Media must be told of injunction applications

Family Division President emphasises new notification procedures and requirements

by Mike Dodd, Media Lawyer

Lawyers acting for children and local authorities must heed the need to notify the press and media when applying for injunctions which will inhibit reporting of issues involving children and incapacitated adults, the President of the Family Division of the High Court has warned.

Sir Mark Potter gave the warning as a footnote to his judgment in Re W, the case of an injunction which banned the press from naming a woman who had admitted causing her then partner grievous bodily harm by knowingly giving him HIV.

He referred to the Practice Direction and Note issued on 18 March 2005 by his immediate predecessor, Dame Elizabeth Butler-Sloss.

“The Direction applies to any application in the Family Division founded on Convention Rights for an order restricting publication of information about children or incapacitated adults,” Potter P said.

“However, it is of particular importance in a case where, despite the strong reminder in Re S to respect the freedom of the media fully to report criminal proceedings and in particular to identify the defendant, it is thought appropriate to make an application for the protection of a child on the grounds that the circumstances are exceptional and compelling.

“Such cases raise sensitive issues and, almost by definition, arise in cases of serious crime where there is high press and public interest in the criminal proceedings.”

The Practice Direction was specifically designed to make sure that applicants and the courts complied with the requirements of s.12(2) Human Rights Act 1998. s.12(2) provides that a court must not grant an injunction restricting the right to freedom of expression if the person against whom the application is made is neither present nor represented unless the court is satisfied either that the applicant has taken all practicable steps to notify the respondent, or that there are compelling reasons why the respondent should not be notified.

“For that reason, whereas it will almost invariably be practicable and appropriate to give notice, however short, to the local press in a case of high public interest, the Direction draws attention to the same ability to notify the national news media by service of notice of such applications via the Press Association’s CopyDirect service, to which national newspapers and broadcasters subscribe as a means of receiving notice of such application.

“The Direction provides that service of applications via the CopyDirect service should henceforth be the norm. It is necessary to emphasise, as the Direction provides, that, whereas the court retains the power to make without notice orders, such cases should be exceptional.”