R (Dacre and another) v City of Westminster Magistrates Court
| Jurisdiction | England & Wales |
| Judge | Lord Justice Latham,Mr Justice Bennett |
| Judgment Date | 16 July 2008 |
| Neutral Citation | [2008] EWHC 1667 (Admin) |
| Date | 16 July 2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4247/2007 |
[2008] EWHC 1667 (Admin)
IN THE HIGH COURT OF JUSTICE
DIVISIONAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Latham
Mr Justice Bennett
Case No: CO/4247/2007
Jonathan Caplan QC and Sarah Palin (instructed by Reynolds Porter Chamberlain) for the claimants
NT in person (with Dr Michael Pelling as litigation friend)
Hearing date: Wednesday 18th June 2008
This is a claim by way of judicial review to quash the decision of District Judge Purdy on the 15 th May 2007 when he refused to stay private prosecutions brought by the interested party against the claimants. The summonses alleged breaches by the claimants of the provisions of ss.97 and 103 of the Children Act 1989, as amended, in that they were responsible for publishing material which was likely to identify the interested party's child, who was at that time involved in relevant proceedings in the county court. She has appeared before us in person, and has presented her case ably, assisted by Dr Pelling, who has assisted her not only in these proceedings, but also in presenting her case to the district judge. Dr Pelling has, in addition, sought to obtain from the court a declaration that reporting these proceedings in full, could not constitute, in itself, a breach of ss.97 and 103 of the Act.
The interested party was involved in 2006 in court proceedings with her husband relating to their daughter. These proceedings had become acrimonious. It had got to the stage that a judge had ordered that a penal notice be attached to an order for contact to be obeyed by the interested party, on the basis of the father's allegations that he had been denied contact under earlier orders. The interested party has always maintained that she had good reason for doing what she did.
Be that as it may, she felt aggrieved at the way she was being treated by the court. In order, as she put it, to see the other side of the story, she became interested in the organisation Fathers 4 Justice. She met and started a relationship with Matt O'Connor, the founder of the organisation; they now have a child of their own. She became active in the organisation. And on Saturday the 21 st May 2006, together with other members of the organisation, she took part in a demonstration during the live broadcasting of the National Lottery draw that evening. She, together with others, took off their outer tops to reveal t-shirts carrying the Fathers 4 Justice logo, went on to the stage, and shouted slogans supporting its aims.
Not surprisingly, this attracted media attention, not only because of the demonstration itself, but because of the interested party's involvement with the organisation. She was interviewed by three newspapers, the Mail, the Sun, and the Southern Daily Echo. Each of those newspapers carried a report of the demonstration in their editions on Monday the 22 nd May in which she was named.
The report in the Daily Mail, of which the first named claimant is the editor, and the second named claimants are the owners, headed the report:
““Hypocrite” of lottery demo.”
Together with the report, the Daily Mail published a posed photograph of the interested party and Matt O'Connor taken by a Daily Mail photographer and a still from the television broadcast showing her on the stage wearing the t-shirt. The article described the dispute between the interested party and her husband identifying him by name (which is not the same surname as is used by the interested party). Both the Sun and the Southern Daily Echo reported the demonstration in similar terms, in the sense that they set out the fact that she was in dispute with the father and was aggrieved by the way the courts had dealt with her case which is why she had become involved with Fathers 4 Justice. The Sun also identified the father's name, and reported someone familiar with the case as describing her joining the campaign for better custody rights for fathers as “hypocrisy”.
The interested party made no formal complaint at that stage, but agreed to be interviewed on the 23 rd May 2006, together with Matt O'Connor by a Daily Mail journalist, Helen Weathers, who previously had written an article about Matt O'Connor. The interview took place, and photographs were taken; but the article written as a result was never published. I will return to that interview later in the judgment.
Thereafter, the interested party took no further steps to complain to the Daily Mail, or to the Press Complaints Commission. On the 17 th July 2006, she attended at the City of Westminster Magistrates Court and applied for summonses against the claimants on the basis that the article of the 22 nd May 2006 amounted to an offence under s.97 (2)(6) of the Children Act 1989. The summonses were granted and served. The claimants then applied for a stay of proceedings on the grounds that they were an abuse of the process of the court. District Judge Purdy heard argument and evidence on the 1 st and 2 nd May 2007, and on the 15 th May 2007 dismissed the application to stay in a written ruling. The claimants challenge that ruling before us essentially on the grounds that no reasonable tribunal could come to any other conclusion but that the prosecution is an abuse of process on the material which was presented to the district judge.
The relevant provisions of the Children Act 1989, as amended, are as follows:
“Section 97 Privacy for children involved in certain proceedings
…
(2) No person shall publish to the public at large or any section of the public any material which is intended, or likely, to identify—
(a) any child as being involved in any proceedings before the High Court, a county court or a magistrates' court in which any power under this Act or the Adoption and Children Act 2002 may be exercised by the court with respect to that or any other child…
…
(6) Any person who contravenes this section shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 4 on the standard scale.
…
Section 103 Offences by bodies corporate
(1) This section applies where any offence under this Act is committed by a body corporate.
(2) If the offence is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity he (as well as the body corporate) shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.”
The proposed prosecutions are therefore based on the assertion that the material contained in the report in the Daily Mail on the 22 nd May 2006 was “likely” to identify the child, because of the identification of the interested party and the father, and the details given of the contested proceedings relating to the child. The irony, to use a relatively neutral word for the moment, is that one of the matters about which Fathers 4 Justice complain is what is described as the secrecy of the family courts; this irony is compounded by the fact that the interested party has been advised and helped by Dr Pelling, who is a doughty campaigner for open justice in family proceedings.
In order to evaluate the claimants' case, it is necessary to consider in a little more detail the evidence that was before the district judge. This consisted of written and oral evidence. On behalf of the claimants, that consisted of the statements of Elizabeth Hartley, Daniel Newling, and Helen Weathers, and exhibits to those statements, and the oral evidence of Daniel Newling and Helen Weathers. The evidence on behalf of the interested party was statements made by herself and Dr Pelling, and exhibits, and the oral evidence of herself and Dr Pelling.
As far as Elizabeth Hartley's evidence was concerned, that was primarily directed to providing a history of the claimants' attempts to persuade the Attorney General or the Director of Public Prosecutions to take over the prosecution. Daniel Newling's evidence was of critical importance. He was the journalist who interviewed the interested party on the 21 st May 2006 and wrote the article which was published on the 22 nd May 2006. Through contacts with Fathers 4 Justice, he discovered that the interested party had been the female demonstrator, and was in a relationship with Matt O'Connor. He interviewed her over the telephone. He described how he asked her why she became involved in Fathers 4 Justice, and also her about her family. He said:
“Initially she was not very keen to talk to me about her family.”
However, there is no doubt that she then gave him detailed information about the court orders and the fact that because she was aggrieved, she made contact with Fathers 4 Justice. She wanted some of the conversation to be off the record; and he made no notes in those parts of the conversation. He accepted that she did not refer to or identify the father of the child at any stage of the conversation. That was information which that he obtained from elsewhere. He contacted the father who made it clear that he did not want any publicity to be given to the case.
In his oral evidence, Daniel Newling confirmed his written statement. He said that he could not remember the interested party ever mentioning section 97 of the Children Act to him. The impression that the notes of evidence give is that he at that time did not know about...
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