 2 and 3. Subject, therefore, to my assessment of the strength of the evidence presented to the court, and the possibility that some protection less than injunctions might be proportionate to the need for confidentiality, I find that, in principle, I have the jurisdiction to grant injunctions to protect the claimants in the present case.
- Conclusions as to future risk
- The test of future risk is not to be based upon a balance of probabilities. In Davis v Taylor  3 All ER 836, the House of Lords was considering the possibility of a future reconciliation between the deceased and his estranged wife in a fatal accident claim by her. They held that the issue was not whether it was more probable than not that there would have been a reconciliation, but whether there was a reasonable probability or expectation, rather than a mere speculative possibility, of a reconciliation. There could be a reasonable expectation that something would come about even though the chance of it coming about was less than even.
- In re H and R (Child Sexual Abuse) ]1996] 1 FLR 80, the House of Lords considered the words 'likely to suffer significant harm' in section 31 of the Children Act 1989. At page 95 Lord Nicholls of Birkenhead rejected the submission of counsel that likely in that context meant probable. He said:
"In this context Parliament cannot have been using likely in the sense of more likely than not. If the word likely were given this meaning, it would have the effect of leaving outside the scope of care and supervision orders cases where the court is satisfied there is a real possibility of significant harm to the child in the future but that possibility falls short of being more likely than not...
"What is in issue is the prospect, or risk, of the child suffering significant harm...
"In my view therefore, the context shows that in section 31(2)(a) likely is being used in the sense of a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case."
- The decisions in Davis v Taylor and in re H and R, although each made on facts far removed from the present, are in my view a helpful guide to the assessment I have to carry out in this case. Since the relief sought is to restrict the freedom of expression of the Press, I approach the assessment of future risk to each of the claimants on the basis that the evidence supporting the case has to demonstrate convincingly the seriousness of the risk, but in order to assess the future, I cannot by the very nature of the task, have concrete facts upon which to rely, nor can I predict upon the basis of future probability.
- The evidence, which I have set out above, demonstrates to me the huge and intense media interest in this case, to an almost unparalleled extent, not only over the time of the murder, during the trial and subsequent litigation, but also that media attention remains intense seven years later. Not only is the media interest intense, it also demonstrates continued hostility towards the claimants. I am satisfied from the extracts from the newspapers:
- that the Press have accurately reported the horror, moral outrage and indignation still felt by many members of the public.
- that there are members of the public, other than the family of the murdered boy, who continue to feel such hatred and revulsion at the shocking crime and a desire for revenge that some at least of them might well engage in vigilante or revenge attacks if they knew where either claimant was living and could identify him. There also remains a serious risk from the Bulger family, and the father was quoted as recently as October 2000 saying that upon their release he would "hunt the boys down".
- that some sections of the Press support this feeling of revulsion and hatred to the degree of encouraging the public to deny anonymity to the claimants. The inevitable conclusion to which I am driven, in particular, by the editorial from the News of the World, (one of the newspapers in the defendant group), is that sections of the Press would support, and might even initiate, efforts to find the claimants and to expose their identity and their addresses in their newspapers. I have in mind, for example, the coupon campaign run by the Sun, demanding that the boys remain in detention for life and the recent News of the World campaign 'naming and shaming' paedophiles. The response of some members of the public to emotive newspaper reporting has created highly emotional and potentially dangerous situations. The misidentification of a female member of the public, thought erroneously to be the mother of one of the claimants, was potentially very dangerous and demonstrates the probable reaction of members of the public to the knowledge that one of the claimants and his family were living nearby. I also bear in mind that the media coverage has been international as well as national. The information might be gathered from elsewhere and presented to an English national or local newspaper. Once in the public domain, it is a real possibility, almost a probability, that there would be widespread reporting by the Press. If photographs are taken, and they would be likely to be taken, the claimants would find it difficult to settle anywhere safely, at least within the United Kingdom. It would, however, be fair to point out that there have also been, particularly recently, thoughtful and objective articles in the newspapers, and a reasoned debate over the correct period of detention for child offenders who commit appalling murders.
