CONTEMPT OF COURT ACT 1981  s4(2) – Appropriateness of blanket ban on reporting of three successive trials involving murder of same victim – Application for Leave to Appeal by MGN Ltd [2011] EWCA Crim 100

The case involved a high profile murder of a 15 year old boy involving up to 20 defendants. For case management reasons there were three separate trials. Before the first trial a blanket ban was imposed on the reporting of anything to do with the trials until the end of the third trial. The primary reason for this was to protect a number of young witnesses who went to the same college as the defendants and who might be exposed to the risk of potential hostility and the judge might also affect the evidence given in second or third trials. No evidence that fair and accurate reporting of the trial would create a risk to the integrity of juries in the second and third trials. The Court of Appeal quashed the blanket bans stating that the problems with witnesses should be dealt with by more specific orders under s39 CYPA 1933 or use of powers under ss23-30 Youth Justice and Criminal Evidence Act 1999 or more specific directions by the judge to the juries. As no order could be made under s39 CYPA 1933 before the trial began – the court urged the press to use its discretion in not naming the young witnesses. Alternatively use of provisions allowing anonymity of witnesses and the giving of evidence from behind screens etc. could be used. 

CONTEMPT OF COURT ACT 1981 s2 – STRICT LIABILITY CONTEMPT – PUBLICATION OF PREJUDICIAL PHOTOGRAPHS WHILE PROCEEDINGS ACTIVE – IMPOSITION OF FINE – Attorney-General v Associated Newspapers [2011] EWHC 1894 (Admin)

Two newspapers were fined £15,000 each and ordered to pay £28,000 in costs for publishing the photograph of a defendant on trial for murder showing him holding a gun while proceedings were active – with the resulting potential for prejudice – the court considered there had been an avoidable error in the failure to crop, in the one case and the ineffective cropping in the other of the photograph removing the part showing the accused holding the gun.  The image had only been on line in both cases for about 5 hours.  No juror had seen it – but it is the potential for prejudice as well as actual prejudice that was covered by the ‘strict liability’ rule and the defence of what was really an unarguable case justified the costs award against the newspapers. 

Contempt of Court Act 1981 – s11 – Supreme Court Act 1981 – s45(4) R (on the application of Trinity Mirror) v Croydon Crown Court [2008] EWCA Crim 50, 1/2/08 - permanent reporting restriction – anonymity of person accused of child pornography offences to protect the interests of his children – Whether a Crown Court could grant injunction on basis that anonymity order was 'incidental to its jurisdiction.'

A Crown Court judge had issued an order under s11 CCA 1981 restraining the identification of the accused who had been found guilty of child pornography offences in relation to the making or possessing of indecent images of children. The order was made to prevent significant harm to his children who were not involved as either witnesses or victims in relation to the offences. A five member Court of Appeal ruled that the order was not incidental to the Crown Court's criminal jurisdiction under s45(4) SCA 1981; neither did they possess any inherent jurisdiction to make the order and nor were the children's privacy interests under Article 8 ECHR 1950 sufficient to prevail over the strong public interest under Article 10 in the full reporting of criminal trial proceedings. Therefore, not having the power to do so, no permanent reporting ban could be issued under s11 CCA 1981.

Contempt of Court Act 1981 – s2(2) – Attorney General v ITV Central Ltd [2008] EWHC 1984 (Admin Div Ct), Pill LJ & King J), 15/7/08.

The Attorney General applied for an order for committal, or other appropriate order, against the respondent broadcaster for breach of the strict liability contempt rule – s2 CA 1981. A regional television breakfast news bulletin in relation to the trial of five men for murder later that day referred to the fact that one of the men had been convicted of, and was currently serving, a sentence for murder. The report was of 23 seconds duration. The report was repeated on two later morning bulletins and when these broadcasts were drawn to the attention of the trial judge he ordered the postponement of the trial. The broadcaster voluntarily agreed to pay the wasted costs created by the postponement, which amounted to £37,014, before the actual costs were known to it. The broadcaster further accepted that this was a 'serious but aberrational' error – but argued it could not foresee that a trained journalist would make such a ‘blindingly obvious’ error. It had also, subsequently, put in place more effective editorial controls to prevent a reoccurrence of such an event. The Divisional Court took the view that this was a serious and basic error which had caused disturbance to the court and delays and further distress to third parties. However in mitigation wasted costs had been voluntarily paid and allowing for that it would be appropriate to impose a fine of £25,000.

