Hm Attorney General v Harkins
| Jurisdiction | England & Wales |
| Judge | sir John Thomas,Mr Justice Tugendhat |
| Judgment Date | 26 April 2013 |
| Neutral Citation | [2013] EWHC 1455 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | ATC/13/0202 |
| Date | 26 April 2013 |
[2013] EWHC 1455 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
PRESIDENT OF THE QUEEN'S BENCH DIVISION
( sir John Thomas)
Mr Justice Tugendhat
ATC/13/0202
ATC/13/0203
Miss Melanie Cumberland (instructed by Treasury Solicitor) appeared on behalf of the Applicant (Nos ATC/13/0202, ATC/13/0203)
Mr Paul Cross (instructed by McKenzie Bell) appeared on behalf of the Respondent Harkins
Mr Tehrani (instructed by Lancasters) appeared on behalf of the Respondent Liddle
THE PRESIDENT: HM Attorney General applies today for the committal of two persons who used the social media to break an injunction imposed some time ago, with the potential for very serious consequences to other people. The Attorney General is doing this in the public interest. He has done so with a speed which we would like to commend because the effective way of deterring such use of the social media in the future is not only by the punishment that this court can impose but also by the swiftness with which action is taken.
The background
The background to these proceedings can be shortly summarised as the events which are at the root of it are so well known. On 12 February 1993 a two-year old child, James Bulger, was killed by Thompson and Venables. On 24 November 1993 when they were 11 years of age, they were sentenced after their conviction for murder to be detained at Her Majesty's pleasure — in effect a life sentence. Although the trial judge enabled a large amount of material to be published, he was concerned about everything being published because of the importance of the rehabilitation of both Venables and Thompson.
On 8 January 2001, prior to the release of Thompson and Venables on licence under new identities, the then President of the Family Division Dame Elizabeth Butler-Sloss granted to them an injunction binding on the whole world preventing the publication of their new identities. It was reported in Venables v News Group Newspapers [2001] Fam 430. The terms of the injunction, so far as material, were to prevent not only the defendants to that particular case but all the world from publishing or causing to be published in any newspaper, or broadcasting in any sound or television broadcast or by means of any cable or satellite programme or public computer network, any depiction, image in any form, photograph, film or voice recording made or taken on or after 18 February 1993 which purported to be of Venables or Thompson (excluding police photographs of Thompson taken on 18 February 1993 and Venables taken on 20 February 1993) or any description which purported to be of their physical appearance, voices or accents. There were modifications to that order at a subsequent time and qualifications to it to which it is unnecessary to refer.
The then President when she granted the injunction, had a clear purpose for doing so. She said:
"From all the evidence provided to me, I have come to the clear conclusion that if the new identity of these claimants became public knowledge it would have disastrous consequences for Venables and Thompson, not only from intrusion and harassment but, far more important, the real possibility of serious physical harm and possible death from vengeful members of the public. If their new identities were discovered, I am satisfied that neither of them would have any chance of a normal life and that there is a real and strong possibility that their lives would be at risk."
It was also clear, as is often the case where what is called vigilante action is taken on the basis of a verbal or photographic image of a person, that there can be mistaken identification. It is appreciated that in the present case we are concerned not only with the risk to Venables and Thompson but to ordinary members of the public who could be mistaken for them as a result of the publication of any image or any matter amounting to a description of their identity which might result in such a mistake.
The present case arises out of what appears to have happened on the twentieth anniversary of the murder of James Bulger. That was on 12 February 2013. On that day and the days following it is common ground that, as we have been told by Miss Cumberland on behalf of the Attorney General, hundreds, if not thousands, of times images (or purported images) were placed on to the social media or otherwise on to the internet. We are however concerned with two people who contributed to what happened at about that time. Fortunately, there is no dispute as to what happened in respect of each. We will turn to deal with each in turn.
A. Neil Harkins
Probably on 14 February 2013 Neil Harkins used his Facebook profile to put on to that profile photographs of persons said to be Venables and Thompson. His Facebook profile indicated that he had one-hundred-and-forty-one friends. The photograph in respect of each person purporting to be identified as Venables and Thompson showed a photograph of them purporting to have been taken in the early 1990s and the other in the late 2000s. Underneath, he said:
"Interesting that this photograph is not allowed to be shown and there is an investigation on how it got out. What is more interesting is why he got released and protected in the first place."
Although he only had one-hundred-and-forty-one friends, it is plain from the evidence that the placing of this on to Facebook resulted in over 20,000 sharings with other people. It is impossible to say how many people saw it, but it is obviously a very significant number.
In addition to the initial passage which we have set out, Neil Harkins also said on his Facebook page, some time after it had been put on, but on the same day (14 February 2013):
"Can't imagine what the poor kid went through. What is wrong is the fact he got released and then got done for downloading child pornography and yet he is still protected. What is wrong with the system?"
On the following day, 15 February, the publication on the Facebook page was notified to the police. The Facebook page was investigated and the police confirmed that the identity under which it had been put forward was indeed that of Neil Harkins.
About a fortnight later on 28 February 2013, the Treasury Solicitor wrote on behalf of the Attorney General to Neil Harkins telling him that the publication was prohibited, that the Attorney General was considering bringing proceedings and asking him to remove the photograph.
It is a commendable feature of the action of Mr Harkins that on 1 March 2013 he immediately sent to the Treasury Solicitor an e.mail saying he had removed the photograph from the Facebook page immediately and had de-activated his account until further notice. A few days later on 5 March 2013 he wrote a long manuscript letter explaining what he had done. He stated that he posted the images and comment in response to a news article that appeared when he logged in. He mentioned that Thompson and Venables had been returned to prison and there had been speculation about the identity. He continued:
"The article showed the images that I posted which I know are some of many which are widely accessible on the internet. I believed at the time that the images I posted were not within any legal constraints as they were freely accessible on the internet. I was also under the impression that the legal restrictions applied to images published in the media. However having received a copy of the injunction which you enclosed, I realise that is not the case."
He set out his personal circumstances.
It was not entirely clear until the hearing today what position he would take in respect of the breach of the injunction. It would have been for the Attorney General to have proved that...
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