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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Birmingham City Council v Riaz & Ors (Rev 3) [2014] EWHC 4247 (Fam) (15 December 2014) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2014/4247.html Cite as: [2014] EWHC 4247 (Fam) |
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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.
BM14P09069 BM14P09070 BM14P09071 BM14P09073 BM14P09074 |
FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
BIRMINGHAM CITY COUNCIL |
Applicant |
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- and - |
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(1) SARFRAZ ![]() ![]() (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 (12) AB |
Respondents |
____________________
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
____________________
Crown Copyright ©
Mr Justice Keehan :
Introduction
Applications and Orders Sought
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.
Interim Hearings
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.
The Background
Law: Burden and Standard
Law: Jurisdiction
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; ande) orders for the return of children to and from another state.
"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".
Law: Reporting Restriction Order
Article 8
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.
Article 10
Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary.
The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appear to the court, to be journalistic, literary or artistic material (or to conduct connected with such material) to (a) the extent to which (i) the material has, or is about to, become available o the public, or (ii) it is, or would be,, in the public interest for the material to be published, [and] (b) any relevant privacy code.
"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".
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.
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) [2005] EWHC 1564 (Fam), [2006] 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.
'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 [2001] 1 Cr App R 2 and in civil cases, the Practice Guidance (Interim Non-disclosure Orders) [2012] 1 WLR1033 and Derispaska v Cherney [2012] 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.'
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 [2004] 2 AC 457,474 paragraph 59 "judges are not newspaper editors". See also Lord Hope of Craighead in In re British Broadcasting Corpn [2010] 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 [2005] 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.
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.
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.
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) [2003] EWHC 2927 (Fam), [2004] 2 FLR 949, para [89]:
"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 [2001] 2 FLR 895, at [373]), 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) [1992] 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 [2001] 2 FLR 895, para [372] and Re Roddy (A child) (Identification: Restriction on Publication) [2003] EWHC 2927 (Fam), [2004] 2 FLR 949, para [89].
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 [1987] 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."
Evidence and Analysis
Sarfraz Riaz
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.
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.
Mohammed Javed, Nazeem Khan and Shah Alam
Mansur Ahmed
Rahman Aziz and Imran Uddin
"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".
Omar Ahmed and Mohammed Anjam
Injunctive Orders
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) [2006] EWCA Civ 399, [2006] 1 WLR 2499, para [35], Arden LJ said that "the court must be astute to see that there is a real prospect that something will be gained."
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.
Reporting Restrictions Order: AB
Reporting Restriction Orders: The Respondents
i) I have done nothing wrong;ii) I should not be here;
iii) why should I be named?
39. The impact of article 2 on the reporting of proceedings was considered by the House of Lords in Re Officer L [2007] UKHL 36, [2007] 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 [2004] 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."
Costs
Conclusion