Official Solicitor v Newsgroup Newspapers and Anor
| Jurisdiction | England & Wales |
| Judgment Date | 28 January 1994 |
| Court | Family Division |
Connell, J
Contempt of court – Children Act proceedings – newspaper publishing extracts of reports used in Children Act proceedings – whether newspaper and editor in contempt of court – Administration of Justice Act 1960, s 12.
On 28 May 1993 Beverley Allitt was sentenced to life imprisonment in respect of 13 different offences, including murder and attempted murder. She had been employed as a nurse when she committed these offences against children in her care in hospital and it was established that she suffered from Munchausen syndrome by proxy. Her case very obviously raised grave public concern and received a great deal of publicity, the trial Judge expressing disquiet as to how someone suffering from this disability came to hold a job
she did and how it was that her activities were not detected sooner than they were.
On 30 May 1993 the news desk of The Sun newspaper received an anonymous telephone call to the effect that a female auxiliary nurse working in a hospital was also suffering from Munchausen syndrome by proxy and that her child had been removed from her care after a custody battle with her husband. This story raised important and topical issues in the eyes of the newspaper and they sent a journalist and a photographer to investigate the matter. The journalist interviewed the husband who confirmed that his wife did suffer from Munchausen syndrome by proxy and that he had won custody of his son as a result of court proceedings. In support of this assertion he showed the journalist a number of documents relating to the court proceedings which the journalist went through, taking and retaining a number of copies. The journalist was then able to prepare a story about the matter for The Sun with the co-operation of the husband; a story which he rang through to his editor.
On 1 June 1993 The Sun published a story in two editions, one story entitled "Nurse made her tot starve" ("article 1") and the other "Angel number two has Allitt's disease" ("article 2"). In article 1 extensive reference was made to the comments of four experienced doctors who had prepared reports for the custody case and in article 2 there were quotations from a report prepared for the case by one of the doctors. Both articles made it clear that there had been High Court proceedings relating to the child and these proceedings were described as being "a battle". It was therefore beyond challenge that the respondents had knowledge that the child had been the subject of High Court proceedings and it was accepted by the respondents that they were aware that they had printed significant extracts from reports that had been used as evidence in those proceedings. The Official Solicitor therefore sought and was granted leave to bring contempt proceedings against The Sun newspaper as the first respondent and its editor as second respondent, inviting the court to fine the first respondent and commit the second respondent to prison for the alleged contempt. In bringing the proceedings the applicant relied on s 12(1)(a) of the Administration of Justice Act 1960 as amended by the Children Act 1989.
On behalf of the respondents evidence was given as to their system of checking articles prior to publication. This was done by a team of in-house lawyers and, if the in-house legal department was closed, as it had been on 31 May 1993, then such advice was provided by a duty lawyer, a barrister of a number of years call. The second respondent stated that he was aware that there were direct quotations from medical reports in the articles in question but that it did not occur to him that he was not entitled to publish such quotations. He received no advice to the contrary from the duty lawyer and accordingly had not realized that s 12 of the Administration of Justice Act 1960 applied in this case. It was contended on behalf of the respondents that as the father himself could properly tell the respondents that he had obtained a residence order in relation to his son and as the respondents could then lawfully publish that order under s 12(2) of the 1960 Act, then the question of the protection of the child was no longer an issue, because that protection had lapsed. Further, it was argued that s 12(4) of the 1960 Act preserved a common law defence to a charge of contempt and therefore the court should only find the contempt proved under s 12(1)(a) if there was a threat to or interference with the administration of justice.
Held – finding the contempt proved: (1) It was clear that the story raised matters of public import and that the newspaper was entitled to publish it in itself, the issue being as to the use in the articles of quotations from and extensive references to the documents used in the court proceedings.
(2) It was common ground (i) that the Administration of Justice Act 1960 did not create a new offence but simply clarified the law relating to the subject, and (ii) that s 12 of the Act did not create or clarify an absolute offence, it being left to the court to decide whether
or not the action in question was a contempt of court.
(3) Contempt of court had to be proved according to the criminal standard of proof.
(4) There was no defence open to the respondents to say that they did not intend to commit a contempt, although a degree of knowledge would have to be established before such a contempt could be proved.
(5) The respondents were not careless in publishing the articles. They employed an experienced duty lawyer and if, as on this occasion, he was negligent in advice he gave them, then that did not mean that the respondents were negligent, still less reckless in employing him.
(6) However,it was plain that the second respondent knew that he was publishing information relating to court proceedings and that he must have known that those proceedings were private proceedings.
(7) The prohibition on publishing such information was imposed to protect the parties to the proceedings, the child in question, and those giving evidence in those proceedings. In this case, the doctors who submitted their reports would have anticipated that their evidence would be kept confidential as between themselves, the parties, and the court. This confidentiality had been broken and detailed reference had been made to the fact that the child's life had been endangered and the likely long-term effect of this on him. This went beyond that information which the husband could properly provide the newspaper and well beyond that which the newspaper could properly publish.
(8) It was not necessary for the court to find some interference with or threat to the administration of justice under s 12(1)(a) of the 1960 Act. It was in the public interest to draw attention to the continued employment of a nurse in a hospital when she was suffering from Munchausen syndrome by proxy but that did not justify quotations from reports used in private proceedings.
(9) The right of freedom of expression as upheld in Article 10 of the European Convention of Human Rights was subject to restrictions as were prescribed by law. Section 12(1)(a) of the 1960 Act was such a restriction and resulted from the pressing social need to ensure privacy in cases concerning the upbringing of children.
Statutory provisions referred to:Administration of Justice Act 1960, s 12 (as amended by the Children Act 1989, Sch 14, para 14).
European Convention on Human Rights, Article 10.
Cases referred to in judgment:Attorney General v Times Newspapers [1974] AC 273; [1973] 3 All ER 54.
F (Orse A) (A Minor) (Publication of Information), Re [1977] Fam 58; [1976] 3 WLR 307; [1976] 1 All ER 274.
Linghans v Austria (1986) 8 EHRR 407.
Scott v Scott [1913] AC 417.
Robin Spon-Smith for the applicant.
Lord Williams of Mostyn, QC and Beverly-Ann Rogers for the respondents.
JUDGMENTMr Justice Connell. On 28 May 1993 Beverley Allitt was sentenced to...
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