Part 1 of reporting restrictions concerning children in the criminal courts, the family courts, and the space in between.
Freedom of press versus the right to privacy. This is the question that reporting restrictions usually come down to. For family practitioners the quick answer would appear to be “whatever is in the best interests of the child.” Surely this is the right answer?
Family practitioners (myself included) are not used to proceedings were the child welfare is the centre of nearly of decisions. Maybe, some of us even get a little thrown off course when the child’s best interests are not the determinative factor?
Well, buckle up; this 2 part series will take you on a whistle stop tour of the test in the criminal court, the test in the family court, and, the space in between.
Reporting restrictions; what are they?
“Reporting Restrictions” is a catch all terminology used to describe orders made in the High Court using the Inherent Jurisdiction where existing legislation does not afford the protection required to a child.
Reporting restriction orders can be made in the family court or the criminal court.
Part 1 of this series commences with considering the criminal court provisions.
Criminal Court
In criminal proceedings, s.45 of the Youth Justice and Criminal Evidence Act 1999 permits the court the discretionary power to make orders that prohibit matters concerning a person under the age of 18 “concerned in the proceedings.” A concerned person is a witness, defendant or victim.
The types of matters that can be withheld from publication to prevent identification are: (a) name, (b) address, (c)the identity of any school or other educational establishment attended, (d) the identity of any place of work, and, (e)any still or moving picture. S.63 of the YJCEA defines publication as any speech, writing, relevant programme or other communication in whatever form which is addressed to the public at large or any section of the public. This wide definition therefore includes any posts on social media, including Facebook, Twitter etc.
Therefore, these proceedings only protect victims, defendants or witnesses in criminal proceedings. If a young person does not fall under any of the 3 categories, protection will have to be sought elsewhere.
In the recently published case of B, R & G (a Child) [2022] EWHC 320 (Fam) (published on 28 January 2022), the court was invited to invoke the inherent jurisdiction in order to protect a young person’s identity in proceedings concerning the prosecution of both parents concerning the death of the. Young person’s sibling.
Mrs Justice Judd summarised the legal principles swiftly in B, R & G (a Child) [2022] EWHC 320 (Fam) published on 28 January 2022.
Re S (A Child) [2005] 1 AC 593 set out the test for restricting the identity of a defendant from publication. This was summarised in Re A (A Minor) [2011] EWHC 1764.
The correct approach is the balancing of the competing article 8 (right to private life) V’s article 10 (right to freedom speech). Paragraph 17 of Re S set out;
“First, neither article, has, as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each”.
Paragraph 18 goes on to explain the duty of the court in determining the lead interests;
“that the press, as the watchdog of the public, may report everything that takes place in a criminal court. I would add that in European jurisprudence and in domestic practice, this is a strong rule. It can only be displaced by unusual or exceptional circumstances. It is, however, not a mechanical rule. The duty of the court is to examine with care each application for a departure from the rule by reason of rights under article 8”.
In B, R & G (a Child) [2022], the Local Authority applied to invoke the inherent jurisdiction seeking orders to prevent details in respect of the young person deceased sibling and parents from being published to prevent the relevant young person being identified. The Local Authority’s primary reasons were:
i. It would be contrary to G’s interests to be identified in the community as a child whose parents are subject to murder charges.
ii. There is a long term risk of identification given her distinctive name.
iii. If an adoptive care plan is pursued, the risks associated with publicity may deter prospective adopters from putting themselves forward.
iv. Life story work may be compromised if she is able to read press coverage about her sibling’s death in an uncontrolled manner, and
v. As she is one of very few twins in the area she lives in who has experienced the death of a sibling, this enhances the risk of identification.
The media groups opposed the making of such orders on the following basis:
i. that tragic though they are, the circumstances are not exceptional and to make an order in these circumstances would be contrary to established authority.
ii. There is a strong imperative to permit full, contemporaneous reporting of the criminal proceedings.
iii. Without being able to name the defendants and/or the deceased child the trial would be rendered faceless and devoid of human interest.
iv. The fact that the provisions of the Children and Young Persons Act 1933 did not extend to protecting a child in G’s position had been considered in Re S, where the decision by Parliament to limit the reach of the Act was considered to be significant.
v. An injunction in this case would mean that reporting restrictions would be applicable in most similar cases relating to children.
The court considered 2 examples at paragraphs 22 and 23;
22. I note the facts in the two cases brought to my attention where injunctions were made prohibiting reporting of the names of defendants. In both of them the facts were very distinctive. In A v M, the defendant was charged with cruelty, having arranged for the insemination of her eldest adopted daughter when she was 16 with a view to bringing up the resultant child as her own. The other members of the family were girls aged 17 and 7, and the eldest daughter’s infant child. The judge found that there was a substantial risk of identification if the mother’s name was reported, given the community that the family were living in. The girls had a distinctive appearance in an area which was not ethnically diverse. The details of the case involved extremely intimate matters for the eldest girl, and the judge had expert evidence about her fragile emotional state. He also considered the position of all the other children and came to the conclusion that the probable consequences for the younger family members would be at best harmful and at worst disastrous.
23. In A v W, Sir Mark Potter made such an order in a case where the mother was facing trial on a charge of knowingly infecting the father of one of the children with HIV. This was in 2005, and the effect upon the mother of her HIV status becoming known had been profound, and, as the judge found, causing the family to have to leave their home. The trial was likely to attract wide publicity and at that time, there was a great fear that the children would be shunned in the local community and be driven from nursery.
The balancing exercise was conducted and ultimately the court refused the application, with the rational set out at paragraph 24;
24. Balancing the competing rights under Articles 8 and 10, I have come to the clear conclusion that I must refuse the application to prohibit reporting of the names of either of the defendants or of the deceased in the criminal proceedings. The name of a child who has allegedly been killed is an important part of any report in the media, as are the names of the defendants. Without any of those names, I agree with Mr. Bunting that the trial would become ‘disembodied’. An order prohibiting the identification of any of them would have a profound effect upon open justice in what is a significant trial and create a precedent for other cases like it. I do not think the situation can be compared to that if, for example, E had been the subject of an attempted murder and had lived. The provisions of s45 Youth Justice and Criminal Evidence Act 1999 would be there in those circumstances to protect her as the victim of that alleged crime.
TAKE AWAY POINTS:
1. In criminal proceedings, reporting restrictions may be imposed in respect of a young person (under the age of 18) if the young person is a defendant, victim or witness
2. Any application to restrict the publication of material concerning an adult within criminal proceedings that might lead to the compromise of or identification of a young person must be made in the High Court and will be considered in the Family Division.
3. The young person’s best interest are not paramount
4. The test is the balancing of the article 8 rights of the young persons and the article 10 right to freedom of speech and public interest.
Kerri O’Neill regularly provides advice to Local Authorities in respect of reporting restrictions of young people in family and criminal proceedings, drafting orders/ skeleton arguments and appearing in the High Court in the North West in such applications. If you have a case concerning a young person that Kerri can assist with, please contact our Practice Manager Eve Humphries.
Written by Kerri O’Neill, Senior Consultant Barrister, Unit Chambers.