Z & Ors v News Group Newspapers Ltd & Ors (Judgment 1) [2013] EWHC 1150 (Fam)

This judgment is being handed down in private on 7 May 2013. It consists of 16 pages and has been signed and dated by the judge.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

Case No FD13P00877

[2013] EWHC 1150 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 07/05/2013

Before

THE HONOURABLE MR JUSTICE COBB

Between

Mr ZApplicant

News Group Newspapers LimitedRespondent

Miss Mary Lazarus (instructed by Atkins Hope) for Applicant

Miss Claire Kissin (instructed by Simons Muirhead Burton) for NGN Ltd

Hearing Hearing dates: 3 May & 7 May 2013

Judgment

Mr. Justice Cobb :

Introduction:

[1]Until further order, there shall be no publishing of this judgment, or of the details within it which may lead to the identification of the children of the defendant (hereafter Mrs Z).

[2]Further to that injunction, this judgment is drafted in such a way as to give a degree of anonymity to the protagonists in this case; I propose to outline the background facts only insofar as is necessary for an understanding of my decision.

[3]The key characters to whom reference will be made hereafter are Mrs Z and her eight children. The application is brought by Mr Z (hereafter ‘the Applicant’), a former partner of Mrs Z and father of five of the children (including the minor children).

[4]This application gives rise to the difficult question of whether a court should, exceptionally, exercise its inherent jurisdiction (invoked as a vehicle for the balancing of rival human rights claims) to make an order restricting the reporting of a criminal trial. In the event of an order being made, the further question arises as to how far should such injunction extend, and (in this essentially changing situation) in what circumstances a change in the situation may justify a different outcome.

The application:

[5]Mrs Z was arrested in November 2009, and is currently standing trial at the Crown Court, facing an indictment containing 24 counts of serious benefit fraud.

[6]The trial is well-advanced, having run already for two or more weeks. The prosecution has nearly reached the conclusion of its case; the defence case commences this week. I am told that in two, or possibly three, weeks the jury will retire to consider its verdicts.

[7]At an earlier pre-trial/case management hearing, on 18 October 2011, Mr Justice Saunders made an order under Section 39 Children and Young Persons Act 1933, forbidding the identification of four of the children of the defendant Mrs Z, (namely C, D, E and F below), then all minors (C has subsequently attained the age of majority). Liberty to apply was given to discharge that order.

[8]News Group Newspapers Limited Ltd (NGN) only became aware of the trial, and the reporting restriction, for the first time on about the 25 April 2013. The Editorial Legal Counsel at NGN immediately wrote to the Crown Court on 26 April indicating that the newspaper wished to challenge the Section 39 Order. On 2 May 2013, solicitors for NGN wrote again to the Crown Court indicating its client’s intention to apply to discharge the order under Section 39 CYPA 1933.

[9]That application was made orally by Miss Claire Kissin on behalf of NGN at the Crown Court on the following morning – Friday 3 May 2013. The application was based on the fact that the subjects of the order were not now (if ever) caught by the provisions of Section 39; the application was successful, and the Crown Court Judge discharged the order.

[10]Simultaneously, an application was made by Mr Z under the inherent jurisdiction in the Family Division of the High Court. That application came before me, as the urgent applications judge, on the morning of Friday 3 May 2013; I heard briefly from Miss Lazarus for Mr Z at the beginning of the day and was appraised of the application being made in the Crown Court. I adjourned the application to await the arrival of NGN and their legal team at the Royal Courts of Justice; I indicated that I would determine the application at that stage with the benefit of full submissions from both sides.

[11]Following the completion of a busy list (and other urgent without notice hearings) the hearing commenced before me at 5.20p.m. on Friday 3 May; I heard full submissions from counsel, and the hearing concluded at 7.40p.m. At that stage, I made a reporting restriction order, expressing it to be effective until I could deliver this judgment. I do so on the first opportunity after the hearing – namely on the morning of 7 May 2013.

[12]For the purposes of adjudicating on this application at this stage, I have read:(a) The application for relief under the inherent jurisdiction [dated 2 May 2013];

(b) Statement of the Applicant [dated 3 May 2013];

(d) Correspondence from CAMHS team concerned with one of the children

(e) (E) [dated 26 and 30 April 2013]; (e) Written Skeleton Arguments filed on behalf of the Applicant, and NGN;

(f) A number of the relevant authorities in this area.

