Reference: [2008] EWCA Crim 50; [2009] EMLR 3
Court: Court of Appeal (Criminal Division)
Judge: Sir Igor Judge P (of QBD), Sir Mark Potter P (of Fam), Wilson LJ, Hallett LJ, David Clarke J
Date of judgment: 1 Feb 2008
Summary: Reporting restrictions - Criminal conviction - Order to protect defendant's children - Open justice - s.11, Contempt of Court Act 1981 - s.45(4), Supreme Court Act 1981 - s.159, Criminal Justice Act 1988
Download: Download this judgment
Instructing Solicitors: Charles Collier-Wright for the appellants; CPS for the Crown; Official Solicitor for A and B, minors
Facts
Four media organisations appealed against a s.11 order purportedly made at the end of proceedings against Raymond Cortis, prohibiting his identification or disclosure of his convictions on the basis that it would lead to harm to his children who were not involved in the proceedings but at school locally. His name was given in open court throughout the proceedings. Ten days after passing sentence the Judge heard the media’s argument that the order should be discharged, adjourned to give and opportunity for representations to be made on behalf of the children, refusing to discharge the original order on 11 June 2007. The Court of Appeal directed the Official Solicitor to represent the children when giving leave and further evidence was given of risk of harm.
Issue
Whether the Judge had power to make the s.11 order and whether the order should have been made.
Held
Discharging the order,
(1) The order was made erroneously under s. 11. Unless the court deliberately exercises its power to allow a name or other matter to be withheld that section is not engaged. The matter had not formed a part of the proceedings.
(2) The Crown Court had no ‘general’ or inherent power to grant injunctions and it has no jurisdiction other than as directly linked to the exercise of its jurisdiction and statutory functions. This was the proper construction of s. 45(4) of the Supreme Court Act, which did not provide the appropriate power for the order made by the Judge as the matter did not relate to trial, conviction or sentence.
Comment
Although the appeal succeeded on the jurisdiction point, the Court indicated that the circumstances engaging Article 8 on behalf of a defendant’s children would have to be exceptional to make an inroad into the principle of open justice. Re W remains the sole case in which the High Court has ordered the identity of a defendant in criminal proceedings be restrained on the basis that their children’s Article 8 rights outweighed the media’s Article 10 rights.