CHILDREN AND YOUNG PERSONS ACT 1933 s39 – Civil Procedure Rules r5.4 - Identification of child subject of medical negligence out of court settlement – A (A Child) v Cambridge University Hospital NHS Foundation Trust [2011] EWHC 454

C, an infant, had been the subject of a large court approved settlement of a medical negligence claim. Tugendhat J granted an order under s39 CYPA 1933 prohibiting the identification of the child in any newspaper report of the settlement and the claim relating to it. In the judge’s view this order was appropriate to ensure that the settlement was properly looked after. The disabilities C had suffered would lead to vulnerability in his adult life and if knowledge of his identity became known risk, particularly on the Internet, there was a risk of loss of the money at his disposal to people seeking to take advantage of his vulnerability. The judge felt a s39 order was less restrictive than a complete anonymity order. (See also JFX (A Child) v York Hospitals NHS Foundation Trust [2010] EWHC 2800 (QB) granting child anonymity in medical negligence settlement procedures)

CORONERS AND JUSTICE ACT 2009 – ss88-90 – Whether anonymity order in relation to key witnesses in murder trial rendered guilty verdict unsafe – R v ALEX OKUWA [2010] EWCA Crim 832
O appealed against his conviction for the murder of a known drug dealer, but his co-accused was acquitted. Heavy reliance was made by the prosecution on two anonymous witnesses P and R – after the trial fresh evidence emerged that R was a known drug user and prostitute who had been involved in the supply of drugs with the victim and that P was an over-stayer immigrant who had initially lied to the police. The Court of Appeal held that the judge had correctly applied the strict conditions set out in s88 C&JA 2009 in relation to the granting of witness anonymity orders and the resulting verdict was not unsafe, despite the fresh evidence and the appeal was rejected.

COMMON LAW – OPEN JUSTICE – CLOSED MATERIAL PROCEDURE – NATIONAL SECURITY – EVIDENC HEARD IN ABSENCE OF CLAIMANT – CLAIMANT’S INTERESTS TO BE PROTECTED BY SPECIAL ADVOCATE

The Supreme Court has once again confirmed the importance of open justice and held that in an ordinary civil trial for damages in the absence of any specific statutory power the common law could not be extended to permit a partially open and partially closed trial on the grounds of national security. In the closed element of the trial the accused’s interests would be represented by a special advocate appointed by the court. This was an action by a claimant for damages arguing that the UK security services had been complicit in his detention and ill-treatment by foreign authorities at various locations most notoriously at Guantanamo Bay. There Lordships emphasized that there were already mechanisms including public interest immunity certificates, which could be used to protect sensitive information relating to national security.

HUMAN RIGHTS – RIGHT TO LIFE – ARTICLE 2 EUROPEAN CONVENTION ON HUMAN RIGHTS – EXTENSION OF ANONYMITY ORDER IN RESPECT OF CHILD MURDERER – VENABLES V NEWS GROUP, 30 JULY 2010, Bean J

V while a child participated in the murder of another child Jamie Bulger – one of the most high profile child murder cases in the UK in recent times – on release he was granted lifelong anonymity in respect of the new identity constructed for him to permit him to start a new life without fear of revenge attacks and retribution – however there was a provisio that the new name could be published if he was prosecuted for a criminal offence and it was an open trial – in this case Bean J removed the proviso and extended the injunction to cover his naming in relation to charges involved use of child pornography on the internet to which V had pleaded guilty. In essence Bean J said that the threat to his life and safety still remained.There was no legitimate public interest in knowing V's appearance, his location in custody, or the exact location at which he was arrested and to which he might return in the event of being released, or if there was, it was of marginal significance when set against the compelling evidence of clear and present danger to his physical safety and indeed his life if those facts were made public. There was no reason why V's new name should be made public where the effect of doing so would simply be to assist those who sought him to track him down. The fact of public interest was that the man formerly known as V had been convicted: his new name was entirely immaterial. Despite the passage of over 17 years since B's murder, and nine years since the original injunction, there was clear evidence that the threat to V from members of the public had not diminished. It was a fundamental duty of the state to ensure that suspects, defendants and prisoners were protected from violence and not subjected to retribution or punishment except in accordance with the sentence of a court. That principle applied just as much to unpopular defendants as to anyone else.