Background:

[13]Mrs Z is the mother of eight children. They are A (aged 23), B (aged 21), C (aged 19), D (aged 16), E (aged 15), F (aged 12), G (aged 9), and H (aged 7).

[14]The Applicant is the father of D, E, F, G, and H. It is the Applicant’s case (see para.4 application) that the oldest six children (A, B, C, D, E and F) all have special needs. Five of the mother’s children, A, C, D, E, and F are cited in the indictments to which I have referred (and which I discuss more fully below); of those, three of them (D, E and F) are currently minor children.

[15]The trial of Mrs Z focuses on a number of claims for Disability Living Allowance (DLA), Carer’s Allowance (in respect of the child C) and other tax credits which Mrs Z is alleged to have made in respect of a number of her children, over an extended period of ten years.

[16]The prosecution case, in summary, is that Mrs Z was not entitled to those non-means tested benefits, and she knew that she was not so entitled. It is alleged that Mrs Z had made these claims based on the assertion that five of the children “suffered from problems with their speech and language, physical disabilities, mental health problems and severe learning disabilities and behavioural problems” (§1.4 prosecuting opening note) including “handicaps, phobias and intolerances e.g. ‘difficulty with walking’, ‘poor co-ordination’, ‘poor spatial awareness’, ‘unclear speech’, ‘fear of crowds’, ‘difficulty following instructions’, ‘difficulties getting dressed’, ‘cant wash or bathe’ and ‘needs help with toilet’” (§1.4 ibid.). These claims were reported to be independently verified, including (in some respects) by a consultant paediatrician, Dr. K.

[17]Proof of the falsity of the claims, asserts the prosecution, is that the disabilities and problems which Mrs Z claimed her children were suffering were not compatible with their various activities and other achievements. In particular, for periods of time when Mrs Z was asserting (for the purposes of the benefit claim) that the children suffered “various disabilities and conditions which materially affected their care and/or mobility needs” (see §1.3 prosecuting opening note), they were (according to the Crown) all in mainstream school, successful in their academic subjects, and apparently able to undertake physical exercise in school.

[18]Perhaps most notably, it is said that three of the children attended a specialist theatre school, became successful child actors/actresses and appeared in amateur and professional productions in regional theatres, and even on the West End stage, including appearances in a number of well-known and successful productions; they appeared on the television. In their theatrical and public roles they were said to be involved in acting, dancing, and singing – “wholly inconsistent” (says the Crown: §1.9) “with the care and mobility needs described by the defendant”.

[19]The prosecution case is that the benefit claims were therefore false because Mrs Z “grossly misrepresented and/or exaggerated the care and mobility needs of her children” (§1.13) and that it is impossible to reconcile the disabilities and handicaps which she attributes to her children (in the claim forms) with their activities, their achievements at school and university, and their artistic careers which they have subsequently performed on stage and on TV, to which I have referred.

[20]The value of the alleged wrongful claim for DLA is £240,000. When added to the alleged wrongful claim for tax credits arising from the claims of disability and severe disability of her children (£110,000), and alleged false claims for housing benefit and council tax benefit (£15,000), the global sum of the alleged fraud is said to be in the region of £365,000.

[21]It follows from my (necessarily brief and inevitably incomplete) summary of the case above that at the heart of the enquiry in the criminal court is an evaluation of whether, and if so to what extent, some or all of these children have disabilities – physical, intellectual, emotional, and social.

[22]I know little about how the Crown’s case has been challenged in the trial thus far, but it appears likely that Mrs Z’s case in that trial is that the children do suffer (or have suffered) various disabilities so as to justify the claims. Critical to my evaluation of this application and ultimate conclusion (see below) I am told by Miss Lazarus that the defence case (which commences this week) will be likely to involve the jury in undertaking a “lengthy and detailed analysis” of the medical records of the children. Mrs Z will, I am further advised, seek to demonstrate that she was entitled to make the claims, having regard to the independently verified and contemporaneous recordings of the presenting symptoms and conditions of the young people, validated (inter alia) by Dr. K. Mrs Z’s case is likely to be that those children whose names appear on the indictment have been said to suffer a range of specific, and in some instances significant, disabilities.

