Fagan, R (on the application of) v Times Newspapers Ltd & Ors [2013] EWCA Civ 1275

Case No C1/2013/1877[2013] EWCA Civ 1275
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN’S BENCH DIVISION
MR JUSTICE IRWIN
CO/9157/2012
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Monday 21 st October 2013
Before
LORD JUSTICE AIKENSLORD JUSTICE MCFARLANELADY JUSTICE SHARP
Between
R (On the application of Stephen Fagan)AppellantThe Secretary of State for JusticeRespondentTIMES NEWSPAPERS LTD, GUARDIAN NEWS & MEDIA LTD, ASSOCIATED NEWSPAPERS LTD & OTHERS ("the media groups")Interested Parties
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Hugh Southey QC (instructed by Chivers Solicitors) for AppellantDavid Pievsky (instructed by Treasury Solicitors) for RespondentVictoria Jolliffe for Interested Parties
JudgmentLord Justice Aikens :
[1]On 3 September 2013 we heard an appeal from an order of Irwin J dated 14 June 2013 whereby he dismissed the application made on behalf of Stephen Fagan, (whom I will refer to as “SF” for short but not for any anonymity purposes), that reporting restrictions be imposed in relation to the subject matter of a claim for judicial review he is bringing, during the period up to the substantive hearing of that claim. We were told that the substantive hearing would be heard in November 2013. Subsequently this was re-fixed for 12/13 December 2013. Before the hearing on Tuesday 3 September 2013 we had received helpful written submissions from Mr Hugh Southey QC, representing SF, Mr David Pievsky representing the respondent, (“the SSJ”) and Ms Victoria Jolliffe representing the Interested Parties, consisting of various press and other media groups. At the hearing we received oral submissions from Mr Southey. Having considered the matter at the conclusion of his submissions we decided that we did not require oral submissions from other counsel and that we would dismiss the appeal. We announced our decision then and said that we would supply our reasons in writing in due course. These are my reasons for dismissing the appeal.

