[View without highlighting]
[Printable RTF version]
THE HONOURABLE MR JUSTICE KEEHAN
The judge gives leave for this judgment to be reported in this anonymised form. Pseudonyms have been used for the young person involved in this matter and her mother.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them and the respondents identified by name in the judgment may be identified by his or her true name or actual location and that in particular the anonymity of the young person and the members of her family must be strictly preserved.
||Neutral Citation Number:  EWHC 4247 (Fam)
||Case No: BM14P09068
IN THE HIGH COURT OF JUSTICE
||Royal Courts of Justice
Strand, London, WC2A 2LL
||15 December 2014
B e f o r e :
THE HONOURABLE MR JUSTICE KEEHAN
|| BIRMINGHAM CITY COUNCIL
||- and -
||(1) SARFRAZ RIAZ
(2) MOHAMMED JAVED
(3) NAZEEM KHAN
(4) SHAH ALAM
(5) MANSUR AHMED
(6) RAHMAN AZIZ
(7) IMRAN UDDIN
(8) OMAR AHMED
(9) MOHAMMED ANJAM
(10) SAJID HUSSAIN
(11) WEST MIDLANDS POLICE
Lorna Meyer QC, Stefano Nuvuloni and Heather Popley (instructed by Birmingham City Council) for the Applicant
David Kelly (17 November 2014 hearing) (instructed by Ahmed Williams) for the 8th Respondent
Juliet Allen (19 November 2014 hearing) (pro bono) for the 8th Respondent
Joanna Chadwick (17 November 2014 hearing) (instructed by Duncan Lewis) for the 9th Respondent
Juliet Allen (19 November 2014 hearing) (instructed by Duncan Lewis) for the 9th Respondent
Sarah Simcock (19 November 2014 hearing) (instructed by Joint Legal Services, Birmingham )for the 11th Respondent
Poonam Bhari (19 November 2014 hearing onwards) (instructed by Greens) for the 12th Respondent
Hearing dates: 13, 17, 22, 27 October 2014
17, 19, 20, 27 November 2014
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Keehan :
- In this matter I am concerned with a vulnerable young person, AB, who is 17 years old. It is asserted by the local authority, Birmingham City Council, that she is the victim of Child Sexual Exploitation ('CSE') by, at least, ten much older men.
- For a considerable period of time, AB did not consider herself to be a victim of CSE. It is, sadly, so common for victims of CSE not to recognise or accept that they are victims. All too often they have suffered abusive and neglected childhoods and are attracted to and flattered by the men who seek them out. They are seduced by the attention given to them whether by way of compliments, gifts, drugs or alcohol.
- The worrying and widespread prevalence of CSE is referred to in a number of recent reports including the Independent Inquiry into CSE in Rotherham 1997-2013, the Report of the Parliamentary Inquiry into the Effectiveness of Legislation for Tackling CSE and Trafficking within the UK, Barnado's 2014, the Office of the Children's Commissioner's Inquiry into CSE in Gangs and Groups Final Report, November 2013, the House of Commons Home Affairs Select Committee in Child Sexual Exploitation and the Response to Localised Grooming Second Report published on 10 June 2013 and the report of Ann Coffey MP "Child sexual exploitation in Greater Manchester" from October 2014.
Applications and Orders Sought
- The local authority responded to the sexual exploitation of AB in the usual way of seeking a secure accommodation order. The intention was to restrict her liberty, to prevent her from associating with men who sought to abuse and exploit her, to keep her in a place of safety and to support her in coming to an understanding of the risks of harm these men posed to her.
- Initially AB opposed the making of a secure accommodation order. When the matter came before me for hearing on 17 October 2014 she, with the benefit of legal advice, consented to the court making the order.
- The West Midlands Police have worked in close co-operation with the local authority. The police came to the conclusion that there was insufficient evidence at that time to secure criminal convictions against the ten individuals before this court in relation to their association with and/or conduct towards AB.
- Accordingly the local authority decided to take a bold and novel step, namely, to apply for civil injunctions under the inherent jurisdiction of the High Court. The injunctive orders sought to prevent any further contact or association with AB or with any female under the age of 18 years, previously unknown to them, in a public place.
- The injunctive orders sought were drafted with reference to a number of recent legislative provisions which sought to prevent antisocial or sexually harmful conduct, namely the Crime and Disorder Act 1998 (antisocial behaviour orders) and the Sexual Offences Act 2003 (sexual offences prevention orders and risk of sexual harm orders).
- The final version of the substance of the injunctive orders sought against each of the ten respondents is as follows:
IT IS ORDERED THAT:
1. From the time this order is served upon X until the date specified in this order X Must Not:
a. contact AB by any means, in person and or through any third person whether by way of face to face contact, telephone (mobile/landline/facetime/skype etc.), text messages, MSM, blackberry, chatrooms, or other social media whether or not such contact is invited in the first instance by AB
b. seek the company or be in the company of AB whether or not invited to do so in the first instance by AB
c. approach AB in any manner, whether in public, on the street or other public areas such as parks, in private addresses open to certain members of the public such as any food outlet, retail outlet, café, public house, bar, hotel, club, nightclub etc, on public transport, in or at any premises associated with a sporting or entertainment activity or in any private residence, whether or not invited to do so in the first instance by AB
d. follow AB in any location public or private
e. approach any female, under the age of 18 years, not previously associated with him on a public highway, common land, wasteland, parkland, playing field, public transport stop/station.
f. pass on details for AB for example name, location, address, telephone numbers at which she can be reached or the names of other persons through whom she can be contacted save as directed by the police or order of the Court.
g. incite, encourage or facilitate the introduction of AB to any other male.
h. incite or encourage any other male to seek any form of contact with AB
i. cause, permit or allow AB or other female previously unknown to him and who may be under the age of 18 years to enter into or remain in any private motor car or taxi in which he is driving or travelling as a passenger.
And is bound by such order until 18th August 2015.
2. From the time this order is served upon X until the date specified in this order X shall immediately report any contact, or attempt at contact by AB, or any person contacting or attempting to contact them on her behalf to either (or both)
a. The West Midlands Police on 101 'Force Control'
b. Birmingham City Council, Social Services Emergency duty team on 0121 675 4806
And is bound by such order until 18th August 2015.
3. From the time this order is served upon X until the date specified in this order X shall immediately report any contact with him by any person seeking information about AB or passing on information about her and to provide the name and contact details of the person to either (or both)
a. The West Midlands Police on 101 'force control'
b. Birmingham City Council, Social Services Emergency Duty Team on 0121 675 4806
And is bound by such order until 18th August 2015.
4. From the time this order is served upon X until the date specified in this order X Must Not:
a. Contact or attempt to contact, approach or attempt to approach AB's mother XY.
And is bound by such order until 18th August 2015.
- I was satisfied on reading the papers and after hearing submissions, that in all the circumstances of these applications, it was appropriate for me to grant the local authority permission to apply to the court for orders in the exercise of the inherent jurisdiction of the High Court pursuant to s100(3) Children Act 1989.
- The applications for injunctive orders first came before the court on 10 October 2014. HHJ Hindley QC heard the application for without notice interim orders in private and directed the matter be listed before me at 2pm 13 October.