[23]Quite apart from the picture of the children’s functioning described in the benefit claim forms (to which I return below), in presenting his application before me, the Applicant describes three of his children as follows:(a) D (a boy) has “high functioning” Aspergers syndrome; this is said to manifest itself in obsessive and destructive behaviour, notwithstanding his high Intelligence Quotient. He is (I am told) in mainstream school and is preparing to take his GCSE exams this month;

(b) E (a girl) is reported to suffer with depression; she has a history of self-harming and has recently been diagnosed with ME (Myalgic Encephalopathy, a form of chronic fatigue syndrome). I have seen a letter from a Child and Adolescent Mental Health social worker dated 30 April 2013 relating to her condition, which contains the following information:

“[E] is currently under the care of the [local] CAMHS team. Our service supports young people who suffer with chronic and enduring mental health issues. [E] has been known to our team since March 2012. She has been offered a service through our team for the treatment of depression and generalised anxiety. [E] was previously diagnosed with ME and has been treated at Great Ormond Street Hospital. I [social worker] offer [E] individual therapeutic work on a regular basis. However [E] continues to present low in mood, has difficulties in social situations and continues to self-harm.”

She adds “It is my professional opinion that if [E]’s family are named in any newspaper publication this will have a negative impact on her emotional and mental well-being. I believe any publication of family details would greatly increase [E]’s risk to self.” (emphasis by underlining added). In an internal e-mail of 26 April 2013, passing between fellow professionals, she comments on the risk of reporting of E’s details in the press: “Professionally I feel that this could have a catastrophic impact on her mental well-being and crisis plans will need to be put in place for [E] if the story is published.”(again, emphasis added). She adds The Applicant himself adds (per witness Statement §5(a)) that he considers that E is “a fragile person” who has already had one unscheduled move of school as she was adversely affected by bullying. (c) F (a boy) suffers with ADHD (Attention Deficit Hyperactivity Disorder), he is deaf (I was told by Miss Lazarus that he wears hearing aids and is due to have operative treatment shortly), and is on the autistic spectrum; he has other special needs (§4 Application, though undefined by the Applicant).

She adds

[24]The Applicant further contends that all of the children have “emotional difficulties or psychological problems” (§6 Application) though they are (save as above) undefined.

[25]I say for completeness sake that there is no local authority involvement in this family’s life; the Applicant describes Mrs Z as “a very good and devoted mother” (§6 statement).

[26]None of the children were called as witnesses for the Crown. Although the children’s highly personal medical histories are to be (or may well be) picked over in court in the next few days and weeks, none of the children are (I am told) to be called as witnesses for the defence.

[27]None of the children can properly be described as people by or against or in respect of whom the criminal proceedings are taken. None of the children (nor the Applicant), is said to be implicated in the alleged criminal conduct of Mrs Z.

[28]Therein lies the inherently unusual aspect of this case – the lives of the dependent children is the focus of the criminal trial, but the children do not attract the ordinary protections of Section 39 Children and Young Persons Act 1933. It is to that statutory provision which I turn first, in evaluating the applicable law.

The law:

[29]Section 39: I turn to, and dispose of, the question of Section 39 Children and Young Persons Act 1933 first. As indicated above, between 18 October 2011 and 3 May 2013 the identities of the children in the context of this criminal process were protected by an order made under Section 39 of the CYPA 1933.

[30]This statutory protection exists only in respect of children and young persons, and specifically provides that: “no newspaper report of the proceedings shall reveal the name, address or school, or include any particulars calculated to lead to the identification, of any child or young person concerned in the proceedings, either as being the person by or against or in respect of whom the proceedings are taken, or as being a witness therein” – (emphasis added) That is to say, that children who are victims, defendants or witnesses are protected, but not otherwise.

[31]It is now apparent that the children of this family do not fit into these categories, and (as I understand it, though I have not seen a note of the judgment of the Crown Court Judge) the order was discharged on that basis. Accordingly (in the manner described above) urgent alternative protection was sought for them.

[32]The principles: This application is brought under the inherent jurisdiction. That jurisdiction simply provides the vehicle which enables the court to conduct the necessary balancing exercise between the competing rights protected and enhanced under the Convention for the Protection of Human Rights and Fundamental Freedoms (the European Convention on Human Rights (ECHR)), most notably Article 8 and Article 10.