The evidence provided by the Secretary of State supported and affirmed much of the reporting in the Press. It is most significant that this is only the second time ever that the Home Office has thought it necessary to provide a new identity for child murderers when they leave detention, the other being Mary Bell in 1980. This is a clear indication of the seriousness with which the authorities view the possibility that either claimant may be recognised with the consequences that they fear.
The Attorney General and the Official Solicitor both submitted that there is a high risk of serious physical harm and the real possibility that a claimant might be killed if identified. Morland J and Pill LJ felt it necessary to grant injunctions to protect the children during their detention in secure accommodation. In 1993 Morland J considered that there was a very real risk of revenge attacks upon them from others. The Lord Chief Justice in his statement on the tariff in October 2000 confirmed, from the information presented to him on the tariff, that that remained the situation. I heard evidence, in chambers, which supported the conclusion to which the Lord Chief Justice came, that there are solid grounds for concern that, if their identities were revealed on release, there might well be an attack or attacks on the claimants, and that such an attack or attacks might well be murderous.
At the moment, the claimants are not at risk. First, the injunctions are still in force. Second, there is no current photograph of either claimant, or any current description of the appearance of either in the public domain. The photographs that are available were taken when they were children and they are now adults. When they are released from detention with new names, so long as they are not identified, they will be living in the community, under life-long supervision, but with the opportunity for rehabilitation and reintegration.
I consider it is a real possibility that someone, journalist or other, will, almost certainly, seek them out, and if they are found, as they may well be found, the media would, in the absence of injunctions, be likely to reveal that information in the newspapers and on television, radio, etc. If the identities of the claimants were revealed, journalists and photographers would be likely to descend upon them in droves, foreign as well as national and local, and there would be widespread dissemination of the new names, addresses and appearance of the claimants. From all the evidence provided to me, I have come to the clear conclusion that if the new identity of these claimants became public knowledge it would have disastrous consequences for the claimants, not only from intrusion and harassment but, far more important, the real possibility of serious physical harm and possible death from vengeful members of the public or from the Bulger family. If their new identities were discovered, I am satisfied that neither of them would have any chance of a normal life and that there is a real and strong possibility that their lives would be at risk.
The claimants seek injunctions effectively for the rest of their lives. Is the grant of injunctions proportionate to the risk which I have identified? Mr Desmond Browne argued that the editors of the newspapers that he represented could be trusted not to reveal information that would lead to the identity of the claimants. Editorial judgment should be respected and trusted. That brings in the question whether it is necessary, in order to achieve anonymity, to require injunctions. Although I recognise that editors do exercise judgment and restraint in some of the stories they run, I do not consider that editorial restraint can be the answer here. I am prepared to believe that editors of some newspapers might well hesitate to reveal this information. I do not see how editorial judgment would be able to restrain all the newspapers, particularly those now calling for that information to be made available. I also find it difficult to accept the case of the newspapers that they should be trusted not to publish when, at the same time, their counsel submitted that it was wrong for the claimants to have the advantages of anonymity and to be allowed to live a lie. No offer has been made to the court not to publish. On the contrary, I am satisfied from the editorial in the News of the World (29th October 2000), that one newspaper at least would wish to publish information about identity or address if that information became available to them. Once one paper gives the information, all the papers will obviously be likely also to publish all the information they can obtain which remains live news. The judgment of editors cannot be an adequate protection to meet the risk I have identified.
The Press Code, as applied by the Press Complaints Commission, is not, in the exceptional situation of the claimants, sufficient protection. Criticism of, or indeed sanctions imposed upon, the offending newspaper after the information is published would, in the circumstances of this case, be too late. The information would be in the public domain and the damage would be done. The Press Code cannot adequately protect in advance. The risk is too great for the court to rely upon the voluntary Press Code. To do so would not be a sufficient response to the principles enunciated in the Osman case. I do not consider that the provisions of the Protection against Harassment Act 1997 would or could be adequate to protect the claimants if their identities became known. Recourse to the courts after the event would be too late - for example because they would have by then, almost certainly, been photographed, and would then be recognised everywhere.
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.
