Reference:  EWHC 854 (Admin); The Times, 20 February 2008
Court: Administrative Court
Judge: Thomas LJ & Dobbs J
Date of judgment: 8 Feb 2008
Summary: Reporting restrictions - Children - Children and Young Persons Act 1933 - Article 8 ECHR - Costs
The Magistrates’ Court and the Inner London Crown Court had imposed orders under s39(5) of the Children and Young Persons Act 1933 prohibiting any publication which might lead to the identification of the Appellant’s (C) children who were the “victims” in the proceedings against C. This had the practical effect of preventing publication of any matter relating to C’s prosecution and conviction in relation to two criminal offences. The orders were appealed.
(1) Did the court have the jurisdiction to impose such an order?
(2) Should the media applicants be awarded costs?
(1) In the light of R v Croydon Crown Court, ex parte Trinity Mirror plc & Ors, there was no power to make the orders. Whether s39(1)(a) could be read so as to include victims was left open. It was not necessary to consider the position had proceedings been brought in the family court – that issue should be assumed in C’s favour. C should be treated no differently from others convicted of a criminal offence. This was not an exceptional case, there was no evidence of particular harm to the children beyond “the considerable embarrassment that may be felt in the playground or elsewhere” and this was an “unfortunate consequence” of C being convicted. The public profile of C was not a material consideration.
(2) On the facts no costs order would be made but in future cases if a defendant seeks to invoke a reporting restriction order wrongly, and costs are incurred, D should be liable for those costs.
Thomas LJ’s observation that “the public profile of a person is not a material consideration” and that “the public position comes into the account neither on one side or the other.” appears at odds with the intense factual analysis which is usually carried out when considering Article 8/10 ECHR issues. Such an absolute disavowal of the relevance of, for example, the fact that a defendant holds public office, when considering whether to order a reporting restriction appears inconsistent with the approach of the courts to freedom of expression, in particular the weight given to genuine public interest, in other arenas.