Full case report

Re W

Reference [2005] EWHC 1564 (Fam); [2006] 1 FLR 1; The Times, 21 July 2005
Court Family Division

Judge Sir Mark Potter P

Date of Judgment 14 Jul 2005


Summary

Criminal trial – Injunction to restrain identification of defendant and victim – Children – Non-parties – Privacy – Article 8 – Freedom of expression – Article 10


Facts

A local council applied to restrain publication of the identity of a defendant and her victim in a criminal trial in order to protect the privacy of two children (who were not involved in the trial but were the subject of care proceedings). The defendant was the children’s mother, who was HIV positive and who had pleaded guilty to a charge of knowingly infecting a man (one of the children’s fathers) with the virus. The mother suffered abuse and harassment from her local community when her condition became known. There was speculative evidence that the children may suffer similarly if their mother’s condition became more widely known.


Issue

Applying Re S, whether, considering the conflicting Article 8 and Article 10 rights at play, an injunction to restrain publication of the identity of the defendant and her victim ought to be granted.


Held

Granting the injunction: Both Articles 8 and 10 were engaged. Despite the undoubted importance of the freedom of the press to report criminal trials, neither Article had any presumptive priority. This case had significant features which distinguished it from Re S: there had been less previous publicity, so that the injunction was more likely to isolate the children from the fall out of the case; a refusal to grant the injunction may have prejudiced future care arrangements for the children; and the long-term damage to the children would be due to an attribution of AIDS rather than the knowledge that their mother is a criminal. These factors militated in favour of recognising and supporting the children’s Article 8 rights over the Article 10 rights of the press, and granting the injunction.


Comment

A decision likely to disappoint the media. Here, a likelihood of a clearly erroneous assumption (that the children would be infected by AIDS), combined with irrational prejudice (that would lead to foster carers and schools refusing the children, and their being harassed) was held sufficient to outweigh what the President accepted was the important public interest in the media being able to fully report criminal cases. Applicants for reporting restriction orders should heed the warning about the need to abide by the Practice Direction and Practice Note.


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Media must be told of injunction applications - 5RB