“publishing information relating to any part of a hearing in a court in England and Wales (including a coroner's court) in which the court was sitting in public and did not itself make any order restricting publication;”
“In our judgment it is impossible to over-emphasise the importance to be attached to the ability of the media to report criminal trials. In simple terms this represents the embodiment of the principle of open justice in a free country. An important aspect of the public interest in the administration of criminal justice is that the identity of those convicted and sentenced for criminal offices should not be concealed. Uncomfortable though it may frequently be for the defendant that is a normal consequence of his crime. Moreover the principle protects his interests too, by helping to secure the fair trial which, in Lord Bingham of Cornhill's memorable epithet, is the defendant's "birthright". From time to time occasions will arise where restrictions on this principle are considered appropriate, but they depend on express legislation, and, where the Court is vested with a discretion to exercise such powers, on the absolute necessity for doing so in the individual case. It is sad, but true, that the criminal activities of a parent can bring misery, shame, and disadvantage to their innocent children. Innocent parents suffer from the criminal activities of their sons and daughters. Husbands and wives and partners all suffer in the same way. All this represents the further consequences of crime, adding to the list of its victims. Everyone appreciates the risk that innocent children may suffer prejudice and damage when a parent is convicted of a serious offence … If the court were to uphold this ruling so as to protect the rights of the defendant's children under Article 8, it would be countenancing a substantial erosion of the principle of open justice, to the overwhelming disadvantage of public confidence in the criminal justice system, the free reporting of criminal trials and the proper identification of those convicted and sentenced in them. Such an order cannot begin to be contemplated unless the circumstances are indeed properly to be described as exceptional.”
“First I recognise the primacy in a democratic society of the open reporting of public proceedings on grave criminal charges and the inevitable price that that involves in incursions on the privacy of individuals. Secondly, I recognise that Parliament has in a number of statutes qualified that right to report and, in the context of this case, most notably in section 39 of the 1933 Act; where a set of circumstances arise not covered by those provisions the court should in my judgment be slow to extend the incursion into the right of free speech by the use of the inherent jurisdiction. Thirdly, I have to recognise that not even the restrictions contended for here offer real hope to CS of proper isolation from the fallout of publicity at this trial; it is inevitable that those who know him will identify him and thus frustrate the purpose of the restriction. Lastly, I am simply not convinced that, when everything is drawn together and weighed, it can be said that grounds underarticle 10(2) of the ECHR have been made out in terms of the balance of the effective preservation of CS’s article 8 rights against the right to publish under article 10. In the House of Lords, Lord Steyn (with whom the other members of the court agreed) made these observations on the relevant Articles, and the consequences of injunctions being granted: “IX. Article 8. 24. On the evidence it can readily be accepted that article 8 is engaged. Hedley J observed (para 18) “that these will be dreadfully painful times for the child”
“It is through the mass media that most people today obtain their information on political matters. Without freedom of expression by the media, freedom of expression would be a hollow concept. The interest of a democratic society in ensuring a free press weighs heavily in the balance in deciding whether any curtailment of this freedom bears a reasonable relationship to the purpose of the curtailment.”
“The need to be vigilant arises from the natural tendency for the general principle to be eroded and for exceptions to grow by accretion as the exceptions are applied by analogy to existing cases. This is the reason it is so important not to forget why proceedings are required to be subjected to the full glare of a public hearing. It is necessary because the public nature of the proceedings deters inappropriate behaviour on the part of the court. It also maintains the public’s confidence in the administration of justice. It enables the public to know that justice is being administered impartially. It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties’ or witnesses’ identity concealed. It makes uninformed and inaccurate comment about the proceedings less likely . . . Any interference with the public nature of court proceedings is therefore to be avoided unless justice requires it. However Parliament has recognised there are situations where interference is necessary.”