- I heard the applications on 13 October in private. SAJID Hussain appeared in person and did not wish to seek legal representation. On 7 October 2014 police officers were looking for AB who had absconded from her residential unit. At 3am police officers approached a car. On seeing the police the occupants got out of the car and attempted to make off including, I am satisfied, AB and SAJID Hussain. The police spoke to them. Sajid Hussain admitted he was the owner of the car, AB was intoxicated and a bottle of brandy was found in the car.
- He did not seek to challenge the local authority's case against him and, accordingly, a final order was made against him on the basis that I accepted the written evidence presented to me.
- Imran Uddin attended the court on 13 October but, knowing that his case had not yet been called on, he left the court building and did not return. The events concerning Imran Uddin are set out in paragraphs 97 to 106 below. Being satisfied on the written evidence presented that he was engaged in the grooming of AB for the purposes of CSE, I made final orders against him.
- On 13 October Mohammed Javed did not oppose the making of injunctive orders against him. He did not wish to seek legal advice nor to be legally represented. The events concerning Mohammed Javed are set out in paragraphs 78 to 88 below. Thus being satisfied on the written evidence that he was engaged in the CSE of AB I made final injunctive orders against him.
- The other respondents either opposed the making of orders against them or failed to appear or were serving prisoners who had not been produced at court or had not been served with the application.
- The matter came before me again on 22 October when I gave directions for the hearing of the contested applications and made further interim orders.
- At that hearing I expressed the view that the case raised such matters of general public importance that the applications should henceforward be held in public. Thus the hearing on 22 October and all subsequent hearings were held in public. In order to protect the identity of AB and of each of the ten respondents, at a hearing on 27 October, I made interim Reporting Restrictions Orders ('RRO'). In respect of the latter they were intended to remain in force at least until final decisions had been made as to whether:
a) I would grant final orders against any of the remaining seven respondents; and
b) it would be appropriate to name one or more of the respondents in this judgment.
- In respect of three respondents against whom final orders had been made on 13 October, namely Sajid Hussain, Imran Uddin and Mohammed Javed, the local authority served them with notices advising them that the court was minded to name each of them in the judgment. Only Mohammed Javed availed himself of the opportunity to make submissions as to why he should not be named in this judgment.
- On 17 November I heard the contested application for injunctions against Omar Ahmed and Mohammed Anjam.
- On 19 November I received submissions on the issue of whether, if I made injunctions against any respondent, he should or should not be named in this judgment and whether the interim reporting restriction orders should be continued.
- At that hearing I heard submissions from Mr Dodd on behalf of the Press Association, The Times, and the BBC and from counsel instructed on behalf of the Chief Constable of West Midlands Police. No party nor Mr Dodd took issue with the continuation of the RRO in respect of and to protect the identity of AB.
- Further on 19 November I heard the contested application in respect of Naseem Khan and Alam Shah.
- On 20 November I heard separately the contested applications in respect of Sarfraz Riaz and Aziz Rahman.
- On 27 November I heard the application for an injunction against Mansur Ahmed. I was satisfied he had been served with the application and with notice of the hearing. He failed, however, to attend the hearing and I proceeded to determine the application in his absence.
- It is unnecessary and, in my view, inappropriate in this judgment to set out the detail of AB's life history at length. Suffice to say she had a difficult childhood and had an unhappy relationship with her mother. In her early to late teenage years a number of referrals were made to the local authority by AB's mother stating that AB was beyond her control or otherwise seeking support in caring for her. AB was frequently absconding from home.
- After having gone missing for six days, on 2 April 2011, AB aged 13, was made the subject of a police protection order and she was placed in a residential unit. She continued to abscond.
- During this time AB placed herself in situations of grave risk and made an allegation of serious sexual assault against an Asian male taxi driver.
- On 11 July 2011 AB was once again located by the police and made the subject of a police protection order. On 16 July she was accommodated by the local authority under s20 Children Act 1989 and placed in a residential unit. She continued to abscond staying away from the unit overnight on a regular basis. She was reported to be seen getting in and out of cars in the company of adult Asian males.
- On 4 September 2011 AB returned to the unit in the early hours of the morning. She appeared intoxicated and admitted to drinking half a bottle of vodka and smoking cannabis. She was taken to hospital by ambulance from where she absconded but later returned.
- On 4 September 2011 a sexual exploitation strategy meeting was held which concluded that AB was at risk of significant harm. Police intelligence reported AB was performing sexual acts in exchange for cigarettes and cannabis and had been seen on videos performing sexual acts on adult Asian males and using cocaine.
- As a result of these growing serious concerns about AB's welfare she was made the subject of a secure accommodation order on 13.10.11 and placed at a unit in South Wales. This order was renewed until 11 April 2012 when AB was placed in a residential unit in the Midlands.
- Within weeks AB began absconding again and was known to be associating with adult Asian males. On 8 May 2012 and against the advice of the local authority, AB's mother discharged her from the care of the local authority.
- Over the next eleven months AB continued to abscond from home and was regularly seen or found in the company of adult Asian males. On 21 December 2012 AB was accommodated by the local authority pursuant to s20 Children Act 1989. In May 2013 upon AB's mother telling the local authority that she would withdraw her consent to AB being accommodated, AB was made the subject of an interim care order and was placed in a residential unit. She continued to abscond. She was once again regularly seen or found in the company of adult Asian males.
- On 20 September 2013 AB was made the subject of a secure accommodation order and placed at a secure unit in Merseyside. On 1 October the court made a care order in respect of AB and on 15 November the secure accommodation order was extended to 15 May 2014.
- In December 2013 AB told the police that she had been sexually exploited in 2011 and underwent an ABE interview. At a professionals meeting at the secure unit where AB was now residing it was agreed that an extension to the secure accommodation order would not be sought, not because AB had engaged with the staff in any meaningful way, but because it was felt there was little more they could do for her. In the light of the subsequent events, this was an unfortunate and, in my judgment, regrettable decision.
- On 15 May 2014 AB moved from the secure unit to a residential unit. She absconded on a regular basis for days at a time. She moved to a supported accommodation placement on 29 July. Unfortunately that produced no beneficial change in AB's behaviour. The degree to which she absconded and was found in the company of adult Asian males greatly increased and included many of the episodes which are the subject of these applications.
- As a result of that history I made AB the subject of a secure accommodation order on 17 October 2014.
- AB was represented by counsel at the contested injunction hearings on 19 November and at all subsequent hearings.
Law: Burden and Standard
- I remind myself when considering each of the applications, that the burden of proving that each of the respondents was engaging in the child sexual exploitation of AB rests solely upon the local authority.
- The standard of proof to be applied in these civil proceedings is the simple balance of probabilities as defined by the Supreme Court in Re B  UKSC 33.
- The inherent jurisdiction of the High Court "may be invoked in an apparently inexhaustible variety of circumstances and may be exercised in different ways. This peculiar concept is indeed so amorphous and ubiquitous and so pervasive in its operation that it seems to defy challenge to determine its quality and establish its limits" Jacob, The Inherent Jurisdiction of the Court (1970) Current Legal Problems 23.
- The use of the inherent jurisdiction has been substantially curtailed by the provisions of s100 Children Act 1989. A local authority may not apply for any exercise of the court's inherent jurisdiction with respect to children without the leave of the court: s100 (3) Children Act 1989.
- The Family Procedure Rules 2010, PD12D paragraphs 1.1 and 1.2 provide as follows:
1.1 It is the duty of the court under its inherent jurisdiction to ensure that a child who is the subject of proceedings is protected and properly taken care of. The court may in exercising its inherent jurisdiction make any order or determine any issue in respect of a child unless limited by case law or statue. Such proceedings should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989.