[33]This is – per Lord Steyn in Re S (A child) (Identification: Restriction of Publication

[2004] UKHL 47

[2005] 1 AC 593

(“Re S”) at §23 – the simple and direct way to approach such cases.

[34]In determining the application I balance on the one hand the “right” of the individual “to respect for his [her] private and family life” (Article 8(1)), and on the other “the right to freedom of expression” which is deemed to include the right “to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers” (Article 10(1)).

[35]The Article 10(1) right is qualified by Article 10(2) which refers specifically to the “duties and responsibilities” inherent in freedom of expression, and indicates that such a freedom “may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society”, in order to maintain a range of particular ‘interests’.

[36]When conducting the balancing exercise outlined above, I adopt the approach articulated by Lord Steyn in Re S (@ para.17), paying close regard to the fact that:(a) neither Article has as such precedence over the other;

(b) where the values under the two Articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary;

(d) the proportionality test must be applied to each.

[37]In considering this four-fold test I have had regard to the comments of Potter P in A Local Authority v. W and others

[2005] EWHC 1564

, in which he described (at §53) each Article as propounding “a fundamental right which there is a pressing social need to protect”. Potter P emphasised in that case the importance of avoiding a mechanistic approach to the opposing factors, based “upon the basis of rival generalities” but encouraged the court to undertake conscientiously the “intense focus on the comparative importance of the specific rights being claimed in the individual case” before applying the cross-check of proportionality.

[38]Article 8 embraces the concept of “unwanted access to private information and unwanted access to [or intrusion into] one’s … personal space”: this is what Tugenhadt J in Goodwin v NGN Ltd & VBN

[2011] EWHC 1437

(at §85) described as "confidentiality" and "intrusion". I accept the submissions of Miss Lazarus in this case that intrusion into one’s personal space includes interference into the life of the family aswell as the private life of the individual.

[39]Given the engagement of Article 10, I have further had specific regard to the provision of Section 12(4) of the Human Rights Act 1998 viz: “The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to –(a) the extent to which – (i) the material has, or is about to, become available to the public; or (ii) it is, or would be, in the public interest for the material to be published;

(b) any relevant privacy code”. (a) the extent to which – (i) the material has, or is about to, become available to the public; or (ii) it is, or would be, in the public interest for the material to be published; (b) any relevant privacy code”.

[40]Thus far, no information about this criminal trial has seeped into the public domain.

[41]The ‘privacy code’ referred to in section 12(4)(b) above is (I believe) currently the Press Complaints Commission Editor’s Code of Practice, which “sets the benchmark for those ethical standards, protecting both the rights of the individual and the public's right to know” (ibid.). The Code accurately summarises key Convention rights, and describes ‘public interest’ as including “freedom of expression itself” (confirmed by Lord Woolf in A v B

[2003] QB 195

). It further specifically provides that: “[in] cases involving children under 16, editors must demonstrate an exceptional public interest to over-ride the normally paramount interest of the child”.

[42]However, ultimately, as Tugenhadt J said in Goodwin (above) “…what is of interest to the public is not the same as what it is in the public interest to publish. Newspaper editors have the final decision on what is of interest to the public: judges have the final decision what it is in the public interest to publish.”

[43]Tugenhadt J’s point had been framed in a different but complementary way by Lord Rodger of Earlsferry in Re Guardian News and Media Ltd [2010] UKSC1

[2010] 2 AC 697

@§63 when he said:

“What's in a name? "A lot", the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature. And this is why, of course, even when reporting major disasters, journalists usually look for a story about how particular individuals are affected.”

[44]The application of the balancing exercise can be found in a number of cases in the Family Division, and increasingly in the Court of Protection. One of the most recent decisions is that of Peter Jackson J in A Council v M, F, and others

[2012] EWHC 2038 (Fam)

in which he said this (at §82-84):82. The resolution of this conflict of legitimate interests can only be achieved by close attention to the circumstances that actually exist in the individual case. As Sir Mark Potter has said, the approach must be hard-headed and even, from the point of view of this jurisdiction, hard-hearted.

83. Rights arising under Art. 8 on the one hand and Art. 10 on the other are different in quality. Art. 8 rights are by their nature of crucial importance to a few, while Art. 10 rights are typically of general importance to many. The decided cases, together with s.12(4) HRA, act as a strong reminder that the rights of the many should not be undervalued and incrementally eroded in response to a series of hard cases of individual misfortune.

