A (A protected party by his litigation friend, the Official Solicitor) and Another v Persons Unknown
| Jurisdiction | England & Wales |
| Judge | Sir Geoffrey Vos |
| Judgment Date | 09 December 2016 |
| Neutral Citation | [2016] EWHC 3295 (Ch) |
| Docket Number | Case No: HC-2016-003471 |
| Court | Chancery Division |
| Date | 09 December 2016 |
[2016] EWHC 3295 (Ch)
Sir Geoffrey Vos, Chancellor of the High Court
Case No: HC-2016-003471
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
The Rolls Building
The Royal Courts of Justice
7 Rolls Building, Fetter Lane,
London EC4A 1NL
Ms Philippa Kaufmann QC and Ms Ruth Brander (instructed by Scott-Moncrieff & Associates Ltd.) appeared for the Claimants, acting through the Official Solicitor
Mr Brian Farmer, a journalist, appeared on behalf of the Press Association
Hearing date: 9 th December 2016
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Sir Geoffrey Vos, the Chancellor of the High Court:
Introduction
This is a very rare case in which adults who were convicted of very serious crimes, whilst they were children, seek a permanent order restraining the press and all other persons from publishing their names or identities. The order is sought on the grounds that, if it is not made, there would be a very serious risk to their rights under articles 2, 3 and 8 of the European Convention on Human Rights (the "ECHR"), because the claimants would be at risk of attack by vigilantes and other persons seeking revenge against them.
The claimants are two brothers who are known in these proceedings as "A" (born in June 1997) and "B" (born in December 1998) respectively. They were each convicted on 3 rd September 2009 on guilty pleas, when they were aged 12 and 10 respectively, of very serious offences including causing grievous bodily harm with intent to three victims aged 11, 9 and 11 respectively. The case was known as the "Edlington case" and caused public outrage and revulsion. The press at the time used a series of epithets for the claimants, such as the "Devil Boys", the "Hell Boys" and the "Torture Bruvs".
The claimants were sentenced to indeterminate detention for the protection of the public with a minimum term of 5 years. They were released in early 2016.
Until midnight on Saturday 10 th December 2016, the identities of the claimants were protected by an order made by Keith J at their trial under section 39 of the Children & Young Persons Act 1933 (the "section 39 order"). The younger claimant, B, however, was to become 18 on Sunday 11 th December 2016, causing the section 39 order to lapse. This application was, therefore, brought on for hearing on Friday 9 th December 2016. The case of R (JC & another) v. The Central Criminal Court [2014] EWCA Civ 1777 makes clear that section 39 cannot be used after the subject has reached adulthood. Accordingly, unless another order were made, the identities of A and B would not have been protected after midnight on Saturday 10 th December 2016.
When Keith J made the section 39 order, he said it was necessary in the light of the publicity that the case had attracted, to prevent harm from other inmates, to avoid the expense of protecting the family from reprisals and to avoid the adverse impact of identification on the claimants' rehabilitation.
When the claimants were released, the Parole Board was satisfied that, after extensive rehabilitative work, it was no longer necessary for them to be confined to protect the public. Both claimants changed their names at that time by statutory declaration. Since their release, both claimants have received significant support. A has had difficulty adjusting, but has built good relationships with professionals, and B has made very good progress in education and in building the skills needed for independent living.
In the broadest of outline, the claimants contended that if a renewed anonymity order were not made in their favour, they would be at risk of vilification and physical attack from members of the public outraged by their crimes, so that they would be forced to move to a new area, perhaps repeatedly, and that their rehabilitation would be fatally affected.
The application
There was no application for the matter to be heard in private. Accordingly, the entire proceedings were conducted in open court with members of the press present.
The application that the claimants made was for an interim injunction against the world prohibiting publication of their names and addresses and of any information that might lead to them being identified by members of the public in connection with the offences for which they were convicted as children. The application was made under articles 2 (right to life), 3 (prohibition of torture), and 8 (right to respect for private and family life) of the ECHR scheduled to the Human Rights Act 1998 (the " HRA 1998"), on the basis that the order sought was a proportionate interference with the right to freedom of expression under article 10 of the ECHR.