1.2 The court may under its inherent jurisdiction, in addition to all of the orders which can be made in family proceedings, make a wide range of injunctions for the child's protection of which the following are the most common: -
a) orders to restrain publicity;
b) orders to prevent an undesirable association;
c) orders relating to medical treatment;
d) orders to protect abducted children, or children where the case has another substantial foreign element; and
e) orders for the return of children to and from another state.
- In R. v Central Independent Television Plc  Fam 192, at 207-208 Waite LJ said:
"the prerogative jurisdiction has shown striking versatility throughout its long history in adapting its powers to the protective needs of children, encompassing all kinds of different situations. Although the jurisdiction is theoretically boundless, the courts have, nevertheless, found it necessary to set self imposed limits upon its exercise, for the sake of clarity and consistency and of avoiding conflict between child welfare and other public advantages".
- I am of the firm view that the use of the inherent jurisdiction to make injunctive orders to prevent CSE strikes at the heart of the parens patriae jurisdiction of the High Court. I am satisfied that none of the statutory or the "self imposed limits" on the exercise of the jurisdiction prevent the court from making the orders sought by the local authority in this case.
Law: Reporting Restriction Order
- On the facts of this case Articles 8 and 10 of the European Convention on Human Rights and Fundamental Freedoms 1950 are engaged.
Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary.
- Section 12 (4) of the Human Rights Act 1998 provides that:
The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appear to the court, to be journalistic, literary or artistic material (or to conduct connected with such material) to (a) the extent to which (i) the material has, or is about to, become available o the public, or (ii) it is, or would be,, in the public interest for the material to be published, [and] (b) any relevant privacy code.
- As Peter Jackson J observed in A Local Authority v M and Others  EWHC 2038 (Fam) at paragraph 27:
"a conclusion that the Article 8 rights of individuals should prevail over the Article 10 rights of the public so as to restrict the reporting of criminal proceedings will be highly exceptional, though not beyond contemplation".
- In that case Peter Jackson J granted a RRO restricting the reporting of a criminal trial of the relevant children's mother. I have taken account of the other two reported decisions where such orders were made namely, A Local Authority v A  EWHC 1564 (Fam), a decision of a former President Sir Mark Potter, and City and County of Swansea v XZ and YZ v The Children, The Press, Media and Others  EWHC 212 (Fam), a decision of Moor J.
- There is annexed to the judgment in A Local Council v M a very helpful extract of key passages from the principal authorities in this area. I have had regard to all of them.
- In Re Trinity Mirror Plc (2008) 2 Cr App R 1 Lord Judge LCJ said at paragraphs 32 and 33:
32. This appeal succeeds on the jurisdiction argument; we must however add that we respectfully disagree with the judge's further conclusion that the proper balance between the rights of these children under Article 8 and the freedom of the media and public under Article 10 should be resolved in favour of the interests of the child. In our judgment it is impossible to over-emphasise the importance to be attached to the ability of the media to report criminal trials. In simple terms this represents the embodiment of the principle of open justice in a free country. An important aspect of the public interest in the administration of criminal justice is that the identity of those convicted and sentenced for criminal offences should not be concealed. Uncomfortable though it may frequently be for the defendant that is a normal consequence of his crime. Moreover the principle protects his interests too, by helping to secure the fair trial which, in Lord Bingham of Cornhill's memorable epithet, is the defendant's "birthright". From time to time occasions will arise where restrictions on this principle are considered appropriate, but they depend on express legislation, where restrictions on this principle are considered appropriate, and, where the Court is vested with a discretion to exercise such powers, on the absolute necessity for doing so in the individual case.
33. It is sad, but true, that the criminal activities of a parent can bring misery, shame, and disadvantage to their innocent children. Innocent parents suffer from the criminal activities of their sons and daughters. Husbands and wives and partners suffer all suffer in the same way. All this represents the further consequences of crime, adding to the list of its victims. Everyone appreciates the risk that innocent children may suffer prejudice and damage when a parent is convicted of a serious offence. Among the consequences the parent will disappear from home when he or she is sentenced to imprisonment, and indeed depending on the crime but as happened in this case, there is always a possibility of the breakdown of the relationship between their parents. However we accept the validity of the simple but telling proposition put by the court reporter to Judge McKinnon on 2 April 2007, that there is nothing in this case to distinguish the plight of the defendant's children from that of a massive group of children of persons convicted of offences relating to child pornography. If the court were to uphold this ruling so as to protect the rights of the defendant's children under Article 8, it would be countenancing a substantial erosion of the principle of open justice, to the overwhelming disadvantage of public confidence in the convicted and sentenced in them. Such an order cannot begin to be contemplated unless the circumstances are indeed properly to be described as exceptional.
- The nature and quality of the evidence which may be presented to the court in support of a RRO may to some degree be speculative. In Swansea v XZ and YZ Moor J observed at paragraphs 31 and 32:
31. Significant evidence has been put before me as to the risk that the children will suffer significant harm. Whilst I accept that such evidence does involve a considerable element of speculation, Sir Mark Potter P in the case of Re W (Children) (Identification: restrictions on publication)  EWHC 1564 (Fam),  1 FLR 1 said at Paragraph 21 that:-
"I accept that the evidence to which I have referred is speculative. However, in a situation where, so far, no substantial publicity has occurred, the evidence is necessarily speculative in nature. In this case, it consists of the assessment of a local authority officer and guardian, both with wide welfare experience and local knowledge as to local attitudes".
32. The evidence that has been placed before me comes into exactly this category. It is from a very experience social worker, Carol Jones, who is well aware of local conditions. I also have evidence from the Guardian (albeit that she has only relatively recently been appointed in this case) and from the consultant psychiatrist Dr D.
- I respectfully agree. There comes a point, however, where evidence is not merely speculative but is pure speculation, even from experienced professionals, with no sound or cogent underlying evidential basis. Given the Draconian and wide ranging nature of RROs, I am of the view that evidence of this nature will not be sufficient or adequate to provide an evidential basis to justify the making of an order.
- In R v Robert Jolleys, Ex Parte Press Association  EWCA Crim 1135 Leveson LJ said at paragraph 16:
'It was for anyone seeking to derogate from open justice to justify that derogation by clear and cogent evidence: see R v Central Criminal Court ex parte W, B and C  1 Cr App R 2 and in civil cases, the Practice Guidance (Interim Non-disclosure Orders)  1 WLR1033 and Derispaska v Cherney  EWCA Civ 1235 per Lewison LJ (at paragraph 14). The order was made when defence counsel asserted the likelihood of the defendant's son suffering "the most extraordinary stigma through no fault of his own" which caused the Recorder to ask the reporter what the need for identifying the son was, rather than whether it was necessary to restrict his identification.'