84. On the other hand, there is no hierarchy of rights in this context and there are cases where individual rights must prevail. In highly exceptional cases this can even include making inroads into the fundamental right to report criminal proceedings, but only where that is absolutely necessary. I respectfully adopt this analysis.

[45]The principles, as they apply to the reporting of criminal process: In this application I am of course concerned with the reporting of criminal process.

[46]My starting point in this regard has to be to give due weight to the “strong rule” (so described by Lord Steyn in Re S) that the press, as the watchdog of the public, may report everything that takes place in a criminal court.

[47]This applies as much to an ongoing trial as to the conclusion of it. Lord Steyn observed (when rejecting the distinction which Hale LJ had drawn between the public interest in knowing the names of persons convicted of serious crime compared with the public interest in knowing the names of those who are merely suspected or charged: see Re S §30):

“The glare of contemporaneous publicity ensures that trials are properly conducted. It is a valuable check on the criminal process. Moreover, the public interest may be as much involved in the circumstances of a remarkable acquittal as in a surprising conviction. Informed public debate is necessary about all such matters. Full contemporaneous reporting of criminal trials in progress promotes public confidence in the administration of justice. It promotes the values of the rule of law.”

[48]It is, however, not a rule to be applied mechanically. The duty of the court is to examine with care each application for a departure from the rule by reason of rights under Article 8.

[49]This was echoed by the President of the Queen’s Bench Division (giving the judgment of the court) in Re Trinity Mirror

[2008] 2 Cr. App R 1

in which he referred to the principle of “open justice in courts exercising criminal jurisdiction”. Integral to this principle (he said) is the need to ensure public confidence in the criminal justice system, the free reporting of criminal trials “and the proper identification of those convicted and sentenced in them” (ibid at §33).

[50]The judgment of the Court in Re Trinity Mirror made this important point (§32): “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". 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”.

[51]These essential principles, ingrained in and indispensable to our democratic society, deserve the highest respect.

[52]But criminal conduct, and the process by which it is investigated and tried, often brings with it heartbreak and unhappiness, particularly to those who are innocent victims and bystanders. I have little doubt that these will be dreadfully painful times for the adult and minor children of Mrs Z.

[53]In this respect, I recognise the need to guard against an instinctive desire to extend a protective wing to shield the children of parents who are accused of criminal activity and involved in the associated public forensic process. I have much in mind here the comments of Baker J at §43 in of W(B) v M(OS) & others

[2011] EWHC 1197 (CoP)

: “judges and practitioners in the Court of Protection – as in the Family Division – must be on their guard to ensure that their naturally protective instincts, developed through years of giving paramount consideration to the welfare of children and the best interests of vulnerable adults, do not lead them to underestimate the importance of article 10 when carrying out the balancing exercise”.

[54]I am conscious that in my evaluation of the material I must also not let the “misery, shame, and disadvantage” (§33 Re Trinity Mirror) foisted upon the children by virtue of their mother’s alleged criminal conduct weigh heavy in the balance; I recognise that inevitably the children of those accused of crime (particularly those convicted of crime) become victims to the consequences of the process, and (if proved) the criminal conduct itself.

[55]Exceptionality: When weighing up the competing factors, I bear very much in mind what Lord Steyn said in Re S about the “strong rule” of press freedom only being “displaced by unusual or exceptional circumstances”; this was re-stated by the President of the Queen’s Bench Division in (Re Trinity Mirror @§33: he too referred to the displacement of the right of press freedom as “exceptional”). I proceed in my determination of the issues in this case on the basis that only exceptionally could I displace the strong rule of press freedom.