Contempt of Court Act 1981 – s11 – Article 6 European Convention on Human Rights 1950  – Times Newspapers & Others v Soldier A & Others [2008] EWCA Crim 2559, Court Martial Appeal Court, 24/10/08

An order was made that certain proceedings for conspiracy to defraud against a group of soldiers be held in camera under s11 CA 1981. In addition, that no reports be made about the proceedings save the fact that the soldiers had been charged. Various newspapers challenged the order on the ground that it was not justified on the material presented to the judge and in any event overly restrictive and not justified under s94 Army Act 1955 (courts martial to sit in open court unless order made in interests of administration of justice or to avoid publication of information of potential use to an enemy). Before the Court of Appeal the prosecution accepted this argument but put forward a modified order that the public only be excluded where matters of national security were truly in issue. The prosecution did not oppose the appeals on this basis and they were allowed. In the event the prosecution informed the Court of Appeal that it would offer no evidence when the matter came back before the court martial. One soldier who had not requested anonymity was acquitted by a separate court martial. The newspapers now sought an order that material before the court in the respective proceedings be made public and that there was no further justification for maintaining the anonymity of the remaining soldiers.
The Court of Appeal ruled that the material submitted in camera should not be published – they were considering applications about the extent to which evidence or other material be made public in the hearing – this material was not in the public domain and it was in the interests of justice that it not be published. S94(2) Army Act 1955 was not relevant here as there was to be no trial on which it could bite. Any anonymity order, without any other statutory basis, had to rest on the fact that there might be a real and immediate risk to the life of the soldiers – applying In re Officer L [2007] UKHL 36, [2007] 1 WLR 2135. In the case of two of the soldiers there was such evidence, but not in relation to the other three, but if they were identified it would lead to the identification of the other two so the orders in relation to all of them would be maintained. B had been named in a separate court martial and though his naming in relation to the other proceedings might undermine to some extent the anonymity of the other five, given his Article 6 ECHR 1950 rights he could be named in connection with the abandoned proceedings.

Administration of Justice Act 1960 – s12 – Re W (A Child) EWHC 16,  Munby J, 8/1/10 – not a breach of reporting restrictions in the Act if child name in a document which was not ‘information relating to the proceedings’.

Two expert witnesses applied for injunctions restraining publication of details of various professionals who had acted in relation to a child, W. W’s parents had brought an action against a local authority who had previously instigated care proceedings in relation to their child W. The parents sought to disapply s12 and to name certain persons. The dispute resolved around anonymity for the social workers and clinicians involved in the care proceedings. Munby J held that the professionals could be named. S12 only applied to ‘information relating to the [relevant] proceedings’ – this was regardless of the intrinsic confidentiality, or otherwise, of the documents. A child might be named in relation to facts in named documents, even if those documents had been filed in the care proceedings, if the information did not relate to those proceedings which was the case here.
The judge also rejected any general application of anonymity for professionals who had been involved in the care proceedings.
The assumption or expectation of anonymity relied on by the professionals was justified neither in principle nor in practice. The only basis was the fear or risk that if identified, they would be subject to targeting, harassment, and vilification, the consequential public interest being the drain on the already diminishing pool of experts prepared to do child protection work. Those risks were not such as to demonstrate the 'pressing need' which alone could begin to counter-balance the very powerful arguments, founded in the public interest, for denying expert witness anonymity. Such arguments in favour of identifying social workers might be somewhat less powerful but the various factors put forward did not suffice to counter-balance the arguments in favour of openness and did not establish a pressing need for a kind of protection not conferred on them by the general law or by s.12. The clinicians were in a different position but the starting point was the same: that they could not be afforded anonymity either by general law or by s.12 and had to demonstrate that the balancing exercise was in their favour, and it was not.

Administration of Justice Act 1960 – s12 – European Convention on Human Rights 1950 – Articles 8 & 10 – Wakefield City MDC v Media [2010] EWHC (Fam), Holman J, 5/2/2010 – injunction to avoid naming adoptive children where birth parents claiming they were victims of a miscarriage of justice.

Birth parents wished to speak to the media about the care and family circumstances of their three children who had been adopted. All three children had been removed at birth. The council had sought an injunction and reporting restriction restraining the media from publishing any information which might identify the children. The names and some photographs of the birth parents had already been published. The birth parents considered they had been victims of a miscarriage of justice in relation to the ‘forced’ adoptions. Holman J permitted limited publication of information about their grievances but stressed the paramount need to protect the welfare of the children and not to destabilize or disrupt the adoptive placements. He permitted the age of children in whole years and their gender to be published and family photographs which effectively obscured or disguised any identification of them. Holman J emphasized that whatever the shortcomings of the child protection system it did not serve society or the public to victimize the children in the name of exposing such actual or perceived shortcomings.