Burke v Central Independent Television Plc
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NEILL,LORD JUSTICE HOFFMANN,LORD JUSTICE WAITE |
| Judgment Date | 09 February 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J0209-2 |
| Date | 09 February 1994 |
| Court | Court of Appeal (Civil Division) |
[1994] EWCA Civ J0209-2
Before: Lord Justice Neill, Lord Justice Hoffmann and Lord Justice Waite
IN THE SUPREME COURT OF JUDICATURE,
COURT OF APPEAL (CIVIL DIVISION)
APPEAL TO BE SET DOWN PRO FORMA
(Handed-down judgment of John Larking, Chancery House, Chancery Lane, London, WC2. Telephone No. 071 404 7464 Official Shorthand Writers to the Court)
Wednesday 9th February 1994.
Introduction
On the evening of 27th January 1994 the Court allowed an appeal by Central Independent Television plc (the Television Company) against an order of Kirkwood J. made earlier in the day in Chambers. The order had the effect of preventing the Television Company from broadcasting a programme that evening without making changes which the Television Company considered that as a matter of law they were not obliged to make. I am now stating the reasons which led me to conclude that the appeal should be allowed. The Television Company are currently broadcasting a series of programmes about the work of Scotland Yard. The programme to be broadcast at 9.30p.m. on 27th January concerned the work of the Obscene Publications Squad; in particular, it related to the work of detectives engaged in an operation called "Operation Cathedral" which led to the tracing, arrest and conviction of a man whom I can sufficiently identify as the father.
On 31st October 1992 the father was sentenced to a term of six years' imprisonment on two charges of indecency involving young boys. Part of the evidence against the father consisted of a video film made by him of indecent acts in the course of their commission. The father pleaded guilty to these charges. At the trial the Crown Court judge imposed reporting restrictions in accordance with section 39(1) of the Children and Young Persons Act 1933 (as amended). It is to be noted that an order made under section 39(1) of the 1933 Act is designed to prevent 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."
On Monday 24th January 1994 the Television Company broadcast a trailer of the programme to be broadcast on Thursday 27th January. This trailer was seen by Mrs. R who was formerly married to the father and by whom she had a child S, now aged 5.
Mrs. R got in touch with the Television Company and instructed solicitors. The solicitors wrote to the Television Company on 26th January drawing attention to Mrs. R's concern that the programme contained scenes which would lead to the identification of herself and S, and that as a result serious distress would be caused to S and her life would be disrupted.
Negotiations then took place between Mrs. R's solicitors and the Television Company as a result of which, as a matter of concession and in order to safeguard the interests of the child as far as possible, but with no admission of any legal liability to do so, the Television Company undertook to remove from the broadcast programme any pictures showing the exterior or interior of Mrs. R's house, any pictures of the road in which she lived, any references to the name of the road, any pictures of Mrs R or S and in addition any reference to the fact that the father had a wife or child.
Mrs. R still remained concerned, however, that pictures of the father himself in the programme would lead to the identification of herself and S and to consequential harm to the child. An application was therefore made to Kirkwood J. sitting in the Family Division in Chambers.
In support of the application to the judge, counsel for Mrs. R. relied on the decisions of the Court of Appeal in Re M and N (Minors) [1990] Fam 211 and Re W (a Minor) [1992] 1 WLR 100 where the Court of Appeal laid down guidelines relating to the publication of information about minors who are wards of court. It was argued that these authorities established that in any case involving a publication which might cause harm to a child the court had a balancing exercise to perform, weighing on the one hand the potential harm to the child if the publication were made, and on the other hand the rights of the press (or other outside parties) to publish and comment upon matters of public interest. In the present case it was said the rights of the Television Company and the public interest in the story and the successful work of the police could be adequately protected without showing pictures of the man. The pictures might lead to the identification of Mrs R. and S.
The judge accepted this argument and made an order in these terms:
"Central Television plc may broadcast a television programme described as `Scotland Yard' only if moving pictures of the father are obscured."
The Television Company appealed. It was argued on their behalf that the judge was wrong in law to impose this condition, and furthermore that they had been under no legal obligation to give any of the undertakings which they had offered as a matter of concession to reduce the risks of identification to a minimum. The argument was developed on these lines:
(1) That the parental jurisdiction of the court should not be invoked to restrain the publication of a matter of public record —in this case the facial appearance of a person convicted in open court of a serious criminal offence —or to restrain the publication of a programme which was in no way concerned with the upbringing or care of the child, but merely affected her indirectly.
(2) That, in the alternative, the jurisdiction to restrain the publication of a matter of public record or of a matter which did not concern the upbringing or care of the child but merely affected her indirectly should only be invoked in exceptional circumstances. In the present case there were no exceptional circumstances; S was in no different position than any other child whose father had been convicted of serious crime.
(3) That, in the further alternative, the judge erred in the exercise of his discretion in that he gave paramount weight to the interests of the child.
On behalf of Mrs. R., on the other hand, it was argued that the judge had carried out the balancing exercise correctly, and that he had reached a decision in the exercise of his discretion with which an appellate court could not properly interfere. It was further submitted:
(a) That the actual physical appearance of the man was not a matter of public record; the matters of public record were limited to his name, the nature of the offences and the fact of his conviction.
(b) That the judge had been right to draw a distinction between a publication in the press immediately following a conviction and a publication made over a year later. In the course of his judgment the judge said:
"I distinguish between a fair report of current proceedings and showing a commercial television programme some months later."
The Law
It is plain from the note of the judge's judgment, which has been put before us by counsel for both parties, that the judge placed reliance on the guidelines which I ventured to enumerate in Re W (a Minor) (supra) at 103. In doing so I attempted to summarise the effect of earlier authorities relating to media interest surrounding children who are wards of court. It is therefore important that I should seek to explain why the balancing exercise to which I referred in that case is inappropriate in a case such as the present.
First, however, it is necessary to say something about the nature of the jurisdiction which Mrs. R. seeks to invoke.
The jurisdiction of the court to protect minors has been recognised for many centuries. The basis of the jurisdiction was explained in a passage which was approved by Lord Halsbury L.C. in Barnado v. McHugh [1891] AC 388 at 395 as follows:
"[A Court of Equity] interferes for the protection of infants, qua infants, by virtue of the prerogative which belongs to the Crown as parens patriae, and the exercise of which is delegated to the Great Seal."
One important facet of this protection of minors was considered by the House of Lords in Scott v. Scott [1913] 417. The point at issue was whether the High Court had the power to hear a matrimonial suit in camera in the interest of public decency. The House of Lords held that there was no such power. In the course of the speeches, however, mention was made of the special considerations which apply when the court is exercising its paternal jurisdiction in relation to wards of court. At 437 Viscount Haldane LC said:
"In the [case] of wards of court… the court is really sitting primarily to guard the interests of the ward… Its jurisdiction is in this respect parental and administrative, and the disposal of controverted questions is an incident only in the jurisdiction. It may often be necessary, in order to attain its primary object, that the court should exclude the public. The broad principle which ordinarily governs it therefore yields to the paramount duty, which is the care of the ward …"
In the same case Lord Shaw at 482/3 referred to the exceptions to the general rule of publicity for proceedings in an English court. The first exception, he said, depended on the familiar principle that the jurisdiction over wards is exercised by the judge as representing the monarch as parens patriae. He continued:
"The affairs are truly private affairs; the transactions are truly intra familiam; and it has long been recognised that an...
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