I. The background facts

[2]On 28 February 2006 SF was sentenced to a total of 14 years imprisonment for two offences of rape and one offence of administering a drug with intent to commit an indictable offence. The offences were very serious. SF gained entry to the home of the victim (whom he knew) in the early hours of 8September 2005 and used rope and tape to tie her to her bed. He also wrapped tape around the victim’s head and mouth. Once she was restrained SF held a knife to her throat and injected a drug in her arm and then raped her twice. SF then used the victim’s mobile phone to send a text message to her partner. SF has always denied that he committed any offences. At the trial and subsequently he claimed that there was consensual sexual intercourse that night and that the woman had wished to be tied and gagged.[3]These offences took place in North East England. However, SF comes from Airdrie in Scotland. He was, in 2006, a married man with two daughters. They had continued to live in Airdrie. The offences of SF had a large impact on his family because his offending became known in Airdrie and his daughters suffered harassment and unpleasantness at school and, at times, in the community, despite the fact that, of course, they had nothing to do with their father’s crimes.[4]SF’s wife died in late 2012. Her mother died in the early part of 2013. One of SF’s daughters is now adult but the second remains a minor, being 16. In his judgment, Irwin J acknowledged See [5]. that the lives of SF’s daughters have been severely disrupted given the imprisonment of SF, the harassment and unpleasantness they then suffered and, most recently, the deaths of their mother and grandmother in quick succession.[5]SF has spent some of his custodial sentence in Scotland and some in England. In 2008 he requested a transfer to England. Then in January 2012 he requested a transfer back to Scotland. On 10 September 2012 SF reached the date of his entitlement to have automatic release on licence under the terms of section 244 of the Criminal Justice Act 2003. In March 2012 SF had requested a transfer to Scotland so that his release on licence could take place there. That transfer was refused by the SSJ in a letter dated 11 June 2012. SF was therefore released on licence in England in September 2012 and he became subject to supervision by the Northumbria Probation Trust (“NPT”). NPT was aware of the fact that SF had suggested that he intended to take his own life if his application to be transferred to Scotland were to be refused. Para 3 of witness statement of Gareth Key, probation officer with NPT, undated but prepared about 30 July 2013.[6]On 29 August 2012, that is before SF was released on licence, a claim for judicial review was issued on his behalf in the Administrative Court. It claimed judicial review of the SSJ’s decision to refuse to transfer the imprisonment of SF and his subsequent supervision on licence to Scotland. The claim alleged that this refusal was unlawful. The Application identified two issues: first whether the SSJ had misdirected himself regarding his powers; and, secondly, whether the decision was a breach of SF’s rights under Article 8 of the ECHR. In the latter respect weight was, and is, placed on the private and family interest of SF’s younger daughter, a minor.[7]Permission to bring the claim was refused on paper by Wyn Williams J on 8 October 2012. Solicitors for SF then wrote to the SSJ and the NPT on 10 October 2012 requesting transfer of the supervision of SF’s licence to Scotland. The application for Judicial Review was subsequently amended to take account of the fact that there had been a consideration of SF’s request at the Multi-Agency Public Protection Arrangements (“MAPPA”) meeting on 23 October 2012, where the Scottish authorities had (it was said) declined to accept the transfer.[8]On 14 February 2013 there was an oral hearing before Underhill J at which SF renewed his application for permission to bring his Judicial Review claim. Underhill J granted permission. The substantive hearing is due to take place on 12/13 December 2013. An application was made to Underhill J for an order anonymising the claimant in any reporting of the proceedings. That application was adjourned to the judge who would hear the Judicial Review claim. As Irwin J put it in his judgment: At [7]. “…[Underhill J’s] expectation was that no harm would be done by the adjournment and that only the grant of permission would be reported. Regrettably that turned out not to be the case”. II. The events giving rise to the application before Irwin J for reporting restrictions.[9]On 20 February 2013 the Airdrie and Coatbridge Advertiser ran a sensationalist and partly inaccurate article about SF’s attempts to be resettled in his home town. It was given a large, prominent headline on the front page and a large block of text on page 2. There is a photograph of SF with the headline. As Irwin J put it, it was clear from the content of the article that it was, in part, inspired by a local councillor who wants to prevent SF’s return to Airdrie. Presumably the councillor wants SF to remain in England. Amongst other things, the councillor was quoted as saying, wrongly, that SF had been charged previously with “molesting young girls”. The newspaper was subsequently obliged to correct this egregious error, but the correction and apology were set out in small type on page 2 and only six weeks later, on 3 April 2013.[10]On 18 March 2013 SF renewed his application for anonymity. Underhill J adjourned the application but made an interim order as follows: “In the listing of the application the Claimant will be identified as SF; pending that hearing no person may publish any details likely to lead to his identification as the person making the application or bringing the substantive claim”.[11]The claimant’s two daughters submitted witness statements which indicated clearly the considerable impact that the reporting had made on their lives. They supported their father and wanted him to return to Airdrie. One daughter felt unable to visit her mother’s grave as result of the publicity. The daughters’ grandmother, very unwell at the time, was also deeply distressed.[12]On 26 April 2013 the Chief Executive of the NPT wrote a letter to SF’s solicitors in response to an application for a change of transfer of his supervision to Scotland. The letter stated that, in making this decision, two criteria had to be borne in mind; first, did the offender have close family or residential ties in the place he wishes to resettle and, if the answer to that question is “yes”, then, secondly, would the protection of the public (including victims), reduction of the risk or re-offending and rehabilitation of the offender be undermined by such resettlement? The letter answered both questions positively, thus signalling that the NPT had changed its stance. The letter concluded that it would now approve a transfer to Scotland on the basis of five conditions being met. These were:(1) stable, secure, approved and risk assessed accommodation being agreed in advance;(2) sex offender registration continuing;(3) licence conditions remaining in place with amendments to reflect the change in circumstances;(4) MAPP arrangements continuing; and(5) an unrestricted transfer being agreed in advance.[13]The letter elaborated three matters in particular. First, that the suitable, stable, approved and risk assessed accommodation was both essential and had to be approved by the Scottish authorities in accordance with the National Accommodation Strategy for sex offenders in Scotland, which would involve approval by the North Lanarkshire Council and Scottish Police. It noted that when placing SF in accommodation, “consideration should be given to the adverse publicity in the local press and public reaction”. Para 7.1.1 of the letter. Secondly, it considered that, given the strength of attitude and opinions about sex offending, SF could be at direct risk of physical harm himself “through reprisals”; it also noted that his family and the wider community might be caught up in this. It noted that one daughter had been previously described as “emotionally vulnerable”. It concluded that “any adverse interest or behaviour regarding [SF] might draw further attention to the family and have implications in terms of emotional, psychological or physical harm”. Thirdly, rehabilitation could be undermined by three matters in particular: the lack of stable, suitable and approved accommodation; publicity, adverse interest and “vigilante action” which could cause SF to disappear or “disengage”; and, lastly, adverse publicity, which was relevant to risk and had to be taken into account, eg in the Scottish authorities’ approval of accommodation.