The jurisdiction to grant such an injunction has been established in three previous cases: X v. O'Brien [2003] EWHC 1101 (QB) (the case concerning the child killer, Mary Bell) and Venables and Thompson v. News Group Newspapers Limited [2001] Fam 430 (the case concerning the killers of James Bulger), and Maxine Carr v. News Group Newspapers Limited [2005] EWHC 971 (QB) (the case concerning the girlfriend of Ian Huntley, the Soham murderer).
The claimants' solicitors have put the main national and local media organisations on notice of this application. The Guardian, Channels 4 and 5, the BBC, ITV and Johnston Press plc (which owns much of the local press around Doncaster, where the offences took place) all confirmed in writing that they did not intend to resist the application. The Press Association indicated in advance of the hearing that it would wish to make representations against the grant of an injunction. It appeared before me by a journalist, Mr Brian Farmer, whom I permitted to address the court.
Mr Farmer first informed the court that the Press Association did not want to be joined as a defendant to the proceedings because of the costs implications of doing so. He submitted that it was wrong that the media should have to subject itself to the risk of an award of adverse costs simply in order to oppose an order of this kind. He said that the Press Association could not afford to bear the costs. None of that affected the Press Association's wish to oppose the making of the proposed order. There was a debate between Mr Farmer and Ms Philippa Kaufmann QC, leading counsel for the claimants, as to whether or not the Press Association had actually responded to the claimants' solicitors' offer to provide it with the papers filed in support of the application on receipt of an undertaking only to use those papers for the purposes of this application. I took the view that nothing turned on that debate, because if the Press Association wished to mount substantive opposition to the order that was sought, I would have only considered an interim order on Friday 9 th December 2016 and would have adjourned the matter for an effective inter partes hearing to take place once the Press Association had been provided with the papers and had had a proper opportunity to consider them with its lawyers.
In the discussion which followed, I suggested that the Press Association might in due course wish to consider whether to apply to be joined as a named party to the proceedings and also for a pre-emptive costs order or a cost capping order under CPR Part 3.19. I suggested that I would be prepared to adjourn the matter for such applications to be dealt with, but that I would, as I have said, have to consider immediately whether an interim anonymity order should be made to protect the position on the expiry of the section 39 order.
In the result, after both Ms Kaufman and Mr Farmer had made their substantive submissions as to whether interim relief should be granted, I asked Mr Farmer to give me some indication of whether he thought it likely that the Press Association would indeed wish to make any of the applications that I had earlier intimated. After communicating with his office, Mr Farmer informed me that the Press Association felt that it had had the opportunity during the hearing on Friday 9 th December 2016 to raise its concerns, and that it would not wish to apply to be joined as a party to the proceedings or formally to appear to resist the order sought in future. Accordingly, I indicated that, in the absence of any media representative seeking to be joined in to the proceedings formally to oppose them, I would consider whether the injunction sought should be granted on a permanent rather than a temporary basis. It was clear that the claimants had had the opportunity to present all the evidence that they wished to rely upon, and that, despite many media organisations having been notified of the application and given the opportunity to appear to oppose, there was no opposition save that already advanced by Mr Farmer for the Press Association. I should mention also that, at that stage, a journalist in court from the Daily Mail asked for the opportunity to contact his office to see whether that newspaper wished to reconsider its position. Ultimately, that Daily Mail journalist informed me that his newspaper did not wish to advance any formal opposition.
Accordingly, I indicated towards the end of the hearing that I would deal with the application as if it were the application for a final injunction. I should also mention that, during the hearing I was informed that representatives of Doncaster Children's Services Trust were present in court. They were concerned for the interests of the claimants' younger sibling, BR, who is a child in his teens. In the result, they too...
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