HUMAN RIGHTS – EUROPEAN CONVENTION OF HUMAN RIGHTS – ARTICLES 8 & 10 – COURT OF PROTECTION – ADMISSION OF PRESS AND REPORTING OF DETAILS OF A CASE INVOLVING VULNERABLE ADULT – P (by his litigation next friend The Official Solicitor) v Independent Print [2011] EWCA Civ 750

P, who was 26, suffered from uncontrolled epilepsy, which his doctors believed created a risk of cumulative brain damage and possibly sudden death. His adoptive mother took a different view and withdrew his anti-epileptic medication.  
P was admitted as an emergency to hospital with a prolonged epileptic fit. Court of Protection proceedings were taken by the Official Solicitor and the issue was whether P should have independent living accommodation and limited contact with his mother or whether he should continue to live with his mother.  The media applied for appropriate access to the court and to report the proceedings with suitable safeguards in relation to P’s identity. The Court of Appeal balancing P’s rights to privacy with the media’s right of freedom of expression held that given the importance of the issue involved – the potential separation of a son from his mother – their was a public interest in permitting reporting of the case with appropriate safeguards for P and that the public interest in awareness of the complex issues involved under Article 10 outweighed the privacy interests under Article 8.

FAMILY PROCEEDINGS – HUMAN RIGHTS – ARTICLES 8 @ 10 EUROPEAN CONVENTION ON HUMAN RIGHTS 1950 – EXPERT REPORT WHETHER MERELY NAMING EXPERT SUFFICIENT OR WHETHER REDACTED OF CRITICISED REPORT SHOULD BE PUBLISHED – RE X, Y, Z (CHILDREN) V A LOCAL AUTHORITY [2011] EWHC 1157 (Fam)

In care proceedings a  paediatrician prepared a report on factitious or induced illnesses – this report was subject to criticism by the district judge.  Because of the wider public interest in the issue the question was whether the identity of the expert should be revealed and a suitably redacted copy of the report to protect the identities of the children and parents.  The expert argued that his identity should be protected, particularly he had not been cross-examined on the report or given a chance to rebut the criticisms of him.  The President of Family Division held that the judge should not have made the criticisms made and ordered the name and redacted report to be made public – observations to effect that experts should be named and redacted reports made available – court did not feel effect of such order would discourage experts from acting as court experts.

CARE PROCEEDINGS – MOTHER ACCUSED OF MURDER OF TWO SIBLINGS OF CLAIMANT – RESTRICTIONS IN NAMING HER NEWLY BORN CHILD – WHETHER RESTRICTIONS SHOULD BE EXTENDED TO OTHER ADULT MEMBERS OF FAMILY – RE A (A MINOR) V A MOTHER & OTHER PARTIES [2011] EWHC 1964 (FAM)

X was born in 2010, her mother had been arrested on suspicion of the murder of two of X’s siblings.  Other older children of M had been placed in care of maternal grandmother who had been subject to considerable media harassment.  Both X’s mother and father suffered severe ongoing mental problems.  There were fears that media intrusion would expose M to the risk of ‘self-harm’. On four occasions visits by X to M had to be cancelled to protect X’s safety and privacy.  Media accepted X could not be named but wanted to name other adult members of the family.   The court continued the order restricting any reference to X or any information about her but held media Article 10’s interests outweighed the privacy interests of the adult members of the family given the strong public interest in the reporting of the murder cases and the issues surrounding the death of the two children. 

COURT OF PROTECTION – GENERAL GUIDANCE ABOUT REPORTING PROCEEDINGS IN THE COURT – IDENTIFICATION OF PARTIES INVOLVED IN TREATMENT OF PATIENT IN RELATION TO WHOM APPLICATION TO DISCONTINUE LIFE-SUPPORT – W (BY HER LITIGATION FRIEND B) V M (AN ADULT) & OTHERS [2011] EWHC 1197

In recent times in relation to various types of proceedings – care proceedings, family proceedings and mental capacity proceedings etc there has been a distinct relaxation on what has traditionally been very draconian reporting restrictions – but not without sacrificing genuine privacy issues of those involved – usually publication of redacted judgments and allowing reporting without identification of parties or information allowing them to be identified. Here judge gave guidance of reporting proceedings in the Court of Protection, traditionally a court surrounded by a great deal of secrecy, about reporting of an application to discontinue life support treatment in relation to a 43 year old patient suffering from a profound brain wasting disease. Essentially media could report on application, issues surrounding it and outcome but not identify a number of parties involved such as the NHS Trust and the team treating the patient and the relatives involved in making the application. 