- The Scope of the Injunctions
Orders Contra Mundum
- The submission of the defendants was, that even if there was jurisdiction to grant injunctions against them in this case, there was no jurisdiction to grant those injunctions against the world at large. The general principle was stated by Lord Eldon in Iveson v Harris (above), "you cannot have an injunction except against a party to the suit". The injunctive relief granted by Balcombe J in X County Council v A  1 All ER 53 (the Mary Bell case), was based on the exercise of the court's jurisdiction in wardship. Balcombe J said at page 55, in relation to the power to grant an injunction contra mundum:
"Let me say at once that, if it were not an exercise of the wardship jurisdiction, I am satisfied that there would be no such power."
He held that not only would it not be fair to injunct one newspaper from publishing information which could identify the ward by her relationship to the mother, Mary Bell, but that the harm to the ward, which prohibition of publication is intended to prevent, would also be caused by publication in any other newspaper or medium. He referred to Z Ltd v A  1 All ER 556), in which the Court of Appeal held that Mareva injunctions operated against the world at large, or at least against those members of the public who have notice of the existence of the order. He was satisfied that:
"If the court can protect proprietary interests in that way, as it clearly can, how much more should it be able to protect the interests of its wards if it is satisfied in a proper case that the interests of its wards require protection in this form?".
- In the present case I have come to the conclusion that I am compelled to grant injunctive relief for the protection of the claimants in respect of a special category of confidential information. For that information to be revealed by a newspaper or television programme, not a party to these proceedings, would have an equally devastating effect as disclosure by one of the defendant groups. It would cause equal harm. It would also, as Balcombe J recognised in X County Council v A, be most unjust to the defendants if they were the only newspaper groups to be so restricted. The granting of the injunctions would not, however, have that limited effect. Mr Desmond Brown submitted that, since the decision of the House of Lords in A-G v Times Newspapers  1 AC 191, publication of the injunctions against the newspapers would, in practice, act in a similar way, and have the same effect, as injunctions against the media generally. He argued that it was not, therefore, necessary for the injunctions to be made against the world at large. It seems to me that to accept that position would be to achieve through the back door, that which it is submitted I cannot do through the front. I agree with Mr Caldecott that this is somewhat of an academic exercise. There is a positive duty on the court as a public authority to take steps to protect individuals from the criminal acts of others, see Osman (above).
- Although the dictum of Lord Eldon has been generally followed for nearly 200 years, in light of the implementation of the Human Rights Act, we are entering a new era, and the requirement that the courts act in a way that is compatible with the Convention, and have regard to European jurisprudence, adds a new dimension to those principles. I am satisfied that the injunctive relief that I grant should, in this case, be granted openly against the world.
Protection of information during period February1993 to August 2000
- I have selected those two dates since they represent the period covered by the previous injunctions, on the 18th birthdays of each claimant. The extent to which there were breaches of those injunctions, and the contributions of the families of the boys and their legal advisers to the alleged breaches, was in dispute.
- I formed the view, in July, that there had been a few breaches of the order, not many. With the greater opportunity I have had to hear evidence at the full hearing, I have not come to a different conclusion. I do not consider that it is necessary for me to study each example and adjudicate upon it. Some cannot be resolved on the written evidence. I was, for instance, asked to decide whether a photograph of one of the boys was taken before or after he was placed in secure accommodation. I do not propose to do so since, with a child of eleven or twelve whom I have never seen, it would be a stab in the dark, and not a serious evaluation. I do not consider that these breaches are significant, nor that they should affect my decision whether or not to grant injunctions in the future.
- The significant fact is that the injunctions were in place, and the media were well aware of their existence. Under this heading I have to consider the impact of the removal of the injunctions over the period of the claimants' detention in secure accommodation. There is not, and there cannot be, a bar to information about them before they were arrested. There is no privilege in childhood. Once the injunctions come to an end, in general there cannot be, in my view, continuing protection of the information that was protected during the life of the injunctions. There may be an exception to that general principle in wardship proceedings, with which I am not now concerned in the present case. Children, like adults, are entitled to confidentiality in respect of certain areas of information. Medical records are the obvious example. In the present case, the information sought to be protected falls broadly into four categories –
- Medical and health information
- Information from social workers and other carers
- Information from co-detainees
2. D. Identification of the Secure Units
3. I shall consider each in turn.
(i) Health information.
