Venables, Re (No 2 [2018] EWHC 2128 (Fam)

[2018] EWHC 2128 (Fam)Case No FD18F00008
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(In open court)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 8 August 2018
Before
SIR JAMES MUNBY(Sitting as a Judge of the High Court)
In the matter of the person previously known as Jon Venables
Application by Ralph Stephen Bulger and James Patrick Bulger (No 2)
Hearing Hearing date: 20 July 2018
Mr Robin Makin (of E Rex Makin and Co) for the Applicants
Mr Edward Fitzgerald QC and Mr Jonathan Price (instructed by Bhatt Murphy) for JV
Mr Simon Pritchard (instructed by the Government Legal Department) for the Attorney General
Judgment Approved
This judgment was delivered in open court
Sir James Munby (Sitting as a Judge of the High Court) :
[1]On 3 May 2018, following a hearing in public on 1 May 2018, I handed down a judgment explaining the directions I had given with a view to the hearing of this matter: Re the person previously known as Jon Venables; Application by Ralph Stephen Bulger and James Patrick Bulger [2018] EWHC 1037 (Fam).[2]As I explained (judgment, para 8), the Ministry of Justice (“MOJ”) had declined an invitation from the Applicants’ solicitor, Mr Robin Makin, to be a party, for reasons set out in a letter from the Government Legal Department dated 27 April 2018:
“The MOJ’s involvement in this matter is solely as the holder of the documents which Mr Ralph Bulger seeks access to through the subject access request under the Data Protection Act 1998 … that he has made to the MOJ. MOJ have no view to give on the maintenance or otherwise of the injunction … at this stage.”
That remained MOJ’s stance following receipt of a further email from Mr Makin on 30 April 2018. I said (judgment, para 27) that I was still unclear as to precisely why and on what legal basis Mr Makin was contending for the joinder of the Ministry of Justice and the production by it of the extensive documentation he seemed to be seeking. I made clear (para 28) that it is no proper part of the judicial function I am here exercising to police, let alone enforce compliance by it with, the MOJ’s obligations arising in relation to Mr Ralph Bulger’s subject access request under the Data Protection Act 1998. That, I said, is a matter for others in other places. I went on (para 29(iii)) to direct that if the Applicants wished to apply for orders against the MOJ, either joining it as a party and/or requiring it to produce documents, they must make a proper application, setting out (i) the orders sought, (ii) the reasons why it is said that such orders should be made and, if the production of documents is sought, (iii) the documents or classes of documents whose disclosure is sought.[3]In accordance with that direction, the Applicants on 2 July 2018 filed written submissions indicating that the relief sought against the MOJ was twofold: an order that the MOJ pay the Applicants’ costs and “disclosure of material relating to “the participation to [sic] the Secretary of State’s predecessor in the proceedings before Dame Elizabeth Butler-Sloss P.”” The MOJ’s response, in a letter from the Government Legal Department dated 19 July 2018 which, perfectly understandably, said that the Secretary of State did not propose to attend the hearing on 20 July 2018, made two points. First, that the judgment of Dame Elizabeth Butler-Sloss P dated 8 January 2001 makes clear (para 3) that the Home Secretary did not intervene in the application and made no submissions as to whether or not the injunction should be imposed and sets out (paras 2-8) the evidence submitted by the Home Secretary. Secondly, that “the Secretary of State is not a party to either the Family Division or criminal proceedings listed on the application notice nor do the substantive orders in the application concern the Secretary of State. As such, the Secretary of State would resist any application for costs being awarded against him.”[4]At the hearing on 1 May 2018, Mr Makin had raised the question whether future hearings should be in private. I said (judgment, para 30):
“I directed that the hearing before me on 1 May 2018 should be in public, in open court. There were, in my judgment, overwhelming reasons why, in the public interest, that hearing – which was not going to involve the analysis or discussion of any sensitive matters – should be in public, so that the media, as the eyes and ears of the public, should be (subject of course to the injunction) unfettered in their ability to report proceedings which, of their nature, were of very considerable public interest. The same goes, as it seems to me, for the next case management hearing, which should likewise be in public. Whether the final substantive hearing should be either wholly or partly in private is a matter best considered at the next hearing.”