- The issue of identifying individuals involved in court proceedings and the importance of the use of a name was addressed by Lord Rodger of Earlsferry in the Supreme Court case in Re Guardian News and Media Ltd and Othrs  2 AC 6897 at paragraphs 63 and 64:
63. What's in a name? "A lot", the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature. And this is why, of course, even when reporting major disasters, journalists usually look for a story about how particular individuals are affected. Writing stories which capture the attention of readers is a matter of reporting technique, and the European court holds that article 10 protects not only the substance of ideas and information but also the form in which they are conveyed: News Verlags GmbH&Co KG v Austria 31 EHRR 246, 256 paragraph 39 quoted at paragraph 35 above. More succinctly, Lord Hoffmann observed in Campbell v MGN Ltd  2 AC 457,474 paragraph 59 "judges are not newspaper editors". See also Lord Hope of Craighead in In re British Broadcasting Corpn  1 ac 145 paragraph 25. This is not just a matter of deference to editorial independence. The judges are recognising that editors know best how to present material in a way that will interest the readers of their particular publication and so help them to absorb the information. A requirement to report it in some austere, abstract form, devoid of much of its human interest, could well not be passed on. Ultimately, such an approach could threaten the viability of newspapers and magazines, which can only inform the public if they attract enough readers and make enough money to survive.
64. Lord Steyn put the point succinctly in In re S  1 AC 593,608, paragraph 34 when he stressed the importance of bearing in mind that:
"from a newspaper's point of view a report of a sensational trial without revealing the identity of the defendant would be a very much disembodied trial. If the newspapers choose not to contest such an injunction, they are less likely to give prominence to reports of the trial. Certainly, readers will be less interested and editors will act accordingly. Informed debate about criminal justice will suffer".
Mutatis mutandis, the same applies in the present cases. A report of the proceedings challenging the freezing orders which did not reveal the identities of the appellants would be disembodied. Certainly, readers would be less interested and, realising that, editors would tend to give the report a lower priority. In that way informed debate about freezing orders would suffer.
- I respectfully agree. The observations of Lord Rodger are particularly apposite to the facts of this case. The naming of these respondents, for the reasons he gives, is a powerful argument in favour of discharging the RROs made in respect of them.
- When considering the impact on a child of there being publicity in respect of the child's mother's trial for murder Lord Steyn in Re S (A child) (Identification: Restrictions on Publication) said at paragraphs 24-25 and 27:
24. On the evidence it can readily be accepted that article 8 is engaged. Hedley J observed (para 18) "that these will be dreadfully painful times for the child". Everybody will sympathise with that observation.
25. But it is necessary to measure the nature of the impact of the trial on the child. He will not be involved in the trial as a witness or otherwise. It will not be necessary to refer to him. No photograph of him will be published. There will be no reference to his private life or upbringing. Unavoidably, his mother must be tried for murder and that must be a deeply hurtful experience for the child. The impact upon him is, however, essentially indirect.
27. The interference with article 8 rights, however distressing for the child, is not of the same order when compared with cases of juveniles, who are directly involved in criminal trials. In saying this I have not overlooked the fact that the mother, the defendant in the criminal trial, has waived her right to a completely public trial, and supports the appeal of the child. In a case such as the present her stance can only be of limited weight.
- In A Local Authority v PD  EWHC 1832 (Fam) Sir Mark Potter refused an application for a RRO in respect of the identity of a father of a 6 year old girl where he was alleged to have murdered the mother. He concluded at paragraph 38:
38. Thus, unusual and sensational as the facts of this case may be, the proposed identification of the defendant in connection with the criminal proceedings cannot be shown either to cause or create serious, let alone irremediable, damage to G in the enjoyment of her private or family life. It is certainly far from sufficient to outweigh the plain and substantial interference with the right of the press to identify the father and otherwise to report the criminal proceedings in which mother is being tried.
- In relation to how the press might report information from court proceedings the President said in Re J (a Child)  EWHC 2694 (Fam) at paragraphs 37-40:
37. It is not the role of the judge to seek to exercise any kind of editorial control over the manner in which the media reports information which it is entitled to publish. As I explained in Re Roddy (A child) (Identification: Restriction on Publication)  EWHC 2927 (Fam),  2 FLR 949, para :
"A judge can assess what is lawful or unlawful, a judge in the Family Division may be called on to assess whether some publication is sufficiently harmful to a child as to warrant preventing it. But judges are not arbiters of taste or decency … It is not the function of the judges to legitimise 'responsible' reporting whilst censoring what some are pleased to call 'irresponsible' reporting … And as the Strasbourg jurisprudence establishes (see Harris v Harris; Attorney-General v Harris  2 FLR 895, at ), the freedom of expression secured by Art 10 is applicable not only to information or ideas that are favourably received, or regarded as inoffensive, but also to those that offend, shock or disturb the state or any section of the community. Article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed. It is not for the court to substitute its own views for those of the press as to what technique of reporting should be adopted by journalists. Article 10 entitles journalists to adopt a particular form of presentation intended to ensure a particularly telling effect on the average reader. As Neill LJ recognised [in Re W (Wardship: Publication of Information)  1 FLR 99] a tabloid newspaper is entitled to tell the story in a manner which will engage the interest of its readers and the general public."
As the Strasbourg court has repeatedly said, "journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation:" see, for example, Bergens Tidende v Norway (2001) 31 EHRR 16, para 49.
38. Comment and criticism may be ill-informed and based, it may be, on misunderstanding or misrepresentation of the facts. If such criticism exceeds what is lawful there are other remedies available. The fear of such criticism, however justified that fear may be, and however unjustified the criticism, is, however, not of itself a justification for prior restraint by injunction of the kind being sought here, even if the criticism is expressed in vigorous, trenchant or outspoken terms. If there is no basis for injuncting a story expressed in the temperate or scholarly language of a legal periodical or the broadsheet press there can be no basis for injuncting the same story simply because it is expressed in the more robust, colourful or intemperate language of the tabloid press or even in language which is crude, insulting and vulgar. A much more robust view must be taken today than previously of what ought rightly to be allowed to pass as permissible criticism. Society is more tolerant today of strong or even offensive language: see on all this Harris v Harris, Attorney–General v Harris  2 FLR 895, para  and Re Roddy (A child) (Identification: Restriction on Publication)  EWHC 2927 (Fam),  2 FLR 949, para .
39. It is no part of the function of the court exercising the jurisdiction I am being asked to apply to prevent the dissemination of material because it is defamatory or because its dissemination involves the commission of a criminal offence. If what is published is defamatory, the remedy is an action for defamation, not an application in the Family Division for an injunction. If a criminal offence has been committed, the appropriate course is the commencement of criminal proceedings. If it is suggested that publication should be restrained as involving a criminal offence, that is a matter for the Law Officers.
40. The publicist – I speak generally, not of the present case – may be an unprincipled charlatan seeking to manipulate public opinion by feeding it tendentious accounts of the proceedings. But freedom of speech is not something to be awarded to those who are thought deserving and denied to those who are thought undeserving. As Lord Oliver of Aylmerton robustly observed in Attorney-General v Guardian Newspapers Ltd  1 WLR 1248, 1320:
"the liberty of the press is essential to the nature of a free state. The price that we pay is that that liberty may be and sometimes is harnessed to the carriage of liars and charlatans, but that cannot be avoided if the liberty is to be preserved."
The remedy, to repeat, is publicity for the truth which lies concealed behind the unfounded complaints, "more speech, not enforced silence."
- Accordingly the mere fact that sections of the press and broadcast media may report this matter sensationally or inappropriately forms no ground for making a RRO.
Evidence and Analysis
- I shall consider the evidence of and the evidence against each of the respondents who do not consent or who contest to the making of the injunctive orders sought by the local authority. Some of the respondents are the sole respondent to one of the applications whereas other applications relate to two or more of the respondents involved in the same incident. I will now analyse the evidence in respect of each application.