III. The judgment of Irwin J

[14]On 10 May 2013 Irwin J heard SF’s application for the introduction of reporting restrictions pending the judicial review hearing. He reserved judgment and handed it down on 14 June 2013. Having set out the facts, which I have attempted to summarise above, he referred to the law. He noted that it was agreed between counsel that the facts required a consideration of two sets of rights set out in the ECHR: the Article 8 rights of SF and his daughters and the Article 10 rights of the public, press and other media, neither of which was absolute and neither of which had a priori precedence over the other. The rights had to be balanced according to the facts of the case. Irwin J summarised the arguments of the parties and quoted relevant passages from the Practice Guidance (Interim Non-Disclosure Orders [2012] 1 WLR 1003 ). This emphasises that “open justice is a fundamental principle” and states, in paragraphs 9, 10 and 14: Paragraph 9:
“It is clear that derogation from the general principle can only be justified in exceptional circumstances, when they are strictly necessary as measures to secure the proper administration of justice. They are wholly exceptional…derogations should, where justified, be no more than strictly necessary to achieve their purpose”
. Paragraph 10:
“Further, the burden of establishing any derogation from the general principle lies in the person seeking it. It must be established by clear and cogent evidence”
.

Paragraph 14 stipulates:

“When considering the imposition of any derogation from open justice, the court will have regard to the respective and sometimes competing convention rights of the parties as well as the general public interest and open justice and in the public reporting of court proceedings. It will also adopt procedures which seek to ensure that any ultimate vindication of article 8 of the Convention, That is the European Convention on Human Rights. where that is engaged, is not undermined by the way in which the court has processed an interim application. On the other hand, thee principle of open justice requires that any restrictions are the least that can be imposed consistent with the protection to which the party relying on their article 8Convention Right is entitled…”
. Paragraph 9: Paragraph 10: Paragraph 14 stipulates:[15]Irwin J concluded that he should not make any order that went beyond the substantive hearing in November 2013. He recognised that withholding anonymity would permit an active campaign in the media in Airdrie and Lanarkshire to prevent any attempt to resettle SF with his daughter, certainly within Airdrie and most likely within North Lanarkshire. Irwin J regarded it as “certain” that this campaign might involve “very considerable” public hostility to SF, but that was a natural consequence of his offending. It was possible that it could involve some hostility to his daughters and there was a risk that it might inhibit the resettlement of SF “with or near his neighbours”. Irwin J also recognised the legitimate public interest in the “constitutional issue” raised by the case, viz. the general issue of where and how serious offenders should be resettled, particularly where they have families. He concluded that even if the case were anonymised and there were reporting restrictions (in advance of the principal hearing) there would be immediate (and accurate) speculation in Airdrie that it concerned this very case. Irwin J said:
“To prevent any reporting, where there has already been publicity and where there is a genuine point with some constitutional implications, would be a large step…particularly so where, as here it is quite likely that the undesirable consequences of publicity will develop at some stage, whatever order is made”
. At [37][16]Irwin J concluded that “the imperative of open justice should prevail”. So he declined to order either anonymisation or any reporting restrictions, whilst hoping that any ensuing publicity would not deflect the authorities from making the correct decisions in the case. At [38][17]Permission to appeal was granted on paper by Sir Stanley Burnton on 17 July 2013.