[5]I now hand down this short judgment to explain the further directions I gave at the hearing, also in public, on 20 July 2018.[6]In large part the further directions I was being invited to make were uncontroversial, except as to the precise timetable. There were five subjects of particular controversy: i) First, the Applicants sought directions that the Secretary of State for Justice be joined and be directed to file evidence. I refused that application, essentially for the reasons put forward by the Government Legal Department in its letters dated 27 April 2018 and 19 July 2018. The Applicants have articulated no proper basis for either joining the Secretary of State or directing him to file evidence. My order permits the MOJ to file evidence if so advised. No more is required by way of directions. ii) Secondly, the Applicants sought directions that the Attorney General file evidence “as to his position regarding the public interest aspects.” Mr Simon Pritchard, on behalf of the Attorney General, did not seek permission to file evidence and said that the Attorney General would fulfil his role as guardian of the public interest by preparing submissions for the court. That is exactly what I would have expected of the Attorney General; it is not for the court to direct him to file evidence if he does not wish to. iii) Thirdly, the Applicants sought a direction that the Attorney General arrange for independent counsel to be instructed to act as a friend to the court. This is completely unnecessary. The court will have the benefit not merely of full adversarial argument on behalf of the two protagonists but also of the Attorney General’s public interest submissions. Nothing more is required to enable the court to deal fairly and justly with the issues raised before it. iv) Fourthly, the Applicants sought a direction that the further proceedings should be heard in private and that “none of the evidence to be filed … shall be available to the public without an express Order of the President.” The former is inappropriate and the latter unnecessary. The proceedings should be in public (as were the proceedings in 2001 before Dame Elizabeth Butler-Sloss P), except to the extent, if at all, that the trial judge takes the view that some particular part of the proceedings should not be in public; for example, if particularly sensitive material has to be discussed in a way which requires – I use the word in the sense familiar from the Strasbourg jurisprudence – a greater degree of privacy than can otherwise be achieved. The evidence will not be accessible by anyone other than the parties prior to the final hearing. If some restraint upon its dissemination is then required, that is a matter which can best be dealt with by the trial judge. v) Finally, the Applicants sought a direction for what Mr Makin called ‘secure data handling’, as between the parties and between the parties and the court, “due to the nature of the matters to be communicated.” I refused that application, there being here nothing so out of the ordinary as to justify what is, even in the family courts, a most unusual process.[7]The order I made, dated 20 July 2018, is in the following terms:
“UPON FURTHER CONSIDERING an application (“the Application”) dated 26 January 2018 issued by Ralph Stephen Bulger and James Patrick Bulger (“The Applicants”) for the purposes of giving directions AND UPON hearing Robin Makin, Solicitor-Advocate for the Applicants; Edward Fitzgerald QC and Jonathan Price of counsel for the 1st Claimant Jon Venables (“JV”); and Simon Pritchard of counsel for Her Majesty’s Attorney General acting as Guardian of the Public Interest IT IS ORDERED that: 1. The Applicants be permitted to rely upon their own witness statement dated 24 April 2018 and 13 July 2018, and the witness statements of George Howarth MP dated 13 July 2018, and Robin Makin dated 16 July 2018 in support of the Application. 2. The Secretary of State for Justice and/or any relevant law enforcement agency be permitted, if so advised, to rely upon witness evidence concerning the current risk posed to the safety of JV, to be filed and served no later than 4pm on 14 September 2018. 3. JV be permitted, to rely upon the witness statement of Simon Creighton dated 26 January 2018 and, if so advised, to rely upon further witness evidence relevant to the Application, to be filed and served by no later than 4pm on 21 September 2018. 4. The Applicants be permitted to file and serve any evidence in reply to that provided for in paragraphs 2 and 3 above by no later than 4pm on 12 October 2018. 5. The Attorney General is to file and serve written submissions stating his position in relation to the public interest insofar as it relates to the Application by no later than 4pm on 26 October 2018. 6. JV is to file and serve written submissions in relation to the Application by no later than 4pm on 2 November 2018. 7. The Applicants are to file and serve written submissions in relation to the Application by no later than 4pm on 23 November 2018. 8. The Applicants are to file and serve in accordance with the requirements of PD27A and in a form complying in all respects with the requirements of PD27A a bundle for the hearing. 9. The final hearing of the Application be listed with a time estimate of two days before the President of the Family Division on the first available date convenient to the court, the parties and their advisors on or after 3 December 2018. 10. The final hearing provided for at paragraph 9 above shall be in public, save that the court may decide to hear parts of the hearing in private if necessary, having regard to the sensitivity of any material to be put before the court, and to the general principle of open justice. 11. Costs in the case. Dated 20 July 2018”
I make clear that I expect the terms of this order and the requirements of PD27A to be complied with meticulously and on time. IT IS ORDERED that: Dated 20 July 2018”