4. All information about the claimants, whether during their detention or at any other time, whether by records or otherwise, which relates to their medical, psychological, or therapeutic care is, in principle, confidential. That confidentiality would, in my view, extend to art, or any other form of therapy, and to all those taking part in group therapy, and not only the therapist. As I understood it, all Counsel agreed with this proposition, see Hunter v Mann  QB 767 at page 772, W v Edgell  Ch 359.
(ii) Information from social workers and carers
In re G (A Minor)(Social Worker:Disclosure)  2 All ER 65 I said at page 68
"The information obtained by social workers in the course of their duties is, however, confidential, and covered by the umbrella of public interest immunity." (see also re W (Minors) (Social Worker:Disclosure)  2 FLR 135.)
I referred in re G (above) to a long line of authority that social services department case records were not to be produced on discovery nor disclosed in court proceedings unless a judge ruled to the contrary, see for instance D v NSPCC  AC 171. I referred also to local authority circulars on confidentiality of personal information held by local authorities. Each secure unit is managed by a local authority. The confidentiality extends to all those having the care of the two claimants in the secure units. Mr Fitzgerald accepted that there was a legitimate public interest in the general information about the regime to which each of the claimants have been subjected. He continued, however, to seek a ban on the publication of historical information during the period covered by the injunctions granted by Morland J, because it pertained to information previously covered by injunctions.
(iii) Information from co-detainees
5. In my judgment, there is no basis upon which an injunction can in general be granted to prevent a co-detainee from approaching or being approached by a member of the Press and speaking about either claimant, save insofar as any revelation was likely to reveal their present appearance or whereabouts or disclose plainly confidential matters. The co-detainee would not, for example, be entitled to provide, and the newspaper cannot publish, information, which is confidential, such as attending therapy sessions together.
(iv) Identification of the Secure Units
6. I can see, however, the necessity for providing a period after the release of the claimants during which no information should be made public which might lead to the identification of the units where they have been detained, since that may lead to the identification of their future whereabouts. Such an injunction would be designed to protect the future, and not the past, and it should not be necessary to impose it for more than a limited period. I am not at present certain how long it should be. I incline towards 12 months, but this is a matter upon which it would be helpful to hear further submissions. I should like the help of counsel. As I have already indicated, I should also like the assistance of Counsel on the actual wording of the injunctions and the order.
The information to be protected
- In my judgment, there are compelling reasons to grant injunctions to protect, in the broadest terms, the following information:
- Any information leading to the identity, or future whereabouts, of each claimant, which includes photographs, description of present appearance and so on.
- In order to protect the claimants on their release from detention, it is necessary to have injunctions to protect their present whereabouts, any information about their present appearance and similar information. That protection must include any efforts by the media to solicit information from past or present carers, staff or co-detainees at their secure units until the Claimants' release from detention.
- In order further to protect their future identity and whereabouts, no information may be made public or solicited from their secure units that might lead to the identification of the units for a reasonable period after their release. It would seem to me that twelve months from the date of the release of each claimant would be a sufficient period to protect that information, subject to any further argument from counsel.
- It is not necessary, in my judgment, to protect other information relating to their period in the secure units when they were under eighteen for two reasons. Firstly, the important information, from the medical/ health professionals, including therapists and from social workers and other carers and from co-detainees who shared the confidential situations is already covered by confidentiality. Secondly, the other information is not covered by the necessity/imperative to keep it out of the public domain and their time in their secure units is not of itself confidential. There is much, after the twelve month embargo on information, that would be appropriately made public, such as the regime in the units.
- I recognise the concerns, however, of the claimants as to what is and what is not confidential in the past information. I would be prepared therefore to set out, if requested, a preamble to my order on the information setting out the categories of information which are confidential.
