Re. AB (Application for reporting restrictions: Inquest)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Pepperall |
| Judgment Date | 27 June 2019 |
| Neutral Citation | [2019] EWHC 1668 (QB) |
| Docket Number | F90BM145,Case No: F90BM145 |
| Court | Queen's Bench Division |
| Date | 27 June 2019 |
[2019] EWHC 1668 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
Birmingham Civil Justice Centre
THE HONOURABLE Mr Justice Pepperall
Case No: F90BM145
Holly Quirk (instructed by Browne Jacobson LLP) for the Applicant
No appearance for any Respondent or Interested Party
Hearing date: 27 June 2019
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.
By an application issued on 19 June 2019, Worcestershire County Council seeks an order for reporting restrictions pursuant to s.39 of the Children & Young Persons Act 1933 in respect of a forthcoming inquest into the death of a 17-year-old girl who died in custody. In this judgment, I shall refer to the girl simply as AB. The application is made in order to protect AB's surviving siblings from distressing evidence about the fact that their sister took her own life and as to findings and further allegations of sexual abuse. There is evidence before me that the siblings are in foster care. They know that AB is dead but do not know how she died. They are described as vulnerable children who are struggling both with their grief and in their foster placements.
The Respondent to the application was named generically as the National News Media. The Council indicated its intention to serve the application on the Press Association.
On the day of issue, the application was considered on the papers by His Honour Judge Worster sitting as a High Court judge. Judge Worster ordered that the matter be listed before a High Court judge this week and gave directions for the filing and service of any evidence in response to this application and for the exchange of skeleton arguments. On the following day, the court sent out a notice of hearing listing this application for hearing today.
SERVICE
On 20 June 2019, the Council served the application notice and a short explanatory note upon the media by e-mail to the Press Association's Copy Direct service. In addition, it served the same documents by post upon a number of newspapers in both Worcestershire and the area in which the inquest will be held. The application notice states that the Council seeks:
“An order for reporting restrictions in respect of an inquest listed on 1–12 July 2019 pursuant to s.39 of the Children and Young Persons Act 1933.”
No further explanation was given save that the Council would rely on the attached witness statements and legal submissions. In fact, the attachments were not served with the application notice.
The Explanatory Note provided a little further information, namely that the forthcoming inquest into the death of a child, named as AB, would deal with “issues of a sensitive nature.” Anticipating success upon this application, it was then said:
“A Reporting Restrictions Order has been made to protect AB and her siblings' right to confidentiality and a private life. This does not restrict publication of information or discussion about the inquest, provided that such publication is not likely to lead to the identification of AB, her parents, her siblings and their parents or the local authority in which they are being cared for.”
No media organisation appeared before me. I did, however, have the benefit of written submissions lodged by the British Broadcasting Corporation both on its own behalf and on behalf of Guardian News & Media Limited. The BBC had requested sight of the Council's submissions and draft order. These were provided in redacted form on the evening of Tuesday 25 June 2019. Holly Quirk, who appears for the Council, explained the redactions to me. In essence, all references to AB's actual name, her date of birth, to the names of her parents and to the names and dates of birth of AB's siblings were redacted. Further, the details of a recent national newspaper article about the forthcoming inquest were redacted. In addition, all references to findings of sexual abuse by AB's father and of more recent disclosures of abuse by one of her siblings were redacted.
While ignorant of the detail of the case, the BBC expressed its concern as to the breadth of the order sought and therefore the extent of the infringement of the principle of open justice. It argued that the case would not be within s.39 at all unless the siblings were witnesses in the inquest and submitted that the relief sought appeared to go well beyond the scope of s.39.
Two local newspapers also contacted the Council's solicitors. One indicated that it had no interest in the matter. The other asked for and was given some information orally but was not provided with any further copy documents.
While not formally dealt with in the evidence before me, I was told that unredacted copies of the application, the supporting evidence and Ms Quirk's legal submissions were served upon the coroner scheduled to hear this inquest. No notice has, however, been given to the other interested parties in the inquest, being AB's parents, an NHS Trust and another local authority responsible for the secure accommodation in which AB died.
The general rule is that applications should be made by serving a notice of application on the proposed respondents not less than 3 clear days before the hearing. Rule 23.7(3) of the Civil Procedure Rules 1998 provides:
“When a copy of an application notice is served it must be accompanied by–
(a) a copy of any written evidence in support; and
(b) a copy of any draft order which the applicant has attached to his application.”
Equally, paragraph 2.2 of PD25A provides that the evidence in support of any application for an interim order must be served together with the application notice at least 3 clear days before the hearing.
Of course, justice is best done when the court hears both sides of a case. The rules do, however, allow parties to make applications without notice in appropriate cases. Rule 25.3(1) provides:
“The court may grant an interim remedy on an application made without notice if it appears to the court that there are good reasons for not giving notice.”
There is a further consideration in any case such as this where the relief sought might affect the exercise of the right to freedom of expression pursuant to Article 10 of the European Convention on Human Rights. Section 12(2) of the Human Rights Act 1998 provides that in such a case:
“If the person against whom the application for relief is made (‘the respondent’) is neither present nor represented, no such relief is to be granted unless the court is satisfied–
(a) that the applicant has taken all practicable steps to notify the respondent; or
(b) that there are compelling reasons why the respondent should not be notified.”
Warby J observed in Birmingham City Council v. Afsar [2019] EWHC 1560 (QB) that the law is “particularly strict” when it comes to applications for relief which, if granted, would interfere with the Article 10 right to freedom of expression. As he identified, s.12(2) is a jurisdictional threshold in that, unless the requirements of the subsection are satisfied, the Court has no power to grant an injunction. Warby J added, at [20]:
“The Court has repeatedly deprecated the making of applications without notice in cases which engage s.12 Human Rights Act 1998, without adhering to the requirements of the applicable rules and practice: see, for example, ND v. KP [2011] EWHC 457 (Fam); O'Farrell v. O'Farrell [2012] EWHC 123 (QB); Bristol City...
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