[56]The burden of proof: In establishing that exceptional situation the burden falls on the applicant. In this regard, I draw on the comments of Potter P: see A Local Authority v PD and others

[2005] EWHC (Fam) 1837

@ para.30:

“The burden of proving the case for grant of an injunction always lies upon the applicant. In the special case of an injunction contra mundum, and in particular one which restrains the press from exercising its right unrestrainedly to report criminal proceedings, the burden is a heavy one. The necessity is to show unusual and exceptional circumstances. The entire tenor of the judgment in Re: S demonstrates the difficulties facing the applicant in a case of this kind”

[57]The evidence required: Applications such as this are necessarily brought swiftly and summarily without the luxury of time for the preparation of detailed and corroboratively supported statement. That said, I must reach my conclusion based on evidence. As Peter Jackson J said in Hillingdon LBC v Neary

[2011] EWHC 413 (CoP)

at §15(3):

“Publicity can have a strong effect on individuals, particularly if they are not used to it, or if, … they are vulnerable to anxiety and to changes in their environment. Any evidence that suggests a real possibility of a detrimental effect from publicity must weigh heavily. On the other hand, there must be some proper factual basis for such concerns”

(emphasis by underlining added).

The arguments:

[58]Miss Lazarus acknowledged the important public interest in the reporting of criminal proceedings, but argued on behalf of the Applicant that the minor children (particularly D, E and F) are so vulnerable psychologically that they deserve the protection afforded to them by

Article 8 of the ECHR

; of all the three, she maintains, this particularly applies to E.

[59]She argued that if any child or family member were to be identified in the press in the context of a report of this trial in a way as to lead to the identification of E, or E was identified by name, this would be likely to have a serious and harmful effect on E. In this regard, reliance is of course placed on the opinion of the mental health social worker, whose letter I have read into this judgment. Ms Lazarus argues that the court should not contemplate the potentially ‘catastrophic’ consequences of the public exposure of her situation.

[60]She contends that the press can report some aspects of the trial (the charges and the story), but can and should be injuncted from giving identifying information - the names of the family, their circumstances, their family history, or other information which would be likely to lead to the identification of the minor children.

[61]Miss Kissin for NGN pointed out that the trial is being conducted without any anonymity arrangements in place, and that the request for press restriction now should be viewed in this context. She argued that any ban on reporting would be likely to be effective to stifle any reporting of the case. The press would not be able to report the trial meaningfully, because at the heart of the case is the unusual characteristics of the family, including but not limited to the fact that:(a) This are a sibling group of eight,

(b) Some of whom have made appearances on the West End stage, while apparently so disabled that their conditions y justified enhanced payments of benefits to their carers.

[62]Miss Kissin emphasises the need for there to be some “exceptional” reason to justify an order that the reporting should be curtailed; she argues that the Applicant seeks a substantial interference with the right to freedom of speech. She reminds me that this is not a situation (as the Crown Court judge has found) in which Section 39 applies; accordingly, the court should be slow to extend the protection offered to children beyond that provided by statute – this is particularly so given that none of the children are accused of wrongdoing: she submitted that this is not a case where vilification or condemnation will fall on the children through press reporting of their situations.

[63]She contended that there is a public interest in reporting the trial as it occurs; the trial is a dynamic process. She borrows the essence of Lord Steyn’s judgment in indicating that “the glare of contemporaneous publicity ensures that trials are properly conducted” (Steyn in Re S @ §30).

[64]She further argues that a reporting restriction order cannot be used simply to protect the children from embarrassment (see in this regard Crawford v DPP (2998) The Times Feb 20 [65])

Discussion:

[65]The balance between the competing arguments is exquisitely finely poised in this application, at this stage of the trial.

[66]There are powerful considerations on both sides of the debate, as it is currently presented. On the one side is the intense, and in my judgment entirely legitimate, public interest in knowing of an alleged fraud upon the State, particularly(a) Where the alleged fraud is of this magnitude, and

(b) In the present climate when the concerns about welfare dependency, and alleged abuses of the welfare system, are prominent in the arenas of politics, society and media.

[67]On the other side of the argument is the fragile emotional state of the child E, the explicit warning about the consequences of invasion of her privacy, and – to a lesser extent – the particular concerns raised about the well-being of D, and F in the event of press reporting of the alleged conduct of their mother. There is the further prospect of the public reporting of all of the children’s medical histories as the defence case unfolds.

[68]In reaching a conclusion on these competing arguments, I have faithfully applied the principles laid down by Lord Steyn in Re S; I have not treated one article of the Convention as having precedence over the other, and in the final analysis, I have applied the “proportionality test … to each carefully”, reminding myself that the burden of establishing a case for restriction of press freedom falls upon the Applicant.

[69]Taking all of the matters into consideration, I conclude that the Applicant has discharged the heavy burden on him of proving at this stage that the case is made out exceptionally for the grant of a reporting restriction order. I so conclude for the following reasons.