V. Subsequent developments

[18]SF was asked by NPT to provide it with potential addresses in Scotland to facilitate his return there. The addresses supplied were unsuitable. In June 2013 he supplied one (albeit temporary) address which the Scottish authorities regarded as acceptable both as a temporary one and also, potentially, as a permanent one. However, SF was apparently angry at this and told Mr Gareth Key, the probation officer of the NPT who was responsible for the management of SF’s sentence, that Mr Key would be “answerable to the coroner”, which made Mr Key anxious, given SF’s previous indications of suicidal intent. SF was detained at a hospital under the Mental Health Act. He caused significant damage in a “seclusion room” and threatened to harm the staff.[19]SF was recalled to prison on 3 July 2013, pursuant to section 254 of the Criminal Justice Act 2003, as amended by the Criminal Justice and Immigration Act 2008 and the Legal Aid, Sentencing and Punishment of Offenders Act 2012. I shall refer to the 2003 Act as amended as “the CJA”. Section 254 provides: “(1) The Secretary of State may, in the case of any prisoner who has been released on licence under this Chapter, revoke his licence and recall him to prison. ….. (6) On the revocation of the licence of any person under this section, he shall be liable to be detained in pursuance of his sentence…”.[20]The reason for SF’s recall was because of the “clear deterioration of his mental well-being and his inability to manage himself [and]..the significant damage caused by SF [in the hospital] and the threats he had directed towards mental health staff who were there attempting to assist him”. Key witness statement para 16.[21]On 17 July 2013, SF’s daughter told Mr Key that SF had indicated that he was now prepared to move to the address that had been suggested as a permanent base for him in Scotland. It is clear from the terms of the last paragraph of Mr Key’s witness statement, made at the end of July 2013, that he finds it difficult to comprehend SF’s frame of mind; that SF appears reluctant to work with staff in addressing his behaviour and that SF appears unwilling to accept responsibility for his offences. He concludes:
“As such, no work was completed around this area that would seek to address the thinking and attitudes that appear to underpin his offence”
. Key witness statement para 21.[22]At the hearing on 3 September 2013, Mr Hugh Southey QC, counsel for SF, informed us that the procedural position was that because SF was not considered eligible for automatic release pursuant to section 255A(2) of the CJA, therefore SF was not eligible for automatic re-release after 28 days. His release was therefore governed by section 255C. SF had made representations to the Parole Board before the expiry of the 28 day period and the Parole Board had upheld the recall. Under section 255C(2), (3) and (4), although the Secretary of State may, at any time, re-release SF on licence, that is subject toSF’s case being considered by the Parole Board and the Secretary of State has to be satisfied that it is not necessary for the protection of the public that SF should remain in prison. Mr Southey told us that there was a pending application by SF to the Parole Board. It would make an initial review on paper and if re-release is not then recommended there would be a hearing thereafter. Mr Southey could give us no indication of the time scale involved, but accepted that neither procedure was likely to take place before the scheduled substantive judicial review hearing, which was then thought to be on 19 November 2013.[23]We were also informed at the hearing by Mr David Pievsky, counsel for the Secretary of State for Justice, that a decision on SF’s application for a transfer to a Scottish prison was imminent and that the views of the Scottish authorities would be sought by the Secretary of State if and when the issue of re-release on licence became relevant again. We asked Mr Pievsky to keep the court informed of any further developments.[24]On 26 September 2013 the Treasury Solicitor wrote to the court, enclosing a letter to SF, dated 19 September 2013, from the National Offender Management Service. This stated that his application for transfer to Scotland had been approved by the SSJ in conjunction with the Cabinet Secretary for Justice in Scotland. SF had to consent to the proposed transfer. The transfer would be “on a restricted time basis” of 12 weeks. This would enable the Scottish authorities to continue to work with SF in order to find a “suitable post-release address” and to enable him to have visits from his daughters. The position would be reviewed after the 12 week period. The letter also stated that the issue of SF’s release from prison would be for the Parole Board of England and Wales to determine and that any post-release supervision would be governed by the rules and regulations concerning prisoners in England and Wales.