Surrey County Council v ME and Others
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Keehan,Mr Justice Keehan |
| Judgment Date | 04 March 2014 |
| Neutral Citation | [2014] EWHC 489 (Fam) |
| Court | Family Division |
| Docket Number | Case No: NZ13C00100 |
| Date | 04 March 2014 |
[2014] EWHC 489 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Keehan
Case No: NZ13C00100
Ms S Morgan QC and Ms S Stone (instructed by Surrey County Council) for the Applicant
Mr D Bedingfield (instructed by Blackfords LLP) for the First Respondent
Mr M Love (instructed by Blavo & Co) for the Second Respondent
Ms E Lecointe (instructed by Russel-Cooke) for the Third, Fifth, Sixth and Seventh Respondents (through their Children's Guardian)
Mr R Littlewood (instructed by Creighton & Co) for the Fourth Respondent
Ms C Gallagher (instructed by Associated Newspapers Ltd, the British Broadcasting Corporation, the Press Association, Times Newspapers Ltd and Trinity Mirror Plc ) for the Eighth Respondent
Hearing dates: 19 February 2014
The judge gives leave for this judgment to be reported in this anonymised form. Pseudonyms have been used for all of the relevant names of people, places and companies.
Save to the extent identified in the judgment or the postscript below the judgment is being distributed on the strict understanding that in any report no person other than (a) ME, GYE and JE who may be named in any reporting of JE's criminal trial or (b) the advocates or the solicitors instructed by the parties (and other persons identified by name in the judgment itself) may be identified by his or her name.
Introduction
In this matter I am concerned with five young people or children who are the subject of care proceedings bought by Surrey County Council. They are GE, who is 16, JE, who is 14, JT, who is 10, NT, who is 5 and CT, who is 2.
The mother of all 5 children is the First Respondent, ME. The father of the older 2 young people is the Second Respondent GYE. The father of the 3 younger children was Neil Tulley.
On the night of 12–13 August 2013 Neil Tulley was killed by Joshua Ellis and his brother JE. They are both charged with his murder. Their criminal trial commenced on 13 February 2014 before HHJ Critchlow sitting in the Crown Court at Guilford.
On the first day of their trial both defendants indicated they would plead guilty to a charge of manslaughter. Those tendered pleas were not accepted by the Crown and the murder trial continues.
In the light of JE's indication of a plea of guilty to manslaughter and in light of publicity about the defendants prior to the matter arriving in the Crown Court, the trial judge lifted the order made pursuant to s39 Children and Young Persons Act 1933 prohibiting the identification of JE. This prompted the local authority to seek a reporting restrictions order in relation to all five children and ME and GYE.
The application for a reporting restriction order came before me for hearing in the late afternoon of 14 February 2014. The national media organisations had been given notice of the application by the CopyDirect service late the evening before, but the local press was only given notice on the morning of the 14 February. None of the media organisations were represented at that hearing. I accordingly proposed the application be adjourned over to 19 February 2014 to enable the media organisations to be represented and/or to make written representations. I made an interim reporting restrictions order to preserve the position until I had had the benefit of hearing full argument.
The parties agreed that was an appropriate course to follow as did Mr Farmer of the Press Association who was present in court. I am very grateful to Mr Farmer for alerting the court to the fact that at 3:55pm the papers would shortly be going to press. He kindly offered to provide the press with a copy of the approved draft order pending the same being drawn, sealed and formally served.
On 14 February I had before me a letter from the British Broadcasting Corporation (BBC) setting out its observations and objections on the application for a reporting restrictions order (RRO). By a letter dated 17 February I received similar representations on behalf of Guardian News and Media Ltd.
The Position of the Parties
The local authority, supported by the First and Second Respondents, the Children's Guardian and JE, seek a wide ranging RRO.
The terms of the RRO sought are as per the draft order attached as Annex 1 to this judgment.
At the hearing on 19 February I had the benefit of detailed and helpful written submissions from Ms Gallagher. She was instructed on behalf of five media organisations namely, Associated Newspapers Ltd, the BBC, the Press Association, Times Newspapers Ltd and Trinity Mirror plc.
Those media organisations strongly opposed the granting of a RRO in favour of any of the family members, whether in the terms sought by the local authority or at all.
I heard helpful oral submissions on behalf of all of the parties including on behalf of the five media organisations.
The Law
On the facts of this case Articles 8 and 10 of the European Convention on Human Rights and Fundamental Freedoms 1950 are engaged.
Article 8
Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 10
Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary.
Section 12 (4) of the Human Rights Act 1998 provides that:
The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appear to the court, to be journalistic, literary or artistic material (or to conduct connected with such material) to (a) the extent to which (i) the material has, or is about to, become available o the public, or (ii) it is, or would be,, in the public interest for the material to be published, [and] (b) any relevant privacy code.
There is no dispute that, in an appropriate case, the High Court has the power to make a reporting restrictions order. The issues in this case are:
i) Whether the court should make a RRO in respect of JE given his status as a defendant in criminal proceedings;
ii) Whether the court should make a RRO in respect of ME and GYE given that (a) the dysfunctional nature of the family's life was an important feature of the Crown's case against Joshua Ellis and JE and (b) GYE was called as a witness for the Crown on 17 and/or 18 February;
iii) Whether the court should make a RRO in respect of the four other children. In particular the principal issues were (a) whether there was sufficient cogent evidence to support the making of such an order and (b) what would be the purpose or benefit to them of a RRO.
The seminal case on the approach to be adopted when a court is invited to make a RRO is the decision of the House of Lords in Re S (a child) (Identifications: Restriction on Publication) [2005] 1 AC 593. It was held that an intense focus on the comparative importance of competing rights under Articles 8 and 10 was required. Neither Article has presumptive weight over the other and the proportionality test must be applied to each.
As Peter Jackson J observed in A Local Authority v M and Others [2012] EWHC 2038 (Fam) at paragraph 27:
"a conclusion that the Article 8 rights of individuals should prevail over the Article 10 rights of the public so as to restrict the reporting of criminal proceedings will be highly exceptional, though not beyond contemplation".
In that case Peter Jackson J granted a RRO restricting the reporting of a criminal trial of the relevant children's mother. I have taken account of the other two reported decisions where such orders were made namely, A Local Authority v A [2005] EWHC 1564 (Fam), a decision of a former President Sir Mark Potter, and City and County of Swansea v XZ and YZ v The Children, The Press, Media and Others [2014] EWHC 212 (Fam), a decision of Moor J.
There is annexed to the judgment in A Local Council v M a very helpful extract of key passages from the principal authorities in this area. I have had regard to all of them.
There are particularly strong and compelling arguments against any restriction being placed on the reporting of JE's criminal trial namely that:
i) The importance of open...
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London Borough of Waltham Forest v AD
...identified is no justification for permitting repetition of such publication". 12 In the case of Surrey County Council v. ME & Ors. [2014] EWHC 489 (Fam) I observed in relation to the evidence necessary in support of an application for reporting restriction orders: "There comes a point, how......