[70]First, on the unusual facts of this case, the alleged exploitation of a significant number of children by Mrs Z in the alleged fraud places them at the heart of this criminal trial. While not entitled to the protection afforded to children under Section 39 (for the reasons outlined above), many of the same considerations applicable to children as witnesses or victims apply with force to the circumstances of these children. The children are not incidental to the alleged offending; they are central to it. Given their integral roles in the alleged fraud, a detailed review of their lives (and more pertinently their medical records) in the press would represent an exceptional intrusion into their private lives.

[71]I would not be faithful to the obligation on me to bring ‘intense focus’ to the ‘comparative importance of the specific rights being claimed in the individual case’ if I were to make slavish comparisons with the facts of previously reported decisions. But unlike the decisions which were analysed in argument, this case is, in my judgment, truly extraordinary. While these children are neither the subject of the alleged crime or the victim of the alleged criminality, they are said by the Crown to be the instruments through which Mrs Z is alleged to have achieved her unlawful gain. Their dependent status has been – according to the Crown – horribly exploited by their mother to make these fraudulent benefit claims. This is a powerful reason for concluding that they should have protection from widespread public knowledge of those alleged activities.

[72]Their situation is therefore wholly different from the child in Re S; in that case it was said that the child: “will not be involved in the trial as a witness or otherwise. It will not be necessary to refer to him. No photograph of him will be published. There will be no reference to his private life or upbringing. Unavoidably, his mother must be tried for murder and that must be a deeply hurtful experience for the child. The impact upon him is, however, essentially indirect” (Lord Steyn @ §25). The involvement of the children of this family in the circumstances of this alleged offending (and therefore the trial) is, by contrast, direct. I suspect that there has already been, and there undoubtedly will be, constant references to them, to their private lives and their upbringing. The references to the children will be real and immediate. The children’s role in the piece is a crucial component of the prosecution case, and apparently to the defence.

[73]Secondly, I am particularly influenced by the fact that the focus of the trial in the next few days and weeks is likely to involve (I am advised) a lengthy and detailed examination of the individual and personal medical records of the children whose alleged conditions are said to have justified the claim of benefits and tax credits. Medical records are by their nature personal to the individual, private, and sometimes intensely so; they are invariably regarded by the individual (and by the doctor) as confidential, even if that is not an absolute rule.

[74]Examination of a teenager’s medical records in a public courtroom will represent for D, E and F a serious intrusion into their private lives; the public reporting of the contents of the same would, in my judgment, represent highly significant “unwanted access to private information” and unwanted access to, or intrusion into, their “personal space” (see Tugenhadt J in Goodwin above).

[75]I am entitled to take into account in this regard that whatever Mrs Z has said about the disabilities of her children, the medical records may well reveal E to be a youngster in an extremely fragile emotional or psychological state.

[76]I consider that this raises very powerful Article 8 considerations at the present time.

[77]Thirdly, when considering the Article 8 rights of the children, I must have regard to their unusual stated vulnerabilities. One of the issues for the jury is whether the children suffer, or have “suffered from problems with their speech and language, physical disabilities, mental health problems and severe learning disabilities and behavioural problems” (see prosecuting opening, referred to above) as reflected by Mrs Z in her benefits claim forms. It is not for me, at this stage, to gainsay those contentions; I must acknowledge that these contentions may be wholly true or partly true. The Crown’s case is that the condition may have been falsified by Mrs Z, or “exaggerated” by her.

[78]These are potent considerations when evaluating a person’s right to respect for their private life – the more so where that person is a minor. Quite apart from Mrs Z’s contentions about the children’s abilities/disabilities, I am entitled to take into account, and do so, the particular emotional and behavioural characteristics of the children as described by the Applicant. These factors weigh heavy in my evaluation of the children’s rights.

[79]Proportionality (1): public interest: I reach the conclusion above, acutely conscious of the unusual scale of the alleged fraud, and the manner in which the alleged fraud was perpetrated, both factors which elevate considerably the public interest in the case. I further take into account that if a reporting restriction order were in place, there would be little, if any, scope for reporting of the trial at all - the unusual facts are so interwoven with the alleged criminal wrongdoing that any detail given would be likely to provide potent identification of the family; in the circumstances, I bear in mind that (contrary to the argument of Miss Lazarus) any reporting restriction order would be likely to be effective to stifle any meaningful report of the case.