“58. As a final ground of distinction, this case is not put on the basis of the damage likely to be caused to the children by knowledge that their mother is or may be a criminal. Many children, themselves innocent, regrettably have to bear the burden of that experience. In this case the danger against which protection is sought is attachment of the personal attribution of HIV infection, falsely in the case of T and uncertainly in the case of R, with the consequences for them already described. … 67. Thus, considered in terms ofS.12(4)(a) of the Human Rights Act 1998 , (1) this does not appear to be a case where the identity of the mother or any link with the children has yet become available to the public at large, at any rate beyond the confines of the estate on which the mother lived and the father still lives. Whether that will remain so even if the injunction is granted is more problematic: (2) it is in the public interest for the identity of the mother to be published, given the general rule that unfettered freedom to report criminal proceedings and give publicity to the identity of the defendant is in the public interest. However, knowledge of that identity is not essential in order to give the public an adequate account or understanding of the trial or issues involved for the purposes of ‘open justice’ or informed debate … … 69. The case for unrestricted reporting is as follows. a) First, the criminal proceedings are of high public interest and are likely to raise controversial issues as to law and policy in relation to the prosecution of charges of the kind involved. That high interest will not be properly reflected by a requirement for the trial to be reported in "disembodied" form. The public should be entitled to put a face to the name of the defendant in any such proceedings. b) Second, the proposed publication of the identity and photograph of the mother is not directed at the children, who are not involved in the criminal proceedings as victims or witnesses. Indeed there is no certainty that the children will be mentioned in the course of the criminal proceedings. c) Third, the children are of an age where they will be themselves unconscious of the nature of the proceedings or their implications. There is therefore no immediate threat to their health or wellbeing as a result of these proceedings. d) The evidence before the court is speculative in nature in two respects. First, as to the likelihood of widespread recognition of the children beyond the confines of the estate and the immediate area in which the mother formerly lived. The second, as to the effects which it is suggested such recognition will have, namely abuse or harassment of the children or the families in which they find themselves, and recognition and ostracism at the nursery attended by T. These are fears expressed rather than real probabilities demonstrated. 70. The case for the applicant is as follows. a) First, it is acknowledged that there is high public interest in the proceedings. However reporting of the proceedings and discussion of the issues raised will not be seriously inhibited by an order permitting publication of the identity or address of the parents. b) Second, there will be serious short-term and long-term prejudice to the children if an injunction is not granted. c) Third, in the short-term, the care proceedings will be inhibited and the placement of the children with foster parents will be prejudiced for the reasons given in paragraphs 13-18 of this judgment. d) In the long-term, the children will be affected by the lasting stigma of AIDS and will continue likely to face teasing, bullying and ostracism at school and in the community as a result. 71. I have found it by no means easy to come to a conclusion in this case, primarily because of the inevitably speculative evidence in the case so far as the adverse effects an the children and their placements are concerned. There are here two powerful and emotive competing interests, each protected by the Convention. On the one hand, the freedom of the press in relation to the open reporting of criminal proceedings, coupled with what Munby J has described as the "clear and compelling interest" of the media and the public in the publication of the photograph of a person convicted of a serious crime so as to "put a face on the man" (see F v Newsquest Limited and others[2004] EWHC 762 (Fam) , [2004] EMLR 607 at para 98); on the other hand the need to protect the privacy of the children caught up in a situation over which they have no control and where they are in a delicate and vulnerable state and the subject of care proceedings of uncertain outcome. As to the former, the interference with the Convention right is certain and clear cut. As to the latter, it is more problematic in two respects. First, what is the likelihood of interference if the injunction is withheld? Second, if the injunction is granted how effective will it be to prevent or reduce the interference against which protection is sought? In these respects, when having regard to proportionality, it is necessary to consider not only the extent of harm which has already occurred, but the likelihood that the harm sought to be avoided will occur in any event. 72. Finally, it may be pertinent to add in relation to the balance to be struck that, in the absence of Article 6 considerations, the predicament of the defendant in the criminal proceedings is irrelevant. Different types of crime, albeit serious, give rise to different reactions in society and (depending upon the circumstances of the case) there may well be cases, which engage pity as much as condemnation for the defendant. That is, however, irrelevant to a balancing exercise as between the inroad into press freedom and the public interest on the one hand and incursion into the child's right to privacy and family life on the other. Re S has made clear that the court must be prepared to take a hard-headed and, what may appear in this jurisdiction a hard-hearted, approach. 