- Sarfraz Riaz is 32 years of age. He is currently serving a prison sentence for a sexual assault which does not relate to AB. He maintains his innocence in relation to this offence and maintains he was wrongly convicted.
- He has a total of 14 criminal convictions including for offences of burglary, racially aggravated assault and drugs offences.
- AB referred to Sarfraz Riaz as her 'boyfriend'. She claims he is the father of her unborn child. Until very recent days, AB supported Sarfraz Riaz, she wanted to give evidence on his behalf and did not support the local authority's application for an injunction against him.
- I note that AB's assertions that Sarfraz Riaz was her boyfriend and the father of her unborn child were made at a time when she was fully supportive of him. Accordingly it would appear that her assertions were not borne out of malice or to falsely implicate him of being involved in the CSE of AB.
- AB was keen to give evidence on behalf of Sarfraz Riaz. On 13 November 2014, however, DC Bluck visited the respondent at Winson Green Prison when he voluntarily made a statement about his version of his association and involvement with AB. In essence he said:
i) the local authority and the police had seriously failed AB;
ii) he was involved with her solely to help and protect her;
iii) a man, he named as Manni – believed to be the respondent Mansur Ahmed – was responsible for the sexual exploitation of AB;
iv) AB's mother knew of and was involved in her sexual exploitation.
- After AB had been told about the content of the statement she told her legal team that she was 'disgusted' by it. She no longer wished to give evidence on his behalf and now supported the making of an injunction against him.
- Sarfraz Riaz told DC Bluck he had known of 'Manni' long before he had met AB whom he met for the first time in mid/late June this year. He said 'I supported [AB] from July onwards by giving her food, money and a place to sleep when she wasn't at her moms or the hostel. She also stays at C's [a 19 year old young woman]".
- Further he told DC Bluck that on 10 July, because of the help he had given AB, he moved into AB's mother's house. I note he had known AB for no more than 3 weeks.
- Sarfraz Riaz told me in evidence that he knew AB was in care and that she was absconding. He alleged he knew she was being sexually exploited by 'Manni'. On 6 July 2014 he telephoned the police to complain about 'Manni's' treatment of AB. He confirmed in evidence that when he made that call he knew AB was missing and he knew where she was. When asked why he had not given that information to the police he prevaricated and claimed not to know 'the precise address'.
- In his prepared statement and in his oral evidence he claimed to have evidence that Manni was sexually exploiting AB. When asked why he had not provided this evidence to the police, he could not give any satisfactory or credible answer. He also could not explain why he had not provided that evidence to AB or her solicitor with whom he had been in contact.
- Sarfraz Riaz denied ever having sexual intercourse with AB, he denied being the father of her unborn child and he denied sexually exploiting her.
- Sarfraz Riaz was a most unimpressive witness. AB may be wrong in identifying him as the father of her unborn child but her assertion, at a time when she was supportive of him, indicates that they had had sexual intercourse. On the totality of the evidence I find they so did and that Sarfraz Riaz is lying when he denies the same.
- His account that he, a man aged 32, merely wanted to help a 17 year old young woman whom he knew was in care is not credible. I am satisfied on the totality of the evidence that he inveigled his way into AB's mother's home for the purposes of sexually exploiting her. I find that he gave AB food, money, and accommodation in pursuit of the same purpose.
- When Sarfraz Riaz first appeared before me he requested an adjournment to obtain legal advice and representation which I granted. I understand he did make contact with a solicitor but, for reasons I do not know, she was not able to assist. During the hearings on 19 November and 20 November Sarfraz Riaz made no application for an adjournment to obtain legal representation. It was only towards the end of my ex tempore judgment that he sought an adjournment. I refused the same because of:
i) the timing of the application;
ii) he had had sufficient opportunity to obtain legal representation;
iii) he had had sufficient time to consider the evidence against him and had produced a lengthy manuscript statement which he read to me; and
iv) the application was only made at a point when he knew I was going to find against him.
- In terms he sought permission to appeal my decision. I refused the same on the basis that the proposed appeal had no real prospect of success and I refused to stay my order.
Mohammed Javed, Nazeem Khan and Shah Alam
- On 25 August 2014 the police were seeking to locate AB who was missing. PC Burman attended a hotel in Lee Bank, Birmingham in the early evening. The receptionist had not seen AB but reported that a male, Mohammed Javed, had aroused suspicion when he had earlier sought to book two rooms at the hotel, then changed his mind and booked only one room. Further, he was initially going to pay for the room by a debit/credit card but then changed his mind and paid in cash.
- As a result of police intelligence the police returned to the hotel at 9:35pm. They were taken to Mohammed Javed's hotel room. They knocked on the door, waited for a response and then opened the door using the room key provided by the hotel. Three men were found in the room with AB. Mohammed Javed, 33, was under the covers of the bed and was naked from the waist up. Shah Alam, 36, was sitting at a table and Naseem Khan, 29, was standing at the bottom of the bed. Small bottles of vodka were open on the table. AB told police officers that she was just chilling with friends. She was irritated by the presence of the police. As she was being taken out of the hotel room by the police one of the men told her to go to the police station, to 'get it sorted' and then to come back to the hotel.
- Mohammed Javed told the police that he was ill and his friends had come to see him. He claimed his family home was too noisy.
- Mohammed Javed had consented at the hearing on 13 October to a final order being made against him. Naseem Khan and Shah Alam opposed the making of any order and denied any wrongdoing. Both respondents appeared in person and did not wish to be legally represented. They called Mohammed Javed as a witness in support of them. Each filed and served brief written statements.
- In oral evidence Naseem Khan said he had received a phone call from Mohammed Javed who requested a lift home and needed a phone charger. He was with Shah Alam at the time. He said they bought some food and drove to the hotel. On arrival they gave Mohammed Javed the USB phone charger and the food and almost immediately the police arrived. He said he never spoke to AB and went to the hotel to collect Mohammed Javed who had to be out of the hotel by 11pm.
- Under cross examination he claimed he had not had a drink, that the USB charger was in his hand when the police arrived and the food they had bought was on the bed. The police make no reference to seeing any food in the room. He said Mohammed Javed had said nothing about AB being in the room and he had not asked what she was doing there.
- In oral evidence Shah Alam was asked why he had not mentioned in his statement that Naseem Khan was present in the hotel room. He said he did not know. He said Mohammed Javed telephoned him and asked for a lift. He claimed he did not drink alcohol. Shah Alam said AB opened the door of the room to let them in. He denied going to the hotel to have sex with AB.
- When he was questioned about why he had not asked Mohammed Javed about AB's presence he replied they were just chilling and had been present 10 minutes before the police arrived. He added he did not know why he had not asked why AB was in the room, although he knew Mohammed Javed was a married man.
- Mohammed Javed said he had met AB that evening at a petrol station and she had asked for a lift. He said he was drunk and could not go home in that state and so he booked himself into a hotel room and AB came with him. He said there came a time in the later evening when no one would be at his home and so he telephoned his friends to give him a lift home.
- AB told the police she was chilling with friends at the hotel. The account of each respondent is wholly inconsistent with the accounts given by the other respondents. Where their accounts differ with the evidence given by the police, I prefer the evidence of the latter.
- I am wholly satisfied to the requisite standard that the respondent's are lying. I am satisfied they are lying because Mohammed Javed had taken AB to the hotel for the purposes of having sex with her and that Naseem Khan and Shah Alam attended the hotel for the purposes of having sex with her or, at least, for the purposes of preparing and grooming her for child sexual exploitation in the future.