[80]I acknowledge that the order sought will be a considerable interference with the Article 10 right, and there needs therefore to be corresponding ‘justification; for interfering with or restricting such a right’ (per Lord Steyn). As things stand, such justification exists and at this stage it is a proportionate interference with the right to report.

[81]I further respect the importance of the criminal process being conducted under the the full glare of a public hearing; it is vital that the public know and have confidence in the processes of the criminal courts and how they are conducted in relation to those accused of serious crime. Public awareness of criminal process is as much a safeguard for the defendant as for the Crown.

[82]Proportionality (2): The extent of the protection: In my judgment, E is the child whose Article 8 rights most obviously currently prevail over the Article 10 rights of the press to report on the unfolding trial. The rights of D and F are almost of equal potency to those of their sister. Thereafter, though somewhat lower in the hierarchy, the Article 8 rights of G and H follow.

[83]A, B and C’s Article 8 rights are of a lower order altogether. I would not have had any or any significant difficulty in holding that the Article 8 rights of A, B and C (had they been considered on their own, separate from their role as family members to E, D and F) were displaced by the Article 10 rights of free speech. I am mindful of what Lord Steyn said about the rights of adult non-parties in cases of this kind (see §32 of Re S), and such comments apply here.

[84]However, it is necessary and proportionate in my judgment at this stage, in order to give effect to the Article 8 rights of E, and to a similar extent D and F, that there is no reporting of any information which identifies the family members, or the family name.

[85]Proportionality (3): The effect of a conviction. It is axiomatic that when conducting the balancing exercise in weighing Article 8 and Article 10 rights, the Court has regard to the particular circumstances as they then obtain. This has been my approach.

[86]For the reasons given above, while the defence case is being developed, and the medical records of the children examined in court, it is in my judgment a proportionate interference with the right freely to report the process to impose the restrictions of this order.

[87]But what if the position changes?

[88]In my judgment, while the balance tilts in favour of the Article 8 rights of the children at this stage of the trial, for the reasons discussed above, the balance may well alter in the event that Mrs Z is convicted of criminal offending.

[89]While acknowledging that the rights to freedom of expression “… apply with equal force to the freedom of the press to report criminal trials in progress and after verdict” (Lord Steyn in Re S §28), in my judgment marginally different considerations are likely to apply to the balancing exercise in the event that Mrs Z is convicted.

[90]The spotlight, currently focused on the children, their alleged disabilities, and medical records, will have diffused. A wider perspective of offending will be in view. The public interest in knowing about proven serious fraud upon the State is likely to outweigh the protection which the Article 8 rights currently offer the children who were the vehicles of that fraud.

[91]The President of the Queen’s Bench Division observed in Re Trinity Mirror that it is an important aspect of the public interest in the administration of criminal justice “that the identity ofthose convicted and sentenced for criminal offices should not be concealed.”(§32). I accept unreservedly these remarks, and applied to the facts of this case, on the information currently available, I am of the view that the identity of Mrs Z (and therefore the family) should probably not be the subject of reporting restraint in the event that she is convicted.

[92]I will hear representations from the parties at that time, as to whether the same considerations apply.

[93]Consequences of this

[94]I note that the Court of Appeal in Re Trinity Mirror allowed a period of time between the announcement of the decision and the lifting of the reporting ban to pass, a consequence of which was that “work might be done with the children, with a view to enable them better to cope with the public identification of their father following its earlier postponement” (§34). That is a fortunate by-product of the approach which I have taken to the balancing exercise in play now, and which I forecast to be the position in the event of a conviction.

[95]In order to be able to make a swift decision on the injunction at the time of the verdict, I shall invite the parties to notify my clerk when the trial judge commences his summing up. I shall gladly receive written submissions from the parties at that stage, and will list this case, around my other commitments, to ensure a speedy determination. [end]

Order

By indicating my likely decision in the event that Mrs Z is convicted, it seems to me that “crisis plans” (to which the mental health social worker referred in her e-mail: see above) can be drawn up to assist E (and the other minor children) to cope with the publicity which would inevitably surround such a conviction in the event that there is no restriction on reporting.