Mr Z (and Others) v News Group Newspapers Ltd (and Others)
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Cobb |
| Judgment Date | 07 May 2013 |
| Neutral Citation | [2013] EWHC 1150 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD13P00877 |
| Date | 07 May 2013 |
[2013] EWHC 1150 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Cobb
Case No: FD13P00877
Miss Mary Lazarus (instructed by Atkins Hope) for the Applicant
Miss Claire Kissin (instructed by Simons Muirhead Burton) for the NGN Ltd
Hearing dates: 3 May & 7 May 2013
Judgment [1]
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.
Introduction:
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).
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.
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).
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 :
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.
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.
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.
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.
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.
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.
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.
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];
(c) Prosecution opening note [undated];
(d) Correspondence from CAMHS team concerned with one of the children (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 :
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).
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.
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.
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.
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.
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".
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.
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.
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.
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...
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