[25]The Treasury Solicitor’s letter did not indicate whether or not SF had accepted this offer of a transfer. However it did indicate that the Treasury Solicitor had written to SF’s solicitors inviting them to discontinue the judicial review proceedings which were “now plainly academic”. VI. The arguments of the parties.[26]Mr Southey had submitted at the hearing that, notwithstanding the recall of SF to prison, the judicial review hearing would go ahead and the principal legal issue to be argued would be whether the English or the Scottish authorities had the ultimate decision making power as to where SF would be released on licence. With regard to reporting, Mr Southey referred us to the Practice Guidance (Interim Non-Disclosure Orders), [2012] 1 WLR 1003 in particular paragraphs 9, 10 and 14 which I have set out at [14] above. Mr Southey submitted that there were three reasons in this case why there should be a derogation from the principle of “open justice” on an interim basis until the judicial review hearing. First, because there was a significant danger that any reporting in this case would take the form of a media campaign which was “calculated to undermine the lawful progress of a prisoner towards rehabilitation and eventual release” and that would undermine the rule of law. Mr Southey relied upon R(M) v The Parole Board, Secretary of State for Justice (interested party) and Associated Newspapers and others (interveners) [2013] EWHC 1360 (Admin) at [45] per Pitchford LJ giving the judgment of the court (Pitchford LJ and Simon J). Secondly, because it was necessary to consider not only the Article 8 rights of SF but also those of his daughters, particularly his minor daughter. The decision affected her and, because she was a minor, a “primacy of importance must be accorded to her best interests”. Mr Southey relied on ZH(Tanzania) v SSHD [2011] 2 AC 166, in particular the remarks of Lord Kerr of Tonaghmore JSC at [46] which I have quoted. Mr Southey submitted that the judge had erred because the best interests of the minor daughter clearly favoured reporting restrictions and there were no “countervailing reasons of considerable force” Lord Kerr’s phrase in the same paragraph. to displace that conclusion. Thirdly, it was clear that the probation service itself was concerned about the effect of reporting on both SF’s family and on his likelihood of engaging in the rehabilitation process. Mr Southey’s overall submission was that the judge had not had proper regard for all these factors in exercising his judgment not to make an order for reporting restrictions. The consequence was that during the period before the judicial review proceedings, the procedure adopted would fail to “…ensure that any ultimate vindication” of [SF’s] Article 8 rights were not undermined.[27]In his written submissions on behalf of the Secretary of State, Mr Pievsky emphasised three points. First, SF’s name was already in the public domain. Therefore, making an interim order banning reporting and imposing “anonymity” would not make any difference; thus there was no justification for making the proposed order. Secondly, the seriousness of the appellant’s offending was an important factor weighing against imposing restrictions on reporting. A person who committed a serious sexual offence with violence could not have a reasonable expectation that his identity after conviction and imprisonment would remain secret. Thirdly, as the appellant had now been recalled to prison, there was even less justification to derogate from the general principle of “open justice”. It could no longer be assumed that there would be any adverse media campaign at all.[28]On behalf of the press and media, Miss Jolliffe stated in her written submissions that the judge gave proper consideration and weight to both the risk of press reports and so hostility on SF’s daughters, particularly the younger one; and also the danger that publicity might undermine the ability of SF to achieve the remedy he sought in the substantive proceedings. Miss Jolliffe emphasised the fact that there had already been a trial in public and that there was a likelihood that SF’s (and his daughters’) Article 8 rights would be infringed, whether or not reporting restrictions were imposed. Lastly, Miss Jolliffe submitted that the judge must have proceeded on the assumption that resettlement of SF was in the best interests of his minor daughter, although that point had not been specifically argued before the judge.

