Full case report

Surrey County Council v ME

Reference [2014] EWHC 489 (Fam)
Court High Court (Family Division)

Judge Keehan J

Date of Judgment 4 Mar 2014


Summary

reporting restriction order – identification – children – identity of defendant in criminal proceedings – human rights – Article 8 ECHR – Article 10 ECHR


Facts

The applicant local authority sought a reporting restriction order (“RRO”) in relation to the respondent parents and their five children who were the subject of ongoing care proceedings. The children were GE, who was 16, JE who was 14, JT, who was 10, NT who was 5 and CT, who was 2. The mother of all five children was the first respondent, ME. The father of the older two young people was the second respondent, GYE. The father of the three younger children was Neil Tulley.

On the night of 12-13 August 2013, Neil Tulley was killed by Joshua Ellis, the son of ME, and his brother JE. Both were charged with murder. Both defendants indicated that they would guilty to manslaughter, but this was not accepted by the prosecution and the murder trial continued. In the light of the pleas and publicity surrounding the case the judge discharged the order under section 39 Children and Young Persons Act 1933 prohibiting the identification of JE. The local authority sought a RRO in relation to all five children, the mother and GYE, arguing that identification of the children would put them at risk of suffering distress and emotional harm.

 Five media organisations namely Associated Newspapers Ltd, the BBC, the Press Association, Times Newspapers Ltd and Trinity Mirror plc strongly opposed the RRO.


Issue

  1. Whether the court should make a RRO in respect of JE given his status as a defendant in criminal proceedings.
  2. Whether the court should made a RRO in respect of ME and GYE.
  3. Whether the court should make a limited RRO in respect of the other four other children.

Held

The seminal case on the approach to be adopted in such cases – Re S (a child) (Identifications: Restriction on Publication) [2005] 1 AC 593 – required an intense focus on the comparative importance of competing rights under Articles 8 and 10 of the European Convention on Human Rights. Neither Article had presumptive weight over the other and the proportionality test had to be applied to each.

Whilst the evidence presented to a court in support of a RRO could be speculative to some degree, Swansea x XZ and YZ [2014] EWHC 212 (Fam) considered, evidence that was pure speculation only would not be sufficient or adequate to provide an evidential basis to establish the absolute necessity for making an RRO nor to establish the truly exceptional nature of the facts of a case.

 The local authority’s assertion that the older three children (GE, JE and JT) would be at risk of suffering distress if they were identified as a result of reporting of the criminal case was not, of itself, sufficient to justify the making of the RRO, and in any event, was not sufficiently substantiated in terms of the degree and nature of the harm or risk of harm. It also contained no reference to any potential adverse consequences of reporting on the criminal trial in respect of the two younger children.

1.    No RRO made in respect of JE

There were particularly strong and compelling arguments against any restriction being placed on JE’s criminal trial, namely (i) the importance of open justice in relation to serious criminal behaviour; (ii) the entitlement of the public to know who is responsible for such behaviour and (iii) the significantly reduced impact on the public of a story without a face and name.

A restriction on reporting the identity of a defendant to criminal proceedings could only be contemplated where there was an absolute necessity and where the circumstances could properly be described as exceptional, A Local Authority v M and Others [2012] EWHC 2038 (Fam) applied.

JE was plainly a very troubled and vulnerable young person who was most likely to be sentenced to a lengthy period of detention. Given the enormity of the consequences for JE resulting from his conviction and sentence, the greater additional harm caused by reporting of his criminal trial and process would not be so great as to cause the balance to fall in favour of his Article 8 rights against the powerful and compelling Article 10 rights of media organisations to report on a criminal trial held in public.

 2.    No RRO made in respect of ME and GYE

ME and GYE had each acknowledged the difficulties in their respective cases to be included within the terms of a RRO restricting the identification of either of them. The background history of the family and the dysfunctional nature of the same was an important feature of the Crown’s case in the criminal trial. There was considerable force in the media organisations’ submissions that (i) GYE had given evidence at the criminal trial and had been named in the media on 18 February; (2) the Ellis name was in the public domain already and (3) that in such circumstances, the naming of ME and for GYE would not lead to or increase the risk of the other children being identified.

The Article 8 rights of the parents did not prevail over the Article 10 rights of the media. The facts of the case were unusual and sensational but not exceptional. They were far from sufficient to outweigh the plain and substantial interference with the right of the media organisations to identify JE and the parents and to report the current criminal proceedings, A Local Authority v PD [2005] EWHC 1832 (Fam) applied.

3.    No limited RRO made in respect of the four children

The evidence before the Court did not support a finding that the balance fell in favour of the four children’s Article 8 rights:

i)              Even a limited RRO was a Draconian order which was not to be made routinely on the basis that it might help protect the children. It still had to pass the high hurdle for granting a RRO.

ii)             The media organisations had submitted that they did not intend to name the four children.

iii)            Despite the widespread coverage of the case in the media to date, none of the four children had been named.

iv)           The Editor’s Code of Conduct prohibited interviewing or photographing the four children in the circumstances of this case without parental consent, which would not be given.

v)            The mere fact that some irresponsible media organisations might not take the ethical and principled approach of the five media organisations represented at the hearing did not justify the making of a RRO.

vi)           There was a very real risk that a limited RRO in favour of the four children may inhibit media organisations from reporting the criminal trial and/or from identifying JE, ME or GYE out of an abundance of caution or for fear of inadvertently reporting matters which would lead to the identification of the children.

vii)          The risk, absent a RRO, of the 4 children being identified by the media was very low.


Comment

The decision is a clear reminder of Peter Jackson J’s observation in A Local Authority v M and Others [2012] EWHC 2038 (Fam) that 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. The courts will only make a RRO where it is an absolute necessity to do so. In all other circumstances, the principle of open justice will prevail.


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Instructing Solicitors

Surrey County Council for the Applicant, Blackfords LLP for ME, Blavo & Co for GYE, Russel-Cooke for GE, JT, NT and CT, Creighton & Co for JE, Associated Newspapers Ltd, the British Broadcasting Corporation, the Press Association, Times Newspapers Ltd and Trinity Mirror Plc for the Eight Respondent