- I am, of course, aware that injunctions may not be fully effective to protect the claimants from acts committed outside England and Wales resulting information about them being placed on the Internet. The injunctions can, however, prevent wider circulation of that information through the newspapers or television and radio. To that end, therefore, I would be disposed to add, in relation to information in the public domain, a further proviso, suitably limited, which would protect the special quality of the new identity, appearance and addresses of the claimants or information leading to that identification, even after that information had entered the public domain to the extent that it had been published on the internet or elsewhere such as outside the UK.
I am also aware that the Parole Board will soon be making enquiries and compiling a report for consideration at the Parole Board hearing. It is, in my view, essential that the nature of the enquiries, the content of the report and the hearing itself must be covered by the injunctions.
Other grounds relied on to establish jurisdiction
- Mr Fitzgerald advanced submissions based on other grounds for the court to assume jurisdiction to grant injunctions.
A. Protection of the statutory right to rehabilitation
- In Broadmoor Health Authority v R  All ER 726, the Court of Appeal held that the court had jurisdiction, in suitable circumstances, to grant an injunction to a public body with a statutory responsibility in order to prevent interference with the performance of its public responsibilities and, by a majority, that it could make such an order on the application of the hospital authority. They did not, in fact, grant an injunction in that case. Waller LJ said at paragraph 55 of his judgment at page 740:
"On the important question of the authority's powers and the circumstances in which it can seek the aid of the court, I respectfully agree with Lord Woolf MR and would adopt his ultimate formulation which is in these terms:
If a public body is given statutory responsibility which it is required to perform in the public interest, then, in the absence of an implication to the contrary in the statute, it has standing to apply to the court for an injunction to prevent interference with its performance of its public responsibilities and the court should grant such an application when "it appears to the court to be just and convenient to do so."
- Mr Fitzgerald advanced the argument that, in circumstances where the public reponsibilities of a public authority were, or were likely to be, interfered with and that public authority refused or failed to take proceedings to obtain an injunction, the beneficiary of those responsibilities had standing to make the application himself. Applied to the present case, if the Home Office or the local authority in charge of the secure unit would not be able properly to carry out at present or in the future the duty to rehabilitate the claimants and to reintegrate them into society because of the actions of the Press, then the claimants could bring the proceedings themselves to protect the benefit to them of that rehabilitation.
- He pointed to the evidence from the Secretary of State about the serious concerns of the secure units and, in particular, of the supervising probation officers, that rehabilitation would be seriously imperilled by disclosure of their appearance and whereabouts, particularly after release. He relied upon the submission of Mr Caldecott, on behalf of the Attorney General; first, that the Home Office or those responsible for the proper care and treatment of the claimants did owe specific duties directed at ensuring the rehabilitation of the claimants and their reintegration into society, both while in their secure units and on their release, during their life long supervision; second, as I set out earlier, that the information about identification would be likely to render any meaningful reintegration into society unworkable.
- Mr Caldecott did not, however, support the granting of an injunction on this ground on the application of the claimants. I agree that the Home Office and, during detention, the local authorities, charged with the care of the claimants have duties which include welfare and rehabilitation, see for instance Lord Browne-Wilkinson at pages 499-500 and Lord Hope at page 530 in ex parte Venables (above). I recognise that, if a public authority were unable to carry out its public functions, which were and were intended to be in the interests of the recipients, such interference might be very unjust to the recipients. It does, however, seem to me to be a considerable extension of the, so far, untested remedy approved by the Master of the Rolls and Waller LJ. I have considerable reservations about the basis for granting such an injunction, one problem being its potential ambit width which would be likely, in the present case, to be extended far too widely. In the present case, it is not necessary for me to travel that further distance and I do not propose to do so.
Inherent jurisdiction to grant injunctions to prevent crime and to protect the administration of justice or free-standing claim based upon Convention rights.
- Mr Fitzgerald raised further arguments under this heading. He submitted that the court had an inherent jurisdiction to prevent criminal reprisals, which arose from the broad inherent jurisdiction to protect the administration of justice. I hope he will forgive me if I do not set them out, since it is not necessary to do so. I have already expressed the conclusion that in private law cases, although the court must apply the Convention principles to existing causes of action, it cannot hear free-standing applications based directly on the Articles of the Convention.
7. In my judgment, this case stands or falls on the application to it of the law of confidence.
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