VII. Conclusions

[29]The position of SF is that he is detained (probably now in a Scottish prison) and there is no likelihood of his immediate release. In that respect it is different from the situation that existed when the matter was before Irwin J. But there must be the same starting point, which is the general principle of open justice and the proposition that the burden of establishing a derogation from that general principle lies on the person seeking it. The court will only agree to a derogation if there is clear and cogent evidence which establishes that such a derogation is strictly necessary in the interests of justice.[30]In my view there is nothing in the position of SF himself as an offender which could justify any derogation from the general principle. He has been convicted of very serious crimes. His trial was public and his conviction and sentence were public knowledge. It would be known to the public that after he had served half his sentence in prison, he would be released on licence and under the management of the probation service. In those respects SF’s position is no different from any other prisoner. Many defendants convicted of serious crimes also have wives or partners and children; they are often young children. The possibility of a hostile reaction against the family of an offender who has committed a serious sexual or violent offence must be general. Again, in that respect, SF is in no different position from other serious offenders who must be released at some stage if they have been given a determinate sentence.[31]Therefore something particular has to be found in the circumstances of this case to justify a derogation from the general principle. As Lord Hoffmann stated at [7] of the judgment of the Supreme Court in Secretary of State for the Home Department v AP(No2), [2010] UKSC 26. the answer to whether there will be a derogation from the general principle will depend on the facts of a particular case. In my judgment the fact that SF wished to be released in Scotland as opposed to England is not material. The same type of hostile press campaign and attempt to apply the pressure of public opinion might be attempted (although never, I hope, with the aid of inaccurate or “inventive” reporting) in trying to ensure that an offender is not released in one particular community rather than another within England. That factor cannot be a justification for a derogation from the general rule of open justice, even if, arguably, that would impinge on the offender’s Article 8 rights. I would add that there is no question in this case of any “real and immediate” threat of violence to either SF or his daughters, whether as a result of any press campaign or otherwise; so there is no threat of a violation of their Article 3 rights. This was accepted by Mr Southey before the judge: see [21].[32]Similarly, a hostile press might affect the manner in which the offender co-operates with his licence managers and might inhibit the resettlement of SF with or near his daughters. Again that is a risk that is likely to be present in many cases where serious offenders are released on licence into the community. It cannot be a general justification for banning reporting about the offender and his possible release generally. The danger in this case had been noted by NPT, but was fully appreciated by the judge and he took it into account when he came to make his balancing exercise.[33]Lastly, there is the factor of the Article 8 rights of SF’s minor daughter. As the judge pointed out at [20] of his judgment, the daughters of SF have already been identified in press reports. Any reporting restrictions (such as anonymisation or a total ban) would not stop speculation in Airdrie or South Lanarkshire about whether and if so when SF was to be released into their community, thus possibly further affecting the daughters’ rights. The judge clearly had this in mind in his remarks in [37] and [38] of his judgment and so must have had that in mind when making his decision.[34]The judge had to take account of all relevant factors when deciding whether there should be a derogation from the general rule of open justice. In my view he did so and, in my judgment, it cannot be said that he considered any irrelevant factors. The result that he came to was a reasonable one, namely, that in all the circumstances “the imperative in favour of open justice” must prevail. For these reasons I was in favour of dismissing the appeal. Lord Justice McFarlane:[35]I agree.

Lady Justice Sharp:

[36]I also agree.

Cited in 1 later judgment