HUMAN RIGHTS ACT 1998 s12 – CIVIL PROCEDURE r39 (2) (3) (a), (c) & (e) – INTERIM INJUNCTION – ANONYMITY – PRIVATE HEARING – HIGH PROBABILITY DEFENDANT GUILTY OF BLACKMAIL – KJH v HGF [2010] EWHC 3064 (QB)

This case illustrates the high degree of protection courts have traditionally given to protect the identities of victims of blackmail – in part to encourage them to come forward and reveal the blackmail. Here Sharp J continued an interim injunction protecting the identity of H where there was a high degree of probability that at a full trial H could establish that they were the victim of an attempted blackmail attempt by the revelation of private and confidential information. The court held the hearing in private as an exception to the principle of open justice under CPR r 39(2).
(See also AMM v HXW [2010] EWHC 2457 (QB), Tugendhat J).

Children Act 1989 s97 – Children and Young Persons Act 1939 – s39 - Administration of Justice Act 1960 – s12 – Medway Council v G [2008] EWHC 1681 (Fam) 18/7/08 – reporting of care proceedings – anonymised report – allowing reporting in part in response to considerable media interest and hostile comment on decisions and actions of local council involved.

The care proceedings involved in this case had provoked considerable media comment, much of it hostile, when the stepfather of the child involved was sent to prison for child abduction, in assisting the child's mother to take the child out of the jurisdiction in defiance of a court order. The natural parents had been involved in protracted, bitter, and messy proceedings in relation to the child with the local authority that had obtained an interim and final care orders. Some newspapers had represented the stepfather as heroic and that the Council were involved in 'child ruination not child protection'. Some articles strongly attacked the secrecy which surrounded the care proceedings. In part to permit more informed and balanced discussion Potter P permitted under s97 CA 1989 and s12 AJA 1960 the reporting and discussion of the proceedings suitably anonymised and restricted to protect the interests of the child. This is the latest decision responding to what judges considered ill-considered criticisms of so-called 'secret justice'. The judge specifically rejected a request by the local authority that their name remain anonymous. The information to be published in relation to the care proceedings was in the form of a judicially approved summary of facts.

Tradition Securities and Futures SA v. Times Newspapers Ltd Appeal No. UKEATPA/1415/08/JOJ

For the purposes of section 11(1) of the Employment Tribunals Act 1996, and in conjunction with Rule 50 of the Employment Tribunal Rules of Procedure, the Chair of an Employment Tribunal may make an order prohibiting the identification of any person “affected” by an allegation of sexual misconduct. Where such an order is made, the Chair may now include within it persons who would not ordinarily qualify for a Restricted Reporting Order, but the identification of whom is likely to lead to the so-called “jigsaw identification” of those who would qualify. The concept of “likely” should not be viewed as a statistical probability, but instead meant that there was a real chance or danger or identification in this manner. The onus is therefore on the press to take particular care in reporting on background facts, even if this ultimately renders the final report rather bland and uninspiring.

Times Newspapers v. Secretary of State for the Home Department & AY [2008] EWHC 2455 (Admin)

For the purposes of granting an anonymity order in respect of a controlled person under Schedule 1, Para 5 of the Prevention of Terrorism Act 2005, the principles of open justice permits such a person to be named and there may well be a clear public and media interest in doing so. In striking the balance between the Article 8 rights of the controlled person and the Article 10 interests of the press, the courts must nonetheless remain aware that control order proceedings are not criminal proceedings, as there is no inherent finality to them and the controlled person may never have an opportunity to clear his/her name. While Article 8 rights are highly relevant in the decision, they must also coexist with the Article 10 rights of the media, and the overall effectiveness of the control order is an essential criterion in striking the balance. While the danger of a potential attack on a controlled person should not derail the demands of open justice, nor should the effect of such publicity be ignored. Applications for anonymity should not be made automatically, however, and should be accompanied by supporting reasoning from the Secretary of State.