73. After carefully consideration I have decided nonetheless to grant the injunction sought. 74. So far as Article 10 is concerned, I accept the high media and public interest in the case, and that suppression of the identity of the parents by name, address or photograph will result to that extent in a disembodied trial. However, the case rightly made by Newsquest is that it is the novelty and issues involved in the charge to which the mother is pleading guilty which render it of high interest and I do not consider that reporting or discussion of those issues will be significantly inhibited. In so far as relief is sought against the naming of others who are or may be responsible for the care, education or welfare of the children, I do not consider that any significant inroad would be made into the right to report the criminal proceedings. 75. I accept entirely that the principal interest of the press, namely that to publish the identity and photograph of the mother is not directed at the children; however I consider that it is bound to have an adverse affect upon them in a manner which engages, and is likely to inflict, substantial damage on their Article 8 rights. 76. I also accept that the children are of an age where they will not themselves be conscious of the nature of the proceedings. However I do not accept there is no immediate threat to their health or well-being if the injunction is not granted. I am persuaded by the evidence before me that if the "naming and shaming" which is proposed (and by use of that convenient phrase I do not seek to suggest that it would not be justified) then there is likely to be a focus of attention, pressure and harassment upon the children and the families concerned and potentially concerned with their care of a far higher profile and more intense degree than would be the case if the injunction is not granted (see further below). 77. As to the likelihood of future events, it does seem to me that, so far as R is concerned, at his tender age, the likely damage is far less acute than in the case of T. If R stays with his father's family, their predicament will be known on the estate, regardless of whether wide spread publicity occurs. However, it is not yet settled where R's future placement will be. Further, if the matter is the subject of high publicity, not only is it likely to encourage a higher level and a more widespread curiosity and adverse attention in the short-term, but, memory and gossip being what they are, chances of attracting harassment, bullying and teasing in the future over a medical condition which R probably does not have, and certainly does not deserve, are high, and in my view probable. If, in the event, the outcome of the care proceedings is ultimately that the Council seek to place R with other foster parents, again I consider it likely that unnecessary difficulty may be encountered in placing him. 78. So far as T is concerned, similar considerations apply, but to a more serious and positive extent in that she is already of an age to be vulnerable and sensitive to teasing, ostracism or bullying should that occur as a result of wide publicity being given to the identity of her mother and father. I have already referred to T's very vulnerable position by reason of the disturbance that she has already suffered. I accept that there is likely to be serious short-term and long-term prejudice to the children if the injunction is not granted, for the reasons given by the Council. It may well be that, even without it, there will be a level of gossip and harassment. However, in my view it is sufficiently established that what may otherwise die down as a nine-day wonder will be elevated into a widespread and far longer-lasting inroad into the privacy and family life to which these children are entitled and of which they are in such need. In my view it is both necessary and proportionate to protect the children against what I consider is established as a likelihood of harm which will be avoided, or at any rate diminished, if the injunction is granted. 79. Accordingly, I propose to grant an injunction, the final terms of which remain to be discussed.”
"... each Article propounds a fundamental right which there is a pressing social need to protect. Equally, each Article qualifies the right it propounds so far as it may be lawful, necessary and proportionate to do so in order to accommodate the other. The exercise to be performed is one of parallel analysis in which the starting point is presumptive parity, in that neither Article has precedence over or 'trumps' the other. The exercise of parallel analysis requires the court to examine the justification for interfering with each right and the issue of proportionality is to be considered in respect of each. It is not a mechanical exercise to be decided upon the basis of rival generalities. An intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary before the ultimate balancing test in terms of proportionality is carried out." 32 This appeal succeeds on the jurisdiction argument. We must however add that we respectfully disagree with the judge's further conclusion that the proper balance between the rights of these children under Article 8 and the freedom of the media and public under Article 10 should be resolved in favour of the interests of the children. In our judgment it is impossible to over-emphasise the importance to be attached to the ability of the media to report criminal trials. In simple terms this represents the embodiment of the principle of open justice in a free country. An important aspect of the public interest in the administration of criminal justice is that the identity of those convicted and sentenced for criminal offences should not be concealed. Uncomfortable though it may frequently be for the defendant that is a normal consequence of his crime. Moreover the principle protects his interests too, by helping to secure the fair trial which, in Lord Bingham of Cornhill's memorable epithet, is the defendant's "birthright"