- I am satisfied that he was provided with copies of the applications and orders made on 17 November 2014 when he was in police custody. The court made a further order on 17 November 2014 requiring Mansur Ahmed to attend Court on 19 November 2014.He did not attend that hearing. On 19 November 2014 further interim orders were made.
- Before the hearing on 27 November the process server had, on 25 November 2014, left copies of all orders at the last known address of Mansur Ahmed. The process server gained access to his address with the assistance of the landlord. I am satisfied that Mansur Ahmed has been properly and duly served. He knows of these proceedings and the consequences of failing to attend. He has chosen not to engage in these proceedings at all.
- The respondent Sarfraz Riaz has made allegations about the serial and serious involvement of Mansur Ahmed with AB. He alleged that that contact involved grooming and preparing AB for sexual exploitation.
- At a child sexual exploitation strategy meeting it became clear that Mansur Ahmed appeared to be considered to be AB's boyfriend. She thought him nice and kind and that he bought her things including a diamond ring. They had discussions about going to Pakistan together. AB had a bank card in her possession which she told Emma Danton of Spugeons, a support organisation, belonged to Mansur Ahmed.
- AB's mother telephoned and informed the social worker that there had been an occasion when AB had gone to Cardiff with a young person. In Cardiff AB was arrested and it was discovered that Mansur Ahmed had driven both of them to that city.
- In July 2014 AB's mother told Ms Danton that AB had two Facebook accounts, one for communicating with family and friends and one for communicating with adult males. AB's mother said she had 30 pages of conversations from the later account between AB and Mansur Ahmed. These conversations included references to the respondent suggesting marrying AB and proposing they make a visit to Scotland.
- On the last occasion that AB absconded from her residential unit, she had been found at the home of the respondent.
- On the totality of the evidence I am satisfied to the requisite standard that Mansur Ahmed was seriously involved in the child sexual exploitation of AB.
Rahman Aziz and Imran Uddin
- Rahman Aziz was found in a hotel room in Birmingham on 5 October 2014 with AB. He was found in the bed wearing only his boxer shorts. He said that he and Imran Uddin had been drinking the previous evening into the early hours celebrating Eid. He was still drunk on the afternoon of 5 October with Imran Uddin and was looking for a hotel to sober up in.
- He saw AB. He said he had met her one and a half to two years previously. He said that she was in the company of an elderly Asian male but was not being harassed by him. AB got in to the car and he left the passenger seat of the car driven by Imran Uddin and got into the back seat with AB. She whispered to him that she had been raped twice by the elderly Asian male. She said she had not reported it to the Police.
- Rahman Aziz said he tried to take her back to the hostel but they refused to let her in. So he took her to a hotel instead. He had no ID or money so Imran Uddin paid for him to book a hotel room. He said he wanted to keep her safe. He knew that she was keeping the company of older Asian males.
- AB gave a different version of events. She said Rahman Aziz drove up to her in the street. Imran Uddin was also in the car. They spoke and it was suggested that they went to a hotel to "chill". She told the police that Rahman Aziz had no money and so Imran Uddin paid for the room.
- Rahman Aziz became extremely agitated when giving evidence about the evening of 4 October. He said he was intoxicated. He said he did the right thing to help AB and protect her. He says he knew what it was like to be abused as he was abused by a male relative himself.
- In a manuscript statement of 15 October 2014, Imran Uddin set out his account of the events of 5 October as follows:
"seen [AB] getting harassed by a Pakistani make and she asked me to book a hotel for her because she did not have her ID. so I booked the room and left. The hotel I booked was the [X] hotel in Birmingham Small Heath. I did not enter the room you can check on the hotel's cameras".
- In that statement Imran Uddin does not refer to being with his friend Rahman Aziz. He does not give an account of attempting to take her back to her 'hostel'. He does not refer to the fact that their purpose in booking the hotel was to enable his friend to sober up. Nor does he give any explanation as to why AB needed to stay at a hotel.
- His account is completely at variance with that given to the court by Rahman Aziz.
- In no way were his actions designed or intended to help AB. He could have got her to a safe place by contacting Social Services or the Police. His account is different from that given by AB, on the one hand and that given by Imran Uddin on the other. I do not believe either Rahman Aziz or Imran Uddin.
- On the balance of probabilities I find Rahman Aziz is lying. He took AB to the hotel for sexual purposes. He was undressed because he had had sex with AB or was planning to do so. Any other explanation is untenable. I am entirely satisfied he was involved in child sexual exploitation with AB and that Imran Uddin was also involved.
Omar Ahmed and Mohammed Anjam
- Omar Ahmed is aged 27 and Mohammed Anjam is aged 31.
- The circumstances underlying the applications are that on the 9 October 2014 at about 3am police officers saw AB, who was known to them as a vulnerable child and missing person, got out of a Nissan Micra. AB waved to the two occupants.
- The police, given the concerns for AB and their long involvement with her decided to pursue the car. When the occupants noticed the police they drove off at speed and through a red light. The police officers put on the blue lights and eventually managed to stop the car.
- Omar Ahmed and Mohammed Anjam, the occupants of the car, were arrested and a mobile phone belonging to Omar Ahmed was seized. The last telephone call on that phone was to AB. Found in the rear passenger seat was a half empty bottle of vodka.
- Whilst the police were transporting Omar Ahmed to the police station they passed AB in the street and they invited her into the police car to be taken to her residential unit. She smelt strongly of intoxicating liquor. When spoken to by the police she said words to the effect of "what are you doing to my boys". Omar Ahmed quite deliberately avoided eye contact with AB.
- Later when interviewed by the police both men gave no comment interviews save to agree that items retrieved from the car were theirs.
- In statements prepared for these proceedings Omar Ahmed and Mohammed Anjam gave differing accounts. Omar Ahmed suggested that he had little conversation with AB and that it was Mohammed Anjam who spoke to her, Mohammed Anjam suggests it was the other way round. Their accounts are contrary in significant details.
- In the first instance and although represented by counsel, both respondents said they would submit to the making of the orders sought, although they maintained they had done nothing wrong. I indicated I was not prepared to make the orders sought on that basis and either they accepted the police evidence or they challenged it and I would hear oral evidence. Eventually, later in the day, both men accepted the police evidence and mounted no challenge to it. Having heard an outline of the facts and the inferences the local authority invited the court to draw neither challenged the evidence nor objected to the court drawing the inferences which the local authority invited the court to do so. Neither wished to give oral evidence.
- The explanation that a 27 year old man and 31 year old man picked up a 17 year old girl in the early hours of the morning to protect her is palpable nonsense. I am satisfied on the balance of probabilities, that they invited AB into the car for nefarious purposes. There can be no other explanation given their conduct and behaviour subsequent to their being apprehended.
- Even if they had not engaged in sexual activity with her on the 9 October 2014 they had her in the car for the purpose of grooming her and preparing to engage in sexual activity with her. I am wholly satisfied that they were seeking to sexually exploit AB.
- In the case of Re J (A Child)  EWHC 2694 (Fam) the President observed:
61. On the other hand, and because equity does not act in vain, the court will not grant an injunction which is ineffectual or, to use the Latin, a mere brutum fulmen. As Kerr LJ put it in the passage from which I have already quoted, "our courts will not make orders which they cannot enforce."
62. What approach should the court adopt in coming to a decision as to how to exercise its discretion? This is a matter for another day, when there is fuller argument than was appropriate in the present case. Here I merely note that in Wookey Butler-Sloss LJ said that "there must be a real possibility that the order, if made, will be enforceable," while in Dadourian Group International Inc v Simms and others (Practice Note)  EWCA Civ 399,  1 WLR 2499, para , Arden LJ said that "the court must be astute to see that there is a real prospect that something will be gained."
- The terms of the injunctive orders sought have, over the course of these proceedings, been amended and refined by the local authority's legal team. The final version of the injunction is set out in paragraph 9 above.
- Neither counsel who appeared for Mohammed Anjam and Omar Ahmed took issue with the terms of the injunctive orders sought. Neither did, perhaps unsurprisingly, any of the unrepresented respondents. The absence of any objection to the terms of the order sought does not, however, absolve the court of the responsibility to ensure the terms of the orders are fair, necessary, and proportionate to the facts of each case and the risks identified and are clear in what is or what is not prohibited by the order. Moreover it must be capable of being enforced.
- I have found all ten respondents to have been engaged in the sexual exploitation of AB. None of them had any long term association or relationship save perhaps for Mansur Ahmed. Their association or relationship with her was of relatively short duration. Sadly it is plain on the evidence that AB was known in the local area of Birmingham as a vulnerable young female who could be persuaded to take part in sexual activity with older Asian men.
- In all of those circumstances I am satisfied, that unless prohibited from doing so, there is a real risk that each of them would seek to sexually exploit other vulnerable young females under the age of 18. Accordingly I am satisfied that the terms of the proposed order at paragraphs 1 (e) and (i) are fair, necessary, and proportionate to the risk I have identified and are clear.
- I am similarly so satisfied in relation to AB in respect of paragraphs 1 (a) – (d) and 1 (f) – (h) of the proposed order.
- The orders do not prevent any respondent from being in the company of any female under the age of 18 years who is related to or previously known to them. In my judgment the terms of the orders, in terms of what they seek to prevent are clear and unambiguous.
- I am entirely satisfied that there is every prospect that the local authority and the police can and will ensure that these injunctive orders will be obeyed and, if needs be, enforced. There is a real prospect that something will be gained from these orders, namely:
i) the protection of AB and of other vulnerable young females;
ii) the prevention of these 10 respondents from engaging in CSE; and
iii) hopefully to act as a deterrent to other adult males from engaging in CSE.
- Therefore I made the final orders sought by the local authority against each of the Respondents.
Reporting Restrictions Order: AB
- No party opposed the making of a RRO in respect of AB in the terms sought by the local authority. The press and broadcast media did not oppose or make any submissions against the court continuing the interim RRO until AB's 18th birthday.
- The local authority, supported by AB, applied to extend the RRO beyond her 18th birthday to give her life long protection. Mr Dodd on behalf of the Press Association, The Times, and the BBC opposed such an order extending beyond AB's 18th birthday.
- The submissions that had any of the respondent's been convicted of a sexual offence against AB, she would have automatic life long anonymity pursuant to the provisions of the Sexual Offences Act 2003 has its attractions in support of the local authority's application. Hitherto, however, the courts have very rarely and only in the most extreme of circumstances granted life long anonymity in family and civil proceedings.
- I am not yet satisfied it would be appropriate to do so on the facts of this case. Much will depend on AB's reaction to any publicity given to this case. Accordingly I adjourned that issue and gave directions for the matter to be heard by me in the Summer Term of 2015. It is imperative the issue is resolved before AB's 18th birthday.
Reporting Restriction Orders: The Respondents
- I am very grateful to leading and junior counsel for the local authority, to counsel for AB, to counsel for the Chief Constable of the West Midlands Police, and to Mr Dodd of the Press Association for their detailed and helpful submissions on the issue of whether I should continue the interim RRO's to afford complete or partial anonymity for the Respondents.
- The Respondents, Mansur Ahmed, Sajid Hussain and Imran Uddin did not appear at the hearing on 19 November when this issue was heard by the court. They did not make any written representations on whether I should continue the interim RROs. The submissions of Sarfraz Riaz, Naseem Khan, Alam Shah and Rahman Aziz can be summarised as follows:
i) I have done nothing wrong;
ii) I should not be here;
iii) why should I be named?
- Mohammed Javed said he believed he and his family were at a high risk of harm – "more my family than me".
- Counsel for Mohammed Anjam told me that he lived alone and his parents were not in good health. They did know about these proceedings and he was concerned about the impact on his family. He believed he would be at risk of losing his job if there was adverse publicity about him. He told me his probation officer was against there being publicity. He did not oppose disclosure of his name and age but did oppose details of his address or photographs of him being published. He said he would be embarrassed if these details were made public.
- Counsel for Omar Ahmed told me that he had lost his job. His parents are in poor health and the publicity would affect them and his siblings. There was a risk he would take his own life. He had been assessed at a hospital in Birmingham after the hearing on 17 November and was now receiving daily visits from a community psychiatric nurse. He feared his parents would throw him out. He was more concerned that his parent's address would be known and did not want the press or broadcast media to publish a photograph of him.
- Ms Meyer QC informed me that Sarfraz Riaz, who is serving a custodial sentence, was at risk of suffering mental health problems and was on high suicide watch in prison.
- The local authority was essentially neutral on the issue of discharging or continuing the RROs in respect of the respondents.
- The Chief Constable of the West Midlands Police opposed the identification of the respondents in the media. I was given a copy of a risk assessment which had been undertaken by the police. I was told the risk of harm to each of the respondents was high. That was based on the fear of reprisal attacks by right wing racist organisations or by members of the local community.
- I was extremely surprised at the stance taken by the police. When I pressed for the factual basis upon which the risk assessment had been made, I was told there was none, the risk was unknown but based on experience, the risk was high. I regret I do not understand that analysis at all.
- Furthermore it was submitted there was a risk of members of the public being misidentified as respondents to the proceedings and being physically attacked or otherwise harmed. I regret that submission makes no sense to me at all and contradicted the Chief Constable's primary submission. The surest way of eradicating or ameliorating the risk of misidentification is ensuring the fullest possible details of each of the Respondents, including photographs, are made public and given wide coverage by the media.
- The third limb of the Chief Constable's submissions was similarly surprising and as a matter of law, completely wrong. It was submitted that details of the respondents and the findings of the court should be made known on a "need to know" basis and to do so would increase the efficacy of the injunctive orders.
- Such an approach may well be appropriate in a joint operation between the police and other public safeguarding bodies. It is not the proper approach to be taken when a court is considering whether the media should be restricted in the reporting of proceedings held in open court.
- I approach the issue of whether I should continue or discharge the RROs on the basis of balancing the competing article 2, 3, and 8 rights of the respondents against the article 10 rights of the press and broadcast media in accordance with the authorities referred to earlier in this judgment.
- I have assumed and proceeded on the basis that each respondent relies on his article 2, 3, and 8 rights in support of their opposition to the discharge of the RRO. For the avoidance of any doubt that includes Mansur Ahmed, Imran Uddin and SAJID Hussain who chose not to make any submissions.
- Mr Dodd vehemently submits that there is no good reason for the court to make RROs. It is an exceptional order and, particularly on the facts of this case, the public has a right to know what has taken place in open court proceedings.
- The Chief Constable of West Midlands Police and some of the Respondents rely on the provisions of Article 2 of the Convention. The approach of the court where a party relies on the provisions of Article 2 in the context of the reporting of court proceedings was considered by Baker J in Re Al-HIlli (Children)  2190 (Fam). He said at paragraphs 39-41:
39. The impact of article 2 on the reporting of proceedings was considered by the House of Lords in Re Officer L  UKHL 36,  1 WLR 2135. That case concerned a public inquiry in Northern Ireland into the death of an individual, with terms of reference directed to the conduct of the police. An application for anonymity was made on behalf of police officers whom the inquiry proposed to call as witnesses, on the ground that they would be in fear for their lives due to terrorist attack if they were publicly identified. It was contended that to compel them to give evidence without anonymity would constitute a breach of article 2. The inquiry rejected the claims, and although a judge allowed an appeal and the Court of Appeal in Northern Ireland dismissed an appeal from his decision, the House of Lords allowed a final appeal on behalf of the inquiry. Having cited paragraphs 115 and 116 of the judgment in Osman, Lord Carswell, with whom the rest of the constitution agreed, observed at paragraphs 20 – 21 that two matters had become clear in the subsequent case law.
"20 …. First, this positive obligation arises only when the risk is "real and immediate". The wording of this test has been the subject of some critical discussion, but its meaning has been aptly summarised in Northern Ireland by Weatherup J in Re W's Application  NIQB 67 at paragraph 17, where he said that: "… a real risk is one that is objectively verified and an immediate risk is one that is present and continuing." It is in my opinion clear that the criterion is and should be one that is not readily satisfied: in other words, the threshold is high …. In my opinion the standard is constant and not variable with the type of act in contemplation, and is not easily reached. Moreover, the requirement that the fear has to be real means that it must be objectively well-founded ….
21. Secondly, there is a reflection of the principle of proportionality, striking a fair balance between the general rights of the community and the personal rights of the individual, to be found in the degree of stringency imposed upon the state authorities in the level of precautions which they have to take to avoid being in breach of article 2. As the ECtHR stated in paragraph 116 of Osman, the applicant has to show that the authorities failed to do all that was reasonably to be expected of them to avoid the risk to life. The standard accordingly is based on reasonableness, which brings in consideration of the circumstances of the case, the ease or difficulty of taking precautions and the resources available."
40. On the facts of Officer L, Lord Carswell noted (at paragraph 23) that, although the inquiry had not expressly said so, it was inherent in its ruling that it did not consider the pre-existing risk to the officers to be sufficiently severe to reach the article 2 level of a real and immediate risk. Having analysed what he regarded as the erroneous conclusions of the judge and the Court of Appeal, he observed (at paragraph 24):
"If there is not a real and immediate risk to the life of an applicant before he or she gives evidence, then ex hypothesi to reach that threshold there must be some increase in risk occasioned by giving evidence. Only if that is the case can the requirement to give evidence "give rise to" a real risk to life."
41. At paragraph 25, Lord Carswell went on:
"The tribunal accordingly approached the matter properly under article 2 in seeking to ascertain whether giving evidence would give rise to a materially increased risk to life. Having found that it did not, it did not require then to go on to consider whether such an increased risk, if found to exist, would come up to the threshold required of a real and immediate risk to life."
- In my judgment the evidence of the risks to these respondents if there is publicity about this case is, at best, speculative. The reality is that whether there is a risk of harm or the degree and nature of the same is simply unknown.
- I am not satisfied that there is any credible evidence that there is a risk to the life of any respondent to these proceedings. Accordingly I am not satisfied that their article 2 rights are engaged. If I am wrong, and they are engaged, there is no credible evidence of a risk to life and I therefore accord little weight to these rights when undertaking the balancing exercise of competing Convention rights.
- There is some risk that some members of the local community or extremists might seek to harm one or more of the respondents. It is for the police to address that risk and to take reasonable steps to ensure public order in accordance with their general duties to their local communities.
- Publicity about these respondents may cause embarrassment, distress or anxiety to the respondents or to members of their respective families and friends. Such would not have occurred if they had not engaged, as I have found they did, in the sexual exploitation of a vulnerable young female.
- As Lord Judge observed in Re Trinity Mirror Plc (above) parents, partners and children can suffer misery and shame from the criminal activities of their children, partners and/or parents. It is a further consequence of crime adding to the list of its victims.
- In my judgment the term 'CSE' can be substituted for the terms 'criminal activities' and 'crime'. An order to protect the identity of the respondents in this case, which was heard in open court, in order to protect their family members cannot be contemplated unless the "circumstances are indeed properly to be described as exceptional".
- The sexual exploitation of young females by much older men attracts very considerable and widespread public interest. The extent of such activities around the country is only now emerging. I am satisfied that there are exceedingly powerful arguments in favour of the public knowing the details of cases of child sexual exploitation and in respect of proceedings held in open court.
- I have considered the competing rights and the arguments made in support of each. I am in no doubt that the balance in this falls clearly and decisively in favour of the article 10 rights of the press and broadcast media. Accordingly I discharge the RROs in respect of each respondent. There are no restrictions on what the media may report about any of them.
- I heard argument from Mr Dodd that the same principles apply if the court had not made adverse findings and injunctive orders against any of the respondents. In light of my findings of fact that event has not arisen and I propose not to make any ruling on that aspect of Mr Dodd's submissions.
- At the conclusion of the hearing on 17 November Ms Meyer QC, on behalf of the local authority, made an application for costs against Mohammed Anjam and Omar Ahmed. Further she indicated that the local authority would seek order for costs against each respondent in respect of whom injunctive orders were made. I held over the issue of costs until I had heard the last of the opposed applications.
- At the hearing on 27 November Mr Nuvoloni, then appearing for the local authority, told me that on further consideration the local authority had taken the pragmatic decision not to seek any orders for costs against any of the respondents. The view had been taken that the costs of enforcing any order for costs would be disproportionate and time consuming. I entirely agree with that eminently sensible approach.
- I am satisfied that each of these respondents sexually exploited AB. I am satisfied that it is fair, proportionate and necessary to make the injunctive orders sought by the local authority against each respondent.
- I wish to commend Birmingham City Council for the bold and innovative approach it has taken in this case. All too often in such cases the only action taken by the authorities, where there is insufficient evidence to mount a prosecution, is in respect of the victim. They are invariably taken into care or, in more extreme cases, they are placed in secure accommodation as was the case with AB. Whilst that action is taken in the best interests and to protect the young victim, it strikes me as wrong and unfair that no action is taken against the perpetrators of child sexual exploitation.
- These injunctive orders will protect AB and other vulnerable young females.
- I wish to commend the solicitors who have led the local authority's internal legal team, in the preparation for and pursuit of these proceedings. A team of leading counsel and two junior counsel were instructed by the local authority so as to ensure that at any hearing of these applications at least one of the team was available to appear for the council and were thus fully familiar with the case and the orders which had previously been made.
- I have been critical of the West Midland Police Force's risk assessment and its approach to the issue of disclosure of the identity of the respondents. I wish to praise, however, the degree of close and effective co-operation between the police and the local authority. It has been a model of its type and has played a crucial role in bringing these proceedings to a successful conclusion.
- I hope that the approach I have taken in this case and the orders I have made will send a powerful message to those who engage in the CSE of young females or are considering doing so. I very much hope that the stance taken by Birmingham City Council, in close co-operation with the West Midlands Police, will be considered and followed by other local authorities in cases of CSE.
Copyright Policy |
Donate to BAILII