X Council v. B & Others [2008] EWHC 270 (Fam)

Where a previous set of care proceedings had been brought some four years earlier, the children and parents in questions were able to waive their anonymity (identified only by initials) in order to participate in a magazine story about their experiences. However, while they were permitted to discuss the general nature of the issue, they were not able to link themselves with the specific judgment, nor were they able to identify the Council authorities in question. The applicants, most of whom were of adult age and a further applicant being 16 years old, were no longer subject to wardship and were able to take the decision for themselves, with the minors involved requiring parental permission to participate in the proposed story. Notwithstanding the personal reservations of the judge in publicising their experiences in this manner, there was no public interest in precluding participation in a very general magazine discussion of wardship issues.

Southend on Sea Borough Council v. RSH & Others [2008] EWHC 327 (Fam)

A judgment could be amended to identify a team of social workers that had acted in an incompetent manner, without disturbing the anonymity of the child in question. Professional witnesses are “not entitled to depend upon the cloak of confidentiality that covers their evidence during the proceedings to continue after without more ado”. The strong public interest in ensuring public confidence in social services means that critical reporting may be conducted into the performance of key personnel, and aspects of the procedural evidence provided by these witnesses could be released to the press without in any way identifying individual children affected by these errors. Social services ought to be policed by judicial and professional scrutiny, hence lifting the anonymity of individual witnesses, without diminishing the integrity of reporting restrictions on children affected by their activities, would not be a disproportionate response.

Crawford v. Crown Prosecution Service [2008] EWHC 854 (Admin)

The clear embarrassment caused to children by the criminal conviction of their father for the harassment of their mother and her new partner, while undoubtedly regrettable, did not constitute sufficient grounds to impose sweeping reporting restrictions. Reporting restrictions in criminal cases were appropriate in exceptional or unusual circumstances, but this particular instance – notwithstanding that the convicted was a prominent barrister and judge and therefore likely to garner substantial media attention – was no different to the embarrassment felt by the families of many other convicted defendants. The court issued a reminder to Magistrates’ Courts generally that orders under section 39 of the Children and Young Persons Act 1933 should not be made as a matter of routine, that the status in the community of the defendant was wholly irrelevant and reporting restrictions should be made only upon a careful balancing of matters relating to the public interest.

R (On the Application of Trinity Mirror Plc) v. Croydon Crown Court [2008] EWCA Civ 50

The Court of Appeal struck down an order made by the defendant court that prevented the identification of an offender convicted of child pornography offences in order to protect his children. The court had lacked jurisdiction to order such restrictions, and section 45(4) of the Supreme Court Act 1981 had to be strictly adhered to, notwithstanding the ultimately desirable outcome that the two young children ought not to be exposed to the media glare of the sins of their father.

Dallas McMillan & A v. B and F Davidson Appeal No. UKEATS/0006007MT

Where an Employment Tribunal imposes a Restricted Reporting Order, the only persons with the capacity to apply for a revocation are the parties themselves. In this particular instance, where a claim of sexual misconduct was lodged and subsequently withdrawn at an early stage in the proceedings, the Tribunal had erred in granting a revocation order to a freelance journalist who was in no way connected to the case as a party or potential party.

European Convention on Human Rights Articles 8 & 10 In Re Guardian News and Media [2010] UKSC 1, [2010] 2 WLR 325 – Identifying persons subject to asset freezing orders under anti-terrorism legislation – principles of open justice.

Anonymity orders had been made by the Administrative Court in relation to a number of defendants whose assets had been frozen under the Terrorism (United Nations Measures) Order 2006, Article 4. To some extent in various contexts some of the defendants had already been identified and two had left their addresses and not engaged in the proceedings – in relation to these two their brother, also a defendant, argued that he and they should not be identified because that would identify him and cause him substantial harm. He argued that he would suffer serious damage to his reputation in a context which would not permit him to vigorously deny the allegations and his family would suffer, as would his relationship with the local Muslim community. The Supreme Court held that in the circumstances Articles 8 and 10 were engaged as were principles of open justice. After a careful balancing of the factors involved their Lordships lifted the anonymity ban.
This case is an important discussion of the inter-action of privacy, open justice principles, and media rights of freedom of expression. From the media point of view once again their Lordships emphasized the value to the media in naming persons instead of ‘disembodied’ reporting which might give rise to a lesser priority being granted to the story. Queries were also raised about the juridical basis of the orders in the first place.

Mental Capacity Act 2005, s51 – Court of Protection – Reporting restrictions

A (By The Official Solicitory) V Independent News And Media [2010] EWCA CIV 343, 31/3/2010 – application by media to report proceedings concerning a patient with severe learning difficulties but who nevertheless had obtained high public recognition as a musical prodigy.

The brother and sister of a man with severe learning difficulties, but who had obtained recognition and money by virtue of being a musical prodigy at the piano, sought directions that they be appointed as deputies and to take decisions on his behalf in relation to his personal welfare, his property, and other affairs. The Royal National Institute for the Blind sought the appointment of an independent deputy who would closely liaise with the family. Historically the Court of Protection and its predecessor bodies had sat in private and proceedings were not reported. Section 51 of the Mental Capacity Act 2005 provided for rules of court to be made in relation to Court of Protection proceedings, including hearings in private and to restrict the reporting of proceedings (Pt 13 Rules 90-93 Civil Procedure Rules). Hedley J at first instance had permitted limited reporting providing there was no identification of A as the subject of the proceedings. The Court of Appeal upheld the decision of Hedley J. The Lord Chief Justice, Judge LJ in giving the judgment of the Court stated:

“In agreement with Hedley J, we would emphasise that, even when good reason appears, before the necessary authorisation can be granted better reasons may lead the court to refuse it. Accordingly the reality is that provided good reason appears, the court will then assess all the relevant considerations and make a balanced, fact specific judgment whether the specific authorisation should be granted. In other words, before the court makes an order under Rules 90 to 92, a two stage process is required; the first involves deciding whether there is "good reason" to make an order under Rule 90(2), 91(1) or 92; if there is, then the second stage is to decide whether the requisite balancing exercise justifies the making of the order.” (@para 11)

In essence selected representatives of the media would be permitted to attend and then could make submissions, in the light of what they had heard, which the court would permit to be reported. The court also appeared to be influenced by wider considerations that this would be an appropriate case to illustrate the operation of the court to the public, particularly as some questions had been raised in the media as to whether the court was achieving its object of protecting the vulnerable in all cases. The only point of difference between Hedley J and the Court of Appeal was that the media’s Article 10 rights ECHR 1950 were engaged on the making of application to attend and report and not at the second stage after the judge had decided whether a ‘good reason’ existed to permit attendance and reporting. In paragraphs 40-44 the Court of Appeal stressed the importance of permitting the media to have access to the reporting of court proceedings unless there were, as here, strong countervailing reasons for restrictions on reporting. The decision tends to reflect the increasing lifting of restrictions on traditionally private matters such as domestic proceedings.

FAMILY PROCEEDINGS – DISCLOSURE OF DOCUMENTS – CONTEMPT – BREACH OF ORDER – NO PENAL ORDERS – RE SC (CHILDREN) V HC [2010] EWCA Civ 321, 28 January 2010

Many family proceedings are held in private and strict rules imposed on publication and disclosure of documents. Breach of these rules by a party or the media can result in an action for civil contempt involving up to two years imprisonment and/or a fine without upper limit. In this case involving the custody and access to children, the county court judge had ordered that ‘both parties shall be expressly prohibited from disclosing and documents filed in these proceedings…to any person save for a Solicitor of the Supreme Court of England or Counsel with rights of audience.’ One of the documents disclosed was an expert’s opinion which described the respondent as being ‘by nature narcissistic’. The appellant discussed the contents of the document with her Turkish lawyer. The order did not include a penal notice advising of the consequences of the breach of the order. The Court of Appeal quashing an order for committal stressed that if an order were to have penal consequences it needed to be clear on the face as to precisely what that meant and precisely what it restricted the parties or any third parties, such as the media, from doing. The appellant had not disclosed the report to anyone though she had discussed the contents of the report with her Turkish lawyer – and a party must normally be permitted to discuss the any issue with their bona fide legal representative, even if he were not a lawyer as defined in the order.