Re Trinity Mirror Plc
| Jurisdiction | England & Wales |
| Judge | THE QUEEN,V |
| Judgment Date | 01 February 2008 |
| Neutral Citation | [2008] EWCA Crim 50 |
| Docket Number | Case No: CAO 2007/03279C5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 01 February 2008 |
[2008] EWCA Crim 50
The Right Hon Sir Igor Judge, President of the Queen's Bench Division
The Right Hon Sir Mark Potter, President of the Family Division
Lord Justice Wilson
Lady Justice Hallett and
Mr Justice David Clarke
Case No: CAO 2007/03279C5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
IN THE MATTER OF AN APPEAL UNDER SECTION 159 CRIMINAL JUSTICE ACT
1988 FROM CROYDON CROWN COURT
H.H. JUDGE WARWICK MCKINNON
T2006/0697
Mr Gavin Millar QC and Mr Anthony Hudson (instructed by Charles Collier-Wright) appeared on behalf of the Appellants.
Mr Hugh Tomlinson QC and Miss Kate Blumgart (instructed by The Crown Prosecution Service) appeared on behalf of the Crown.
Mr Andrew Nicol QC ( instructed by the Official Solicitor to the Supreme Court) appeared on behalf of A and B, Minors.
Hearing date: 28 November 2007
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION:
This is the judgment of the Court.
This is an appeal by Trinity Mirror and three other media companies pursuant to s.159 of the Criminal Justice Act 1988 against an order made by H.H. Judge Warwick McKinnon at Croydon Crown Court on 11 April 2007, and varied by him on 7 June 2007. The order on 11 April was made shortly after the end of proceedings against Raymond Cortis (the defendant). Its effect was to restrain the media from identifying him and his convictions, on the basis that were he to be identified, his children, who were neither witnesses in the proceedings against him nor victims of his offences, would be likely to suffer significant harm. The question raised in this appeal is whether the judge had power to make this order, and if he did, whether he was right to make it. Two conflicting principles are engaged, first, the protection and well being of children, and second, open justice in courts exercising criminal jurisdiction.
On 15 December 2006, the defendant pleaded guilty to 20 counts of making or possessing indecent images of children. He downloaded them from the internet. A pre-sentence report was ordered, and following an application on his behalf, HH Judge MacRae made an order in the interests of his children restraining his identification. On 2 April 2007, when passing sentence, Judge McKinnon refused an application by a court reporter to discharge the order made on 15 December 2006. On 11 April having received written submissions on behalf of three of the four appellants, Judge McKinnon substituted for the order dated 15 December 2006, an order in different terms but to similar effect. On 19 April the appellants, represented by counsel, argued that the injunction should be discharged. The hearing was adjourned so that if possible the children should be represented. In the result a firm of solicitors, willing in principle to represent them, failed to secure public funding. At the adjourned hearing on 7 June Judge McKinnon delivered a careful judgment refusing to discharge the order made on 11 April. The terms were varied in a way which did not alter its practical effect.
On 9 October 2007 this court granted the appellants leave to appeal against the order dated 11 April 2007, as varied (“the order”) and invited the Official Solicitor to represent the children. We are grateful to the Official Solicitor for consenting to act, and to Mr Andrew Nicol QC who, on his instructions, appeared on behalf of the children. His written and oral arguments gave us valuable assistance.
The appeal was heard on 28 November 2007. Mr Gavin Millar QC, on behalf of the appellants, submitted that the judge had no power to make the order and, alternatively, that, if he had power, he was wrong to exercise it. Mr Nicol submitted that the jurisdiction existed, although its source was different from the one identified by the judge; and that he was right to exercise it.
At the hearings in the Crown Court, the prosecution had not supported the reporter's application for the discharge of the 15 December 2006 injunction, and in her initial written submissions in relation to the application for leave to appeal, Miss Blumgart suggested that it was at least arguable that the judge was entitled to make the order. However, at the hearing of this appeal, Mr Hugh Tomlinson QC on behalf of the Crown supported Mr Millar's contention that the judge lacked the necessary jurisdiction.
At the conclusion of the hearing we announced that the appeal would be allowed on the date when this judgment would be handed down. The reasons for this unusual order will become apparent later in the judgment. The result is that the judge's order remained in force until now. Today it is discharged.
The history of proceedings in Croydon Crown Court must be explained in greater detail.
History
At the hearing on 15 December 2006 no attempt, whether in the published court list or in the court itself, was made to withhold the defendant's name. After the pleas of guilty were taken at the invitation of both counsel, HH Judge MacRae adjourned for a pre-sentence report. At the same time the defendant's counsel asked him to make an order to prohibit any reporting of the case in the media which might identify the defendant's children. She informed the judge that:
(a) the defendant had two young children;
(b) they were both at school;
(c) the social services department of the local authority had become
involved with the family;
(d) the two children were on the Child Protection Register; and
(e) he was living separately from the children and their mother.
Counsel submitted that, given the nature of the offences, identification of the defendant's children in the press might cause difficulty for them, particularly at school. The judge agreed, and ordered that nothing should be published which would enable the defendant, and therefore his children, to be identified. The order would remain in force until further order, and could be reviewed by the sentencing judge. When counsel for the prosecution pointed out that the children were not complainants, the judge reiterated the facility for review at the date of sentence.
In the discussions no attempt was made to identify any statutory power under which the order might be made. However when the order was drawn up, it was headed as “ORDER UNDER SECTION 4(2) OF THE CONTEMPT OF COURT ACT 1981” and provided:
“An Order has been made under the above mentioned Act in relation to the above mentioned case to restrict the publication thereof.
REPORTING RESTRICTION
THERE IS TO BE NO REPORTING OF THIS CASE WHICH WOULD ENABLE THE DEFENDANTS IDENTITY AND THEREFORE HIS CHILDRENS IDENTITY TO BECOME KNOWN.
This order applies until Further Order.”
Section 4 of the Contempt of Court Act 1981 provides:
“(1) Subject to this section a person is not guilty of contempt of court under the strict liability rule in respect of a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith.
(2) In any such proceedings the court may, where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, … order that the publication of any report of the proceedings … be postponed for such period as the court thinks necessary for that purpose.”
Although the validity of the order dated 15 th December 2006 is not directly in question in this appeal, in our judgment the order was not “necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings”. Accordingly the invocation of s.4(2) of the Contempt of Court Act 1981 (the 1981 Act) was inapt. Mr Nicol did not suggest otherwise.
At the hearing on 2 April 2007, the defendant's name was again published in the court list, and referred to in open court. Passing sentence, Judge McKinnon concluded that the defendant did not pose a significant risk of serious sexual harm to members of the public and, in the light of his previous good character, his guilty plea, and the fact that none of the indecent material had been distributed, a community order for three years with requirements for supervision by a probation officer and attendance at a Sex Offender Group Work Programme would be appropriate. A reporter then present asked the judge to discharge the order dated 15 December 2006, of which, until then, he had been unaware. Counsel for the defendant explained that the order had been made for the protection of his two daughters, aged eight and six years, who lived locally and attended local schools. She submitted that, if it became known that the defendant had been convicted of offences relating to child pornography, the unusual surname which he and they shared would lead to their identification as his children, and to their exposure to bullying and unpleasantness at school. On behalf of the Crown, Miss Blumgart did not support the discharge of the injunction. The reporter, perceptively, responded to the effect that the arguments in favour of the order in this case would apply in almost every such case. However the judge was unpersuaded. He declined to discharge the order so as to protect the children from the sins of their father; and he noted with approval that the injunction had been made under s.4(2) of the 1981 Act.
On 11 th April three of the four appellants argued that s.4(2) did not confer the necessary jurisdiction